Second
and Third Periodic Report of the United States of
America to the UN Committee on Human Rights Concerning
the International Covenant on Civil and Political Rights
Submitted by the United States of America to the
UN Committee on Human Rights Concerning the
International Covenant on Civil and Political Rights
October 21, 2005
I.
INTRODUCTION
II.
IMPLEMENTATION OF SPECIFIC PROVISIONS OF THE COVENANT
Article 1 -
Self-determination
3
Article 2 - Equal protection of rights in the
Covenant 10
Article 3 - Equal rights of men and
women
22
Article 4 - States of
emergency
31
Article 5 - Non-derogable nature of fundamental
rights 33
Article 6 - Right to
life
33
Article 7 - Freedom from torture or cruel, inhuman
or degrading treatment or punishment
45
Article 8 - Prohibition of
slavery
59
Article 9 - Liberty and security of
person
64
Article 10 - Treatment of persons deprived of their
liberty
69
Article 11 - Freedom from imprisonment for breach of
contractual obligation
78
Article 12 - Freedom of
movement
78
Article 13 - Expulsion of
aliens
79
Article 14 - Right to fair
trial
102
Article 15 - Prohibition of ex post facto
laws
109
Article 16 - Recognition as a person under the
law
109
Article 17 - Freedom from arbitrary interference
with privacy, family, home
110
Article 18 - Freedom of thought, conscience and
religion
119
Article 19 - Freedom of opinion and
expression
123
Article 20 - Prohibition of propaganda relating to
war or racial, national or religious
hatred
124
Article 21 - Freedom of
assembly
128
Article 22 - Freedom of
association
128
Article 23 - Protection of the
family
130
Article 24 - Protection of
children
134
Article 25 - Access to the political
system
146
Article 26 - Equality before the
law
156
Article 27 - The rights of minorities to culture,
religion and language
156
III.
Committee Suggestions and Recommendations
Annexes:
Annex I - Territorial Scope of Application of the
Covenant
Annex II - Programs to Protect Women from Violence
Annex III - Refugee Admissions from FY 1994 to FY
2004
I. INTRODUCTION
1. The Government of the United States of America
welcomes this opportunity to provide the Human Rights
Committee the U.S. combined second and third periodic
report on measures giving effect to U.S. undertakings
under the International Covenant on Civil and Political
Rights ("the Covenant") in accordance with Article 40
thereof. The organization of this periodic report
follows the General Guidelines of the Human Rights
Committee regarding the form and content of periodic
reports to be submitted by States Parties (CCPR/C/66/GUI/Rev.2).
2. The following information supplements that
provided in the U.S. Initial Report of July 1994 (CCPR/C/81/Add.4,
published 24 August 1994; and HRI/CORE/1/Add.49,
published 17 August 1994). It also supplements the
information provided by the U.S. delegation at the
meetings of the Human Rights Committee, which discussed
the Initial Report on 31 March 1995 (CCPR/C/SR.
1401-1402 and SR. 1405-1406, published 24 April 1995).
The information also takes into account the concluding
observations of the Committee, CCPR/C/79/Add.50;
A/50/40, paras. 266-304, published 3 October 1995, and
the 27 July 2004 letter of the Committee to the United
States in which the Committee invited the United States
to address several of its specific concerns.
3. In this consolidated report, the United States has
sought to respond to the Committees concerns as fully
as possible, notwithstanding the continuing difference
of view between the Committee and the United States
concerning certain matters relating to the import and
scope of provisions of the Covenant. In particular, in
regard to the latter, the United States respectfully
reiterates its firmly held legal view on the territorial
scope of application of the Covenant. See Annex I.
II. IMPLEMENTATION OF SPECIFIC PROVISIONS OF THE
COVENANT
Article 1 - Self-determination
4. The basic principle of self-determination remains at
the core of American political life, as the nation was
born in a struggle against the colonial regime of the
British during the eighteenth century. The right to
self-determination, set forth in Article 1 of the
Covenant, is reflected in Article IV, Section 4 of the
United States Constitution, which obliges the federal
government to guarantee to every state a "Republican
Form of Government."
5. The Insular Areas. The United States
continues to exercise sovereignty over a number of
Insular Areas, each of which is unique and constitutes
an integral part of the U.S. political family.
6. Paragraphs 12-25 of the Initial Report set forth
the policy of the United States of promoting
self-government in the Insular Areas of the United
States. At that time, the Insular Areas of the United
States included the Commonwealth of Puerto Rico, Guam,
the U.S. Virgin Islands, American Samoa, and the
Commonwealth of the Northern Mariana Islands; the United
States also administered Palau, at the time the sole
remaining entity of the Trust Territory of the Pacific
Islands.
7. The Insular Areas of the United States remain the
same, but the status of Palau has changed. In 1986, the
government of Palau and the government of the United
States signed a Compact of Free Association, which was
enacted into law by the U.S. Congress in the same year.
However, the Compact was not ratified by the people of
Palau until a November 1993 plebiscite. Approval of that
plebiscite led, on 1 October, 1994, to the
termination of the Trusteeship, independence for
Palau and the commencement of Palaus relationship of
free association with the United States. Palau became a
member of the United Nations on 15 December, 1994.
8. The Commonwealth of Puerto Rico. As
reported in paragraph 14 of the Initial Report, the
people of Puerto Rico expressed their views in a public
referendum in November 1993, in which continuation of
the commonwealth arrangement received the greatest
support, although nearly as many votes were cast in
favor of statehood. By contrast, a small minority of
some 5 percent chose independence. The people of Puerto
Rico more recently expressed their views in a public
referendum held on 13 December, 1998. The plebiscite
allowed for five options: (1) a "territorial"
commonwealth (0.1%); (2) free association (0.3%); (3)
statehood (46.5%); (4) independence (2.5%); and (5)
"none of the above" (50.3%). The majority, thus, chose
"none of the above." To address the schism in Puerto
Rico between those in favor of maintaining the
commonwealth status and those in favor of statehood, in
2000, the U.S. Congress held hearings on the right of
Puerto Rico to self-determination and passed legislation
assigning $2.5 million to educate Puerto Rico residents
about their self-determination choices regarding the
Islands future status.
American Indians
9. The United States is home to more than 560 federally
recognized tribes with about 50 percent of the American
Indian and Alaska Native population residing on or near
280 reservations. These tribal lands represent about
four percent of the United States' total land area.
10. In addition, there are approximately 56 million
acres held in federal trust for the use and benefit of
tribes and individual Indians. Trust land is maintained
both on and off Indian reservations, and may not be
alienated, encumbered, or otherwise restricted without
the approval of the Secretary of the Interior. A
significant number of acres of land are owned in fee
status whereby the United States holds the fee to the
land as a means of acquisition prior to converting the
land to trust land.
11. History of Indian Trust Accounts. The
federal government‑Indian trust relationship dates back
over a century. As to individual Indians,
pursuant to its assimilationist policy in the 19th
century, Congress passed the General Allotment Act of
1887, also known as the "Dawes Act." 25 U.S.C. §
331, et seq. (as amended). Under the General
Allotment Act, beneficial title of allotted lands vested
in the United States as trustee for individual Indians.
See Cobell v. Norton, 240 F.3d 1081, 1087
(D.C. Cir. 2001). The trust had a term of 25 years, at
which point a fee patent would issue to the individual
Indian allottee. See id. Allotment of
tribal lands ceased with the enactment of the Indian
Reorganization Act of 1934 ("IRA"). See id.
(citing 48 Stat. 984 (codified as amended at 25 U.S.C. §
461 et seq.)). Allotted lands remained allotted,
but the IRA provided that unallotted surplus Indian
lands return to tribal ownership. See id.
(citing 25 U.S.C. §
463). In keeping with the government's assimilationist
allotment policies, the 1934 Act extended the trust
period indefinitely for allotted lands. See
id. The federal government retained control of lands
already allotted but not yet fee‑patented, and thereby
retained its fiduciary obligations to administer the
trust lands and funds arising therefrom for the benefit
of individual Indian beneficiaries. See id.
These lands form the basis for some of the Individual
Indian Money ("IIM") accounts, which are monitored by
the Secretary of the Interior. See id. As
to the Indian tribes, the United States also holds lands
in trust for the tribes. The Secretary of the Interior
may collect income from tribal trust property and may
deposit it for the benefit of the relevant tribe in the
United States Treasury (or other depository
institution).
12. The American Indian Trust Fund Management
Reform Act. After Congress amended the Indian
Self‑Determination Act in 1994, tribes had the
opportunity (subject to the approval of the Bureau of
Indian Affairs of the Department of the Interior) to
manage their own trust accounts (including IIM
accounts). If a tribe chose not to manage its own trust
accounts, or if the BIA found that a tribe could not
fulfill the fiduciary obligations therein, the
government retained control over the accounts. See
Cobell, 240 F.3d at 1088. In 1994, Congress also
enacted the Indian Trust Fund Reform Act, which
recognized the federal government's preexisting trust
responsibilities. Pub. L. No. 103‑412 (1994). That Act,
among other things, outlined the "Interior Secretary's
duties to ensure 'proper discharge of the trust
responsibilities of the United States.'" Id. at
1090 (quoting 25 U.S.C. §
162a(d)).
13. In 1996, several beneficiaries of IIM accounts
brought a class action (the Cobell case) seeking
declaratory and injunctive relief, alleging that the
Secretaries of the Interior and Treasury breached their
fiduciary duties by mismanaging IIM accounts. See
Cobell, 240 F.3d at 1087. The district court
found for the plaintiffs in the initial phase of the
case, and the U.S. Court of Appeals for the District of
Columbia Circuit affirmed and remanded for further
proceedings. See id. at 1110. In September
2003, the district court entered a "structural
injunction" setting forth detailed requirements for both
trust administration and accounting. See
Cobell v. Norton, 283 F. Supp. 2d 66 (D.D.C. 2003).
That ruling is currently on appeal.
14. In 2002 and thereafter, various tribes sued the
government in federal district court and the Court of
Federal Claims, claiming that the government had failed
to provide accountings of their trust funds and trust
assets and had mismanaged those funds and assets. As
relief, the plaintiffs seek accountings and money
damages. Currently, there are 25 tribal trust accounting
and asset mismanagement cases pending against the
government.
15. Committee Recommendation: That steps be
taken to ensure that previously recognized aboriginal
Native American rights cannot be extinguished. The
term "recognized aboriginal rights" does not have a
meaning per se in U.S. Indian law and
practice. Moreover, under U.S. law recognized tribal
property rights are subject to diminishment or
elimination under the plenary authority reserved to the
U.S. Congress for conducting Indian affairs.
16. Committee Recommendation: That the
government ensure that there is a full judicial review
in respect of determinations of federal recognition of
tribes. The U.S. regulatory process for recognizing
tribal governments is set forth in 25 C.F.R. Part 83; it
provides that determinations may be reviewed in federal
court. In particular, an administrative decision not to
recognize a tribe can be challenged in federal court.
Also, Congress retains the authority, subject to some
constitutional constraints, to recognize Indian groups
as tribes.
17. Committee Recommendation: That the
Self-Governance Demonstration Project and similar
programs be strengthened to continue to fight the high
incidence of poverty, sickness and alcoholism among
Native Americans. The Self-Governance Demonstration
Project became a permanent program for the U.S.
Department of the Interior in 1994 and for the U.S.
Department for Health and Human Services in 2003. See
25 U.S.C. §
458aa et seq. As of 2003, more than 200 tribes
had participated in the program under 81 agreements with
the United States which were funded at a total cost of
$304,857,315. The Self-Governance Program continues to
be credited with the improved delivery of services to
American Indians and Alaska Natives.
18. Committee Request: Describe the
constitutional and political processes -- including the
legislative, administrative or other measures in force
-- which in practice allow the exercise of the right of
self-determination within the U.S. Under the concept
of tribal self-determination, the tribes have the right
to operate under their own governmental systems within
the American political framework. In Article 1, Section
8, Clause 3 of the United States Constitution, tribes
are recognized as political entities with a
government-to-government relationship with the United
States. The United States enables, assists, and supports
the exercise of tribal self-determination. One example
of this government support of the exercise of tribal
self-determination and self-governance is through Indian
Self-Determination Contracts and Grants for the entire
range of governmental programs frequently administered
by tribal governments, including health, education,
human services, public safety and justice, community
development, resources management, trust services, and
general administration.
19. Current policy. As stated by President
George W. Bush on 23 September 2004, "my administration
is committed to continuing to work with federally
recognized tribal governments on a government to
government basis and strongly supports and respects
tribal sovereignty and self-determination for tribal
governments in the United States." George W. Bush,
Memorandum for the Heads of Executive Departments and
Agencies. President Bush stated that his administration
would continue to provide Native Americans "with new
economic and educational opportunities." Proclamation
No. 7500, 66 Fed. Reg. 57, 641 (Nov. 12, 2001). See
also, George W. Bush, Letter Celebrating the 35th
Anniversary of President Richard Nixon's Special Message
to Congress on Indian Affairs, (July 1, 2005); George W.
Bush, Proclamation of National American Indian Heritage
Month, (Nov. 4, 2004); and, George W. Bush,
Government-to-Government Relationship with Tribal
Governments, (Sept. 23, 2004).
20. Committee Request: Describe the factors
or difficulties which prevent the free disposal by
peoples of their natural wealth and resources contrary
to the provisions of Article 1 of the Covenant and the
extent to which such prevention affects the enjoyment of
other rights set forth in the Covenant. Under the
concept of tribal self-determination, the tribes have
the right to operate under their own governmental
systems within the American political framework. In some
circumstances, the United States may require that Native
Americans secure the consent of the federal government
prior to disposing of their property or natural
resources. Native Americans are the owners of land and
resources, which may be held in either trust or in fee.
In either case, there are processes available for the
disposal or alienation of the land or the natural
resources if they so choose, with the consent of the
federal government.
21. Committee Request: Discuss any
restrictions or limitations even of a temporary nature
imposed by law or practice on the enjoyment of the right
to self-determination. Under U.S. law, tribes enjoy
self-determination regarding issues that have an impact
on them or have a nexus with their endeavors, affairs,
operations, members, etc. U.S. law, however, makes
tribal sovereignty subject to the plenary power of
Congress.
22. As reported in paragraph 47 of the Initial
Report, in the area of criminal jurisdiction, Congress
during the 1950s gave several of the states authority to
exercise concurrent jurisdiction on Indian reservations.
18 U.S.C. §
1162; 28 U.S.C.
§ 1360. Also, in 1968 Congress limited the tribal
exercise of criminal jurisdiction to misdemeanors. 25
U.S.C. §
1302(7). While the Supreme Court subsequently concluded
that tribes do not have criminal jurisdiction over
non-Indians, Oliphant v. Suquamish Indian Tribe,
435 U.S. 191 (1978), last year the Supreme Court
affirmed that Indian tribes do have the jurisdiction and
authority to prosecute non-member Indians for crimes
committed on their reservations. See United
States v. Lara, 541 U.S. 193 (2004).
23. Committee Request: Describe any factors
or difficulties affecting the enjoyment of the right to
self-determination by persons within the jurisdiction of
the State. Under the concept of tribal
self-determination, the tribes have the right to operate
under their own governmental systems within the American
political framework. To the extent that an owner of
trust or fee property is required to obtain federal
approval of development of land, a delay may occur in
obtaining that federal approval. With regard to
political status and cultural development, Indians are
citizens of the United States and enjoy the same rights
as other citizens. However, when indigenous individuals
are in tribal jurisdiction, as a member of the tribe,
enjoyment may be limited by the tribe, consistent with
the federal Indian Civil Rights Act, 25 U.S.C. 1301.
Indigenous governments control tribal membership and
therefore set the rules for the enjoyment of culture and
values within the tribe, outside of U.S. jurisdiction,
so long as they are not in violation of federal law.
Tribes generally maintain exclusive jurisdiction over
any misdemeanor committed by a tribal member within that
tribes jurisdiction.
24. Committee Request: Describe any
measures taken to promote the right of
self-determination in Non-Self-Governing and Trust
Territories under the control of the United States.
Please see paragraphs 5 through 8 of this report.
25. Committee Request: That the United
States should show broader willingness to recognize
Indian tribes. As reported in the Initial Report,
since 1978, the United States has been open and
accommodating of petitions for recognition. Efforts have
been made to streamline the process and isolate its work
from undue influence. The Federal Acknowledgment Program
maintains a public listing of petitioners which
evidences the large volume of petitions actively being
considered by the United States. A discussion of the
acknowledgment process can be found in paragraphs 51-53
of the Initial Report. Thus far, the status of 60 groups
has been resolved either by the U.S. Department of the
Interior or through special legislation.
Article 2 - Equal protection of
rights in the Covenant
26. The enjoyment by all individuals within the United
States of the rights enumerated in the Covenant without
regard to race, color, sex, language, religion,
political or other opinion, national or social origin,
property, birth or other status, was elaborated upon in
paragraphs 77-100 of the Initial Report.
27. Since submission of its Initial Report, the United States has
ratified the International Convention on the Elimination
of All Forms of Racial Discrimination; that Convention
entered into force for the United States on 20 November,
1994. The United States Initial Report under that
Convention was submitted to the UN Committee on the
Elimination of Racial Discrimination in September 2000.
Committee on the Elimination of Racial Discrimination;
Third periodic reports of States Parties due in 1999:
United States of America, U.N. Doc. CERD/C/351/Add.1
(2000). The United States was examined by that Committee
on that report in August 2001. Concluding Observations
of the Committee on the Elimination of Racial
Discrimination: United States of America, Comm. on the
Elimination of Racial Discrimination, 59th
Sess., U.N. Doc. CERD/C/59/Misc.17/Rev.3 (2001).
28. Classifications. Under the doctrine of
equal protection, it has long been recognized that the
government must treat persons who are "similarly
situated" on an equal basis, but can treat persons in
different situations or classes in different ways with
respect to a permissible state purpose. The general rule
is that legislative classifications are presumed valid
if they bear some reasonable relation to a legitimate
governmental purpose. See FCC v. Beach
Communication, Inc., 508 U.S. 307 (1993); McGowan
v. Maryland, 366 U.S. 420, 425-36 (1961). The most
obvious example is economic regulation. Both state and
federal governments are able to apply different rules to
different types of economic activities, and the courts
will review such regulation under a very deferential
standard. See, e.g., Williamson v. Lee
Optical Co., 348 U.S. 483 (1955). Similarly, the way
in which a state government chooses to allocate its
financial resources among categories of needy people
will be reviewed under a very deferential standard.
See Dandridge v. Williams, 397 U.S. 471
(1970).
29. Suspect classifications. On the other
hand, certain distinctions or classifications have been
recognized as inherently invidious and therefore have
been subjected to more exacting scrutiny and judged
against more stringent requirements. For example,
classifications on the basis of racial distinctions are
automatically "suspect" and must be justified as
necessary to a compelling governmental purpose and as
narrowly tailored to achieving a valid compelling
government interest. See, e.g., Adarand
Constructors, Inc. v. Pena, 515 U.S. 200 (1995);
Korematsu v. United States, 323 U.S. 214 (1944);
Brown v. Board of Education, 347 U.S. 483 (1954);
McLaughlin v. Florida, 379 U.S. 184 (1961);
Loving v. Virginia, 388 U.S. 1 (1967).
30. This rule was recently reiterated by the Supreme
Court in Johnson v. California, 125 S. Ct. 1141
(2005). Petitioner, a prison inmate, sued the California
Department of Corrections (CDC), alleging that the CDC's
unwritten policy of segregating new and transferred
prisoners by race violated the inmates constitutional
right to equal protection of the laws. The CDC contended
that the policy was necessary to prevent violence caused
by racial prison gangs and was thus reasonably related
to legitimate penological interests.
31. The Supreme Court held that the policy was
subject to strict judicial scrutiny since it was based
on racial classification, and thus the classification
was required to be narrowly tailored to further
compelling CDC interests. The court found that
compromising the inmate's equal protection rights was
not necessarily needed for proper prison administration.
The CDC's discretion and expertise in the unique area of
managing daily prison operations did not warrant
deference to the CDC's use of race as a means of
controlling prison violence.
32. The court has also affirmed the application of an
intermediate level of scrutiny to classifications by
gender. See United States v. Virginia, 518
U.S. 515 (1996) (stating military colleges male-only
policy was unconstitutional because the state failed to
provide an "exceedingly persuasive justification" for
categorically excluding admission of women).
33. Corrective or affirmative action. It
remains a matter of continuing interest in the United
States whether legislation may classify by race for
purposes of compensating for past racial discrimination.
The general rule that has evolved is that because race
is a "suspect classification," in this context as in all
others, it will be subject to "strict scrutiny" by the
courts. See, e.g., Adarand Constructors, Inc.
v. Perla, 515 U.S. 200 (1995); Richmond v. Croson,
488 U.S. 469 (1989). However, where an employer or other
entity has engaged in racial discrimination in the past,
it will generally be permitted (and may sometimes be
required) to accord narrowly tailored racial preferences
for a limited period of time, to correct the effects of
its past conduct. See Wygant v. Jackson Bd. of
Educ., 476 U.S. 267 (1986). Government entities,
however, may also attempt to address discriminatory acts
of others when the effects of such discrimination may be
extended by government policies.
34. Black Farmers. One of the major
issues addressed by the U.S. Department of Agriculture
(USDA) is the ongoing implementation of the historic
civil rights Consent Decree in the federal district
court case of Pigford v. Veneman, 355 F. Supp. 2d
148 (D.D.C. 2005); see also
Pigford v. Glickman,185 F.R.D. 82 (D.D.C. 1999).
Pigford is a class action lawsuit
brought by African American farmers who alleged that
USDA discriminated against them on the basis of their
race in its farm credit and non-credit benefit programs.
35. On 14 April, 1999, the U.S. District Court for
the District of Columbia approved a Consent Decree
resolving the case. See Pigford v. Glickman,
185 F.R.D. 82 (D.D.C. 1999).(A consent decree is an
order of a judge based upon an agreement, almost always
put in writing, between the parties to a lawsuit instead
of continuing the case through trial or hearing. A
consent decree is a common practice when the government
has sued to make a person or corporation comply with the
law or the defendant agrees to the consent decree in
return for the government not pursuing criminal
penalties.)
36. The Pigford Consent Decree set up a claims process under
which the individual claims of class members would be
adjudicated. Class members could either choose Track A,
which is an expedited process with a lesser evidentiary
standard and automatic relief for prevailing claimants;
or Track B, which entitles the claimant to a one-day
hearing before the Consent Decree Arbitrator in which
the typical evidentiary standard applies and the
claimant can receive any relief that the Arbitrator
awards.
37. As of 7 December, 2004, over 22,000 individuals
filed timely and eligible claims and chose Track A for
relief. Less than 200 individuals have chosen Track B.
The independent Adjudicator has issued decisions on most
of these claims. Over 61 percent of Track A claimants
have prevailed. The federal government has paid out over
$660 million on Track A claims and USDA has forgiven
over $15 million in debt. Many claimants who did not
prevail on their claims have filed petitions with the
Monitor for review of these decisions. Once the Monitor
completes her review, the claim may be sent back to the
Adjudicator or Arbitrator for reexamination pursuant to
the Monitors direction.
38. The Consent Decree implementation has continued
for over 5 years because far more claims were filed than
anyone anticipated when the document was signed and
approved. At the time the Consent Decree was signed,
class counsel anticipated that only 2,000-5,000
claimants would file claims under the Decree. However,
over 20,000 individuals filed claims under the Consent
Decree. Accordingly, it has taken a substantial time for
these claims to be processed and all that this entails
under the Consent Decree process. Virtually all of these
claims have now been processed and decisions issued on
the claims.
39. USDA has voluntarily taken several measures to
benefit Consent Decree claimants beyond those required
by the Consent Decree and subsequent Court orders. These
measures include refunds to prevailing claimants of
administrative offsets on discharged debts; extension of
the time for prevailing claimants to take advantage of
injunctive relief; and providing additional loan
servicing rights, affording some claimants an
opportunity to restructure their remaining debt.
40. Federal statutes. The Religious Land Use
and Institutionalized Persons Act of 2000 (RLUIPA), 42
U.S.C. §
2000cc, et seq., (2004), prohibits governments
from imposing a substantial burden on the exercise of
religion or otherwise discriminating against individuals
or organizations based on their religion through land
use regulation. RLUIPA also prohibits government-run
institutions, such as prisons, jails, and hospitals,
from imposing a substantial burden on the religious
exercise of an institutionalized individual. The
Attorney General can bring civil actions for injunctive
relief to enforce compliance with RLUIPA.
41. The Developmental Disabilities Assistance and
Bill of Rights Act of 2000, 42 U.S.C. §
15001 (2004), provides support for individuals with
disabilities to be more independent and have greater
control and choice over where they live and contribute
in their communities. The Help America Vote Act of 2002,
42 U.S.C. §
15301 (2004), established standards and funding to
strengthen the federal voting process by making it
easier for individuals with disabilities to vote. In
1998, Congress extended to technology the prohibition
against discrimination on the basis of disability.
Through section 508 of the Rehabilitation Act of 1973,
29 U.S.C. §
794(d)(2004),the federal government is required to make
its electronic and information technology accessible to
and usable by its customers and employees with
disabilities. Through eight different statutes, a
protection and advocacy system is funded in each U.S.
state to assist individuals with disabilities to
preserve, restore, or secure their rights under the law,
including the right to vote.
42. Aliens. Under United States immigration law,
an alien is "any person not a citizen or national of the
United States." 8 U.S.C. §
1101(a)(3). Aliens who are admitted and legally
residing in the United States, even though not U.S.
citizens, generally enjoy the constitutional and
Covenant rights and protections of citizens, including
the right to life; freedom from torture or cruel,
inhuman or degrading treatment or punishment;
prohibition of slavery; the right to liberty and
security of person; the right to humane treatment for
persons deprived of their liberty; freedom from
imprisonment for breach of contractual obligation;
freedom of movement; the right to fair trial;
prohibition of ex post facto laws; recognition as
a person under the law; freedom from arbitrary
interference with privacy, family and home in the United
States; freedom of thought, conscience and religion;
freedom of opinion and expression; freedom of assembly;
and freedom of association.
43. Legal aliens enjoy equal protection rights as
well. Distinctions between lawful permanent resident
aliens and citizens require justification, but not the
compelling state interests required for distinctions
based on race. Consistent with article 25 of the
Covenant, aliens are generally precluded from voting or
holding federal elective office. A number of federal
statutes, some of which are discussed above, prohibit
discrimination on account of alienage and national
origin.
44. Throughout the Immigration and Nationality Act,
Congress distinguishes lawful permanent residents (LPRs)
and non-LPRs. The federal courts have held that Congress
may draw such distinctions consistently with the Equal
Protection Clause of the Fifth Amendment so long as
there is a facially legitimate and bona fide reason for
treating the two classes disparately. See,
e.g., De Leon-Reynoso v. Ashcroft, 293 F.3d
633 (3d Cir. 2002); Jankowski-Burczyk v. INS, 291
F.3d 172 (2d Cir. 2002); Lara-Ruiz v. INS, 241
F.3d 934 (7th Cir. 2001).
45. With the creation of the Department of Homeland
Security (DHS) in 2003, Congress established an Officer
for Civil Rights and Civil Liberties. The Officer is
charged with reviewing and assessing information
concerning abuses of civil rights, civil liberties, and
discrimination on the basis of race, ethnicity and
religion, by employees or officials of the Department of
Homeland Security. The Officer has a unique internal
function of assisting the senior leadership to develop
policies and initiatives in ways that protect civil
rights and civil liberties. The Officer conducts
outreach activities to non-governmental organizations
and others to communicate the Offices role and the
Departments commitment to the protection of individual
liberties. The DHS Office for Civil Rights and Civil
Liberties has been actively working to develop
relationships with the Arab-American and Muslim-American
communities. Reaching out to immigrant communities is an
important part of a dialogue to address concerns
regarding racial, ethnic, and religious discrimination.
46. Education. The Equal Protection Clause of
the United States Constitution bars public schools and
universities from discrimination on the grounds of race,
sex, religion, or national origin. Under Title IV of the
Civil Rights Act of 1964, the U.S. Department of Justice
may bring suit against a school board that deprives
children of equal protection of the laws, or against a
public university that denies admission to any person on
the rounds of "race, color, religion, sex or national
origin." The Department of Justice continues to enforce
court-issued consent decrees against local school boards
that had engaged in racial segregation in the past in
cases that may date back 40 years. The Department of
Justice also investigates and brings new cases of
education discrimination.
47. The Department of Justice has investigated a
number of cases involving discrimination against or
harassment of Muslim or Arab children in public schools.
For example, the Department brought an action against a
school district that barred a Muslim girl from wearing a
hijab to school, resulting in a consent decree that will
protect the rights of students to wear religious garb.
Similarly, the Department obtained a settlement in a
case in which another girl was harassed by a teacher and
students because she was a Muslim.
48. The U.S. Department of Education administers a
number of programs that provide opportunities for the
participation of all students, including minorities and
women in elementary, secondary and higher education
programs, including magnet schools; educational equity
programs for women and other students; assistance to
school districts and others for the education of Native
Hawaiians, Native Americans and Alaskan Natives;
financial aid for all students including those who are
minorities or women; and grants to strengthen
historically Black colleges and universities and other
minority serving institutions. In addition, the
Elementary and Secondary Education Act of 1965 (ESEA),
as reauthorized by the No Child Left Behind Act of 2001
(20 U.S.C. 6301 et seq.) (NCLB Act), promotes high
educational standards and accountability in public
elementary and secondary schools, and thus provides an
important framework for improving student performance
for all students. The reauthorized ESEA requires, as a
condition of a states receipt of funds under the "Title
I" program, that the results of annual statewide testing
be published and broken out, at the school, school
district, and state levels, by poverty, race, ethnicity,
gender, migrant status, disability status, and limited
English proficiency to ensure that no group is left
behind. Each state is required to establish academic
content and achievement standards and define adequate
yearly progress, for the state as a whole and for
schools and school districts, toward ensuring that all
students meet these standards. Adequate yearly progress
must include measurable annual objectives for continuous
and substantial improvement for all public elementary
and secondary students and for the achievement of
economically disadvantaged students, students from major
racial and ethnic groups, students with disabilities,
and students with limited English proficiency. If a
school or school district fails to make adequate yearly
progress, the school or district is subject to a
sequence of steps to address the situation, moving from
improvement, to corrective action, and to restructuring
measures designed to improve performance to meet state
standards. The reauthorized ESEA also focuses on reading
in the early grades through comprehensive reading
programs anchored in scientific research and through
enabling limited-English proficient (LEP) students to
learn English quickly and effectively through
scientifically based teaching methods.
49. The Department of Educations Office for Civil
Rights (OCR) enforces laws that prohibit discrimination
on the basis of race, color, national origin, sex,
disability, and age in programs that receive federal
financial assistance from the Department of Education.
These laws include: Title VI of the Civil Rights Act of
1964 (prohibiting discrimination based on race, color
and national origin); Title IX of the Education
Amendments of 1972 (prohibiting sex discrimination in
education programs); Section 504 of the Rehabilitation
Act of 1973 (prohibiting disability discrimination); Age
Discrimination Act of 1975 (prohibiting age
discrimination); and Title II of the Americans with
Disabilities Act of 1990 (prohibiting disability
discrimination by public entities, whether or not they
receive federal financial assistance).
50. The Individuals with Disabilities Education Act
(IDEA), 20 U.S.C. §
1400 et seq., requires public schools to make available
to all eligible children with disabilities a free
appropriate public education in the least restrictive
environment appropriate to their individual needs. The
IDEA requires school systems to develop appropriate
individualized programs for each disabled child designed
to meet the childs specific educational needs.
51. Additionally, the IDEA Amendments Act of 1997 and
its implementing regulations, at 20 U.S.C. §
1418(c) and 34 C.F.R. 300.755, provide for the
collection and examination of data to determine if
significant disproportionality based upon race is
occurring in the state with respect to the
identification of children with disabilities and their
placement into particular educational settings. Where
significant disproportionality exists, states must
provide for the review and, if appropriate, revise the
policies, procedures, and practices used in such
identification or placement to ensure that they comply
with the requirements of the IDEA. The Office of Special
Education Programs (OSEP) administers the IDEA and
requires each state to include information on
disproportionality in its Annual Performance Report.
52. The Supreme Court ruled that under the Americans
with Disabilities Act of 1990 (ADA), states are required
to place individuals with mental disabilities who are in
the states care in community settings rather than in
institutions when the states treatment professionals
have determined that community placement is appropriate,
the individual does not oppose the transfer from
institutional care to a less restrictive setting and the
community setting placement can be reasonably
accommodated, taking into account the states resources
and the needs of others with mental disabilities. See
Olmstead v. L.C., 527 U.S. 581 (1999). In Executive
Order 13217, President Bush selected the top officials
in several federal agencies, including the Departments
of Education, Labor, and Housing and Urban Development,
to assist the states and localities in swift
implementation of the Olmstead decision to help ensure
that all Americans have the opportunity to live close to
their families and friends, to live more independently,
to engage in productive employment, and to participate
in community life. Executive Order 13217 (June 18,
2001).
53. While the Equal Protection Clause of the
Constitution bars governmental discrimination on the
basis of race, the Supreme Court has permitted the use
of race as a factor when it serves a compelling
government interest and is narrowly tailored to achieve
that interest. In Grutter v. Bollinger, 539 U.S.
306 (2003), the Supreme Court upheld the University of
Michigan Law School's "affirmative action" program,
which allowed the racial and ethnic background of
applicants to be considered as a factor in admission
decisions. The Court found that the Law School's use of
race in admissions to obtain the educational benefits
that flow from a diverse student body is constitutional,
i.e., that attaining a diverse student body may qualify
as a "compelling" interest and that the Law School's use
of race is narrowly tailored to achieve this goal. On
the issue of whether attaining a diverse student body
was a compelling interest, the Court deferred to the Law
School's educational judgment that such student body
diversity is essential to its educational mission. The
Court found the Law School's program to be narrowly
tailored to achieve this goal because its interest in
achieving a critical mass of minority students was a
flexible goal and not a quota, it did not preempt a
holistic review of each applicant's file, and it did not
"unduly burden" individuals who are not members of the
favored racial and ethnic groups. The Court opined that
unlike the University of Michigan's undergraduate
admissions program, the Law School awarded no
"mechanical, predetermined diversity bonuses based on
race or ethnicity." The Court also held that
"race-conscious admissions policies must be limited in
time" and expressed an expectation that "25 years from
now, the use of racial preferences will no longer be
necessary to further the interest approved today." At
the same time, the Court in Gratz v. Bollinger,
539 U.S. 244 (2003), struck down the admissions policies
of the same universitys undergraduate program on the
ground that it operated as a mechanical quota that was
not narrowly tailored to achieve its goal of racial
diversity.
54. Community and Faith-Based Initiatives. In January
2001, the President launched an initiative to ensure
that community and faith-based organizations are allowed
to compete for federal financial assistance on a level
playing field to the full extent permitted by law,
without regard to the religious nature or lack thereof
of the applicant. The President signed two executive
orders on 29 January, 2001, that established a White
House Office of Faith-Based and Community Initiatives
and directed five federal agencies to establish their
own centers for this initiative, including the
Departments of Education, Justice, Labor, Health and
Human Services, and Housing and Urban Development.
Executive Orders 13198 and 13199 (January 29, 2001). On
4 June, 2004, the Department of Education issued final
regulations ensuring that faith-based organizations may
compete on an equal footing for Department funding and
that funded programs are implemented in a manner
consistent with the Constitution (69 Fed. Reg.
31708-15).
55. Education and Religion. Since the Initial
Report, the Supreme Court has decided a number of cases
involving religion and public schools. These cases fall
into two general categories: religious expression in
public schools and the funding of religious schools.
With regard to religious expression, the Supreme Court
has, in a number of decisions, made clear that while the
Establishment Clause of the United States Constitution
prohibits state-sponsored prayer in the public schools,
at the same time, religious expression by students is
constitutionally protected. Thus in Lee v. Weisman,
505 U.S. 577 (1992), the Supreme Court struck down a
public high schools practice of inviting a clergy
member to say a prayer at graduation, and in Santa Fe
Independent School District v. Doe, 530 U.S. 290
(2000), struck down a schools practice of holding a
prayer led by a student over a loudspeaker before
football games. In sharp contrast, the Supreme Court has
consistently struck down government discrimination
against student religious speech, even when carried out
in the name of separation of church and state. In
Good News Club v. Milford Central School District,
533 U.S. 98 (2001), the Court held that a school must
permit equal access to school facilities for
after-school meetings of a youth organization whose
activities included Bible lessons, prayer, and
religion-themed games, when the school had opened
facilities to various private secular organizations
serving the community. Similarly, in Rosenberger v.
Rector, 515 U.S. 819 (1995), the Court held a state
university that distributed funds to student
organizations could not deny funds to a student
organization that published a news magazine from a
Christian perspective.
56. In the area of funding for religious schools, the
Supreme Court has consistently held in recent years that
where an education benefit, such as a scholarship, is
provided to students on a religion-neutral basis, and
the students are free to use the benefit toward the
education of their choice, whether secular or religious,
providing such a benefit does not violate the
non-Establishment principle. See, e.g.,
Zelman v. Simmons-Harris, 536 U.S. 639 (2002). The
Supreme Court has also upheld various other forms of aid
to students at religious schools so long as it is
secular in nature, is distributed on a religion-neutral
basis, and is not open to diversion to religious uses.
Thus the Court in Mitchell v. Helms, 530 U.S. 793
(2000) upheld a federal program in which equipment such
as computers was loaned to schools, both religious and
secular, for purposes of instruction in secular
subjects. Likewise, in Agostini v. Felton, 521
U.S. 203 (1997), the Court upheld a program in which
public school employees went to private schools to
provide supplemental instruction to poor children with
disabilities.
57. Beginning in 2004, the U.S. Department of
Education began administering the D.C. Choice Incentive
Program. The purpose of the program is to give the
parents of school children in the District of Columbia
(DC) the opportunity to exercise greater choice in the
education of their children by giving eligible
low-income D.C. school children scholarships to attend
private schools, including private religious schools.
58. Education and aliens. The courts have held
that the constitutional guarantee of equal protection of
the laws applies to aliens who have made an entry into
the United States, even if such entry was unlawful. In
Plyer v. Doe, 457 U.S. 202 (1982), the Supreme
Court invalidated a Texas law which withheld state funds
from local school districts for the education of
undocumented alien children, and allowed local school
districts to refuse to enroll the children. The Court
first found that the Equal Protection Clause of the
Constitution applies to the undocumented alien children.
Then, although the Court did not treat the aliens as a
suspect class entitled to strict scrutiny of their
differing treatment, the Court nonetheless required the
state to demonstrate a rational basis for its
restrictions. The Court concluded that the state could
not meet this test, rejecting the states arguments that
denial of benefits was justified due to the childrens
lack of legal status and based on the states desire to
preserve resources for the education of the states
lawful residents.
59. Remedies. As reported in paragraph 98 of
the Initial Report, U.S. law provides extensive remedies
and avenues for seeking compensation and redress for
alleged discrimination and denial of constitutional and
related statutory rights. In addition to those
previously reported, under the Violent Crime Control and
Law Enforcement Act of 1994, 42 U.S.C. §
14141 (2004), the Attorney General can bring a civil
action for equitable relief against a governmental
authority to eliminate a pattern or practice of
constitutional violations committed by law enforcement
officers.
Article 3 - Equal rights of men and women
60. Constitutional protections. As discussed
in paragraphs 101 109 of the Initial Report, the
rights enumerated in the Covenant and provided by U.S.
law are guaranteed equally to men and women in the
United States through the Equal Protection and Due
Process Clauses of the Fourteenth and Fifth Amendments
of the United States Constitution. These provisions
prohibit both the federal government and the states from
arbitrarily or irrationally discriminating on the basis
of gender.
61. Gender Classifications. In Craig v.
Boren, 429 U.S. 190 (1976), the Supreme Court
articulated a standard which governed the field of
gender distinctions for several years: "[t]o withstand
constitutional challenge . . . classifications by gender
must serve important governmental objectives and must be
substantially related to achievement of those
objectives. Id. at 197; see also,
Califano v. Goldfarb, 430 U.S. 199 (1977);
Taylor v. Louisiana, 419 U.S. 522 (1975).
62. However, in United States v. Virginia, 518
U.S. 515 (1996), the Supreme Court articulated the
current standard for equal protection review of gender
distinctions. The justification for such distinctions
must be "exceedingly persuasive." Id. at 533.
"The burden of justification is demanding and it rests
entirely on the state. The state must show at least
that the [challenged] classification serves important
governmental objectives and that the discriminatory
means employed are substantially related to the
achievement of those objectives." Id., (quoting
Mississippi Univ. for Women v. Hogan, 458 U.S.
718, 724 (1982)). Furthermore, "[t]he justification must
be genuine, not hypothesized or invented post hoc in
response to litigation. And it must not rely on
overbroad generalizations about the different talents,
capacities, or preferences of males and females." Id.
63. In Nguyen v. INS, 533 U.S. 53 (2001), the
Supreme Court applied the Virginia standard to
uphold a federal immigration statute that makes
gender-based distinctions in the methods of establishing
citizenship for a child born out-of-wedlock overseas
where one parent is a U.S. citizen and the other is an
alien. The statute, 8 U.S.C. 1409(a), requires that
certain steps be taken to document parenthood when the
citizen-parent is the childs father but not when the
citizen-parent is the childs mother. The Court found
that the statute substantially serves the important
governmental objectives of ensuring the existence of a
biological relationship between the citizen-parent and
the child, as the mother-child relationship is
verifiable from the child's birth. Id. at 62. The
Court also reasoned that the statute ensures at least
the opportunity for the development of ties between the
child and the citizen-parent, and, in turn, the United
States, as the very event of birth provides such an
opportunity for the mother and child. Id. at
64-65. Because fathers and mothers are not similarly
situated with regard to proof of parentage, the Court
held that the gender-based distinctions in the statute
were justified. Id. at 63, 73. The Court also
noted that the additional requirements imposed upon
fathers were "minimal" and that the statute did not
impose "inordinate and unnecessary hurdles to the
conferral of citizenship on the children of citizen
fathers[.]" Id. at 70-71.
64. On 23 June, 2000, Executive Order 13160 was
issued prohibiting discrimination on the basis of a
number of classifications, including sex, in
federally-conducted education and training programs. 65
Fed. Reg. 39,775 (2000). This order applies to all
federally conducted education and training programs as a
supplement to existing laws and regulations that already
prohibit many forms of discrimination in both federally
conducted and federally assisted educational programs.
65. Discrimination based on pregnancy. The
Pregnancy Discrimination Act (PDA) of 1978, 42 U.S.C.
2000e(k)(2004), amended Title VII of the Civil Rights
Act of 1964 to provide that discrimination "on the basis
of sex" includes discrimination "because of or on the
basis of pregnancy, childbirth, or related medical
conditions[.]" The PDA requires that pregnancy be
treated the same as other physical or medical
conditions.
66. The PDA has been held to protect not only female
employees, but also the spouses of male employees. In
Newport News Shipbuilding and Dry Dock Co. v. E.E.O.C.,
462 U.S. 669, 684-85 (1983), the Supreme Court held that
a provision in an employers health insurance plan that
provided female employees with hospitalization benefits
for pregnancy-related conditions, but provided less
extensive benefits for spouses of male employees,
discriminated against male employees in violation of the
Civil Rights Act of 1964, as amended by the PDA. The
Court stated that the PDA "makes clear that it is
discriminatory to treat pregnancy-related conditions
less favorably than other medical conditions." Id.
at 684.
67. In International Union v. Johnson Controls,
Inc., 499 U.S. 187, 206 (1991), the Supreme Court
held that a battery manufacturers policy prohibiting
women capable of bearing children from working in jobs
involving lead exposure violated Title VII of the Civil
Rights Act of 1964, as amended by the PDA. The Court
recognized that the PDA prohibits discrimination not
only on the basis of pregnancy, but also on the basis of
a woman's capacity to become pregnant. Id.
68. The PDA has been found to apply to contraceptive
coverage in employer health insurance plans. On 14
December, 2000, the U.S. Equal Employment Opportunity
Commission (EEOC) decided that the exclusion of
prescription contraceptives from a health insurance plan
that covered other comparable medical treatments was a
violation of Title VII of the Civil Rights Act of 1964,
as amended by the PDA. However, this was an
administrative reasonable cause determination, and not
an authoritative construction of the PDA.
69. Prohibition of Sex Discrimination in Education.
Title IX of the Education Amendments of 1972 (20 U.S.C.
1681 et seq.) is the principal federal law
that prohibits sex discrimination in education programs
or activities that receive federal financial assistance.
Federal regulations and guidelines require and assist
schools in addressing such issues as sexual harassment
and nondiscrimination in admissions, financial
assistance, course offerings, parental or marital
status, and opportunities to participate in
interscholastic and intercollegiate athletics. Each
school or educational institution is required to
designate an employee to coordinate its Title IX
responsibilities, including investigating complaints
alleging violations of Title IX.
70. Title IX is primarily enforced by the Department
of Educations Office for Civil Rights which
investigates complaints, issues policy guidance, and
provides technical assistance to schools (such as
training, and sponsorship of and participation in civil
rights conferences). Students and school employees may
also bring private lawsuits against schools for
violations of Title IX.
71. Furthermore, every federal agency that provides
financial assistance to education programs is required
to enforce Title IX. In August 2000, twenty federal
agencies issued a final common rule for the enforcement
of Title IX. In addition, Executive Order 13160, issued
in June 2000, prohibits discrimination based on sex,
race, color, national origin, disability, religion, age,
sexual orientation, and status as a parent in education
and training programs conducted by the federal
government.
72. Prohibition of Discrimination in Education on
the Basis of Pregnancy. The Title IX implementing
regulation at 34 C.F.R. 106.40(a) specifically prohibits
educational institutions that are recipients of federal
financial assistance from applying any rule concerning a
student's actual or potential parental, family, or
marital status, which treats students differently on the
basis of sex. The Title IX implementing regulation at 34
C.F.R. 106.40(b)(1) prohibits a recipient from
discriminating against any student, or excluding any
student from its education programs or activities,
including any class or extracurricular activity, on the
basis of such student's pregnancy or pregnancy related
condition, unless the student requests voluntarily to
participate in a separate portion of the program or
activity of the recipient. The Title IX implementing
regulation at 34 C.F.R. 106.40(b)(3) provides that if a
recipient operates a portion of its education program or
activity separately for pregnant students, to which
admittance is completely voluntary on the part of the
student, a recipient shall ensure that the instructional
program in the separate program is comparable to that
offered to non-pregnant students.
73. The Title IX implementing regulation at 34 C.F.R.
106.40(b)(2) provides that a recipient may require a
pregnant student to obtain the certification of a
physician that the student is physically and emotionally
able to continue participation in the normal education
program or activity so long as such a certification is
required of all students for other physical or emotional
conditions requiring the attention of a physician. With
respect to a recipient that does not have leave of
absence policies for students, or in the case of a
student who does not otherwise qualify for leave under
such a policy, the Title IX implementing regulation at
34 C.F.R. 106.40(b)(5) provides that a recipient shall
treat pregnancy and pregnancy-related conditions as a
justification for a leave of absence for so long a
period of time as is deemed medically necessary by the
student's physician, at the conclusion of which the
student shall be reinstated to the status which she held
when the leave began.
74. A recipient shall treat pregnancy and
pregnancy-related conditions in the same manner and
under the same policies as any temporary disability with
respect to any medical or hospital benefit, service,
plan, or policy which such recipient administers,
operates, offers, or participates in with respect to
students admitted to the recipient's educational program
or activity. 34 C.F.R. 106.40(b)(4).
75. Sexual Harassment. Sexual harassment has
been found to be a form of sex discrimination. Thus,
federal statutes prohibiting discrimination on the basis
of sex in employment, Title VII of the Civil Rights Act
of 1964, 42 U.S.C. 2000e et seq, and in
federally assisted education programs, Title IX of the
Education Amendments of 1972, 20 U.S.C. 1681, also
prohibit sexual harassment. In a series of decisions,
the Supreme Court has established the principles
underlying the application of these statutes to sexual
harassment. First, it is clear that same-sex harassment
is actionable, as long as the harassment is based upon
sex. See Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75 (1998). With
respect to employment, where harassment by a supervisor
results in a "tangible employment action" such as
demotion, discharge, or undesirable reassignment, the
employer is liable for a Title VII violation. Even if
there has been no such tangible employment action by the
employer, there may nonetheless be a Title VII violation
if workplace harassment is "sufficiently severe or
pervasive to alter the conditions of [the victims]
employment and create an abusive working environment."
See, Meritor Sav. Bank, FSB v. Vinson, 477
U.S. 57, 67 (1986) (citations and internal quotation
marks omitted). In such cases, however, an employer may
avoid liability if it demonstrates that: 1) it exercised
reasonable care to prevent and correct promptly any
sexually harassing behavior; and 2) the employee
unreasonably failed to take advantage of any preventive
opportunities provided by the employer or to avoid harm
otherwise. See, e.g., Faragher v. City
of Boca Raton, 524 U.S. 775, 807 (1998);
Burlington Indus. v. Ellerth, 524 U.S. 742, 765
(1998).
76. With respect to education, educational
institutions that receive federal financial assistance
may be liable for damages in sexual harassment suits if
school officials have actual notice of the harassment,
and respond to that notice with deliberate indifference.
See, e.g., Franklin v. Gwinnett County
Pub. Sch., 503 U.S. 60 (1992); Gebser v. Lago
Vista Indep. Sch. Dist., 524 U.S. 274 (1998);
Davis v. Monroe County Bd. of Educ., 526 U.S. 629
(1999).
77. Compensation for sex discrimination.
Section 706(g) of the Civil Rights Act of 1964 provides
that courts may enjoin respondents from engaging in
unlawful employment practices, and order such
affirmative action as may be appropriate, including
reinstatement or hiring of employees with or without
back pay, or any other equitable relief the court may
require. 42 U.S.C. 2000e-5(g)(1). Section 102 of the
Civil Rights Act of 1991 provides that Title VII claims
not involving disparate impact may result in
compensatory and punitive damages in addition to the
relief authorized by Section 706(g) of the Civil Rights
Act. 42 U.S.C. 1981a(a)(1). Punitive damages are
allowed when the plaintiff can demonstrate that the
defendant acted with malice or reckless indifference to
the plaintiffs federally protected rights, but are not
allowed against governmental entities. 42 U.S.C.
1981a(b)(1). The sum of compensatory and punitive
damages for each plaintiff cannot exceed $50,000 for
employers with between 14 and 100 employees, $100,000
for employers with 100 to 200 employees, $200,000 for
employers with 201 to 500 employees, and $300,000 for
employers with more than 500 employees. 42 U.S.C.
1981a(b)(3). Federally assisted educational institutions
may also be liable for damages for sex discrimination.
See Gebser, supra.
78. Family Leave. The federal Family and
Medical Leave Act (FMLA), 29 U.S.C. 2601 et seq.,
guarantees that employees who work for companies with 50
or more employees can take up to 12 weeks of unpaid
leave a year for the birth or adoption of a child, or
for a serious health condition of the employee or a
family member of the employee, including a child, spouse
or parent. The FMLA defines a serious health condition
as an illness, injury, impairment, or physical or mental
condition that involves in-patient care in a hospital,
hospice, or residential medical care facility, or
continuing treatment by a health care provider. 29 U.S.C.
2611(11).
79. The FMLA allows states to provide additional
protections, and several states have family leave laws
that are more generous than the FMLA. For example, some
states have family and medical leave laws that apply to
employers with fewer than 50 employees, provide longer
time periods for family and medical leave, use a more
expansive definition of "family member," or require
leave for participation in childrens educational
activities.
80. Title VII of the Civil Rights Act of 1964, as
amended by the Pregnancy Discrimination Act (PDA), also
imposes certain obligations on employers with respect to
maternity leave. The PDA requires that women affected by
pregnancy or childbirth be treated the same as others
for all employment-related purposes, including receipt
of benefits under fringe benefit programs and leave
time. Although an employer need not treat pregnancy more
favorably than other conditions, an employer may choose
to do so. See California Federal Savings & Loan Assn
v. Guerra, 479 U.S. 272, 285 (1987) (agreeing with
lower court that "Congress intended the PDA to be a
floor beneath which pregnancy disability benefits may
not drop not a ceiling above which they may not
rise") (quoting California Federal Savings & Loan
Assn v. Guerra, 758 F.2d 390, 396 (9th Cir. 1985)).
81. Violence Against Women. On 13 September,
1994, the U.S. Congress passed the Violence Against
Women Act (VAWA), a comprehensive legislative package
aimed at ending violence against women. Violent Crime
Control and Law Enforcement Act of 1994, 42 U.S.C.
13701 (2004).
82. VAWA was designed to improve criminal justice
responses to domestic violence, sexual assault, and
stalking and to increase the availability of services
for victims of these crimes. VAWA requires a coordinated
community response to domestic violence, sexual assault,
and stalking crimes, encouraging jurisdictions to bring
together multiple players to share information and to
use their distinct roles to improve community responses.
These players often include: victim advocates; police
officers, prosecutors, judges, probation and corrections
officials; health care professionals; leaders within
faith communities; survivors of violence against women;
and others.
83. VAWA and subsequent legislation created new
federal crimes involving interstate domestic violence,
interstate violation of a protection order, interstate
stalking, and firearms, strengthened penalties for
repeat sex offenders, and required states and
territories to enforce protection orders issued by other
states, tribes and territories. VAWA also created legal
relief for certain battered immigrants to prevent
abusers from discouraging undocumented alien victims
from calling the police or seeking safety due to their
unlawful status.
84. VAWA also created the National Domestic Violence
Hotline and authorized funds to support domestic
violence shelters, rape prevention education, domestic
violence intervention and prevention programs, and
programs to improve law enforcement, prosecution, court,
and victim services responses to violence against women.
85. The Violence Against Women Act of 2000 (VAWA
2000), Pub. L. No. 106-386, 114 Stat. 1464, enacted on
28 October, 2000, and codified at 42 U.S.C. 3796gg,
continued and strengthened the federal governments
commitment to helping communities change the way they
respond to these crimes. VAWA 2000 reauthorized critical
grant programs created by VAWA and subsequent
legislation and established new programs such as
initiatives addressing elder abuse, violence against
women with disabilities, and supervised visitation with
children in domestic violence cases. VAWA 2000 also
strengthened the original law by improving protections
for battered immigrants, sexual assault survivors, and
victims of dating violence and creating a new federal
cyberstalking crime.
86. The Office on Violence Against Women (OVW).
This office, a component of the U.S. Department of
Justice, was created in 1995. OVW implements VAWA and
subsequent legislation and provides national leadership
against domestic violence, sexual assault, and stalking.
Since its inception, OVW has launched a multifaceted
approach to responding to these crimes. In 2002,
Congress passed the Violence Against Women Office Act (Pub.L.
107-273, Div. A, Title IV, Nov. 2, 2002, 116 Stat. 1789)
which statutorily established the office. A description
of the comprehensive programs to protect women from
violence implemented by OVM, recent initiatives to
protect women from what is referred to as "stalking",
and other federal and state initiatives on this subject
is provided in Annex II.
87. Women and the economy. Several U.S.
federal agencies sponsor programs to advance the ability
of women to participate in the workplace. One such
agency is the Womens Bureau at the U.S. Department of
Labor. The Womens Bureau promotes 21st century
solutions to improve the status of working women and
their families. For example, GEM-Nursing (Group
E-Mentoring in Nursing) encourages young men and women
ages 15 to 21 to choose careers in nursing through a Web
site featuring information on nursing occupations and
associations, e-mentoring, and regional events. It is
modeled after GEM-SET (Girls E-Mentoring in Science,
Engineering, and Technology) which seeks to increase the
number of girls age 13 to 18 who pursue careers in
science, engineering, and technology through a Web site
offering online resources, e-mentoring, and information
about regional events. Other Womens Bureau programs
address financial security and workplace flexibility. To
improve womens financial savvy, the Womens Bureau
developed the Wi$e Up project for Generation X women
ages 22 to 35. Wi$e Up includes an eight-unit curriculum
available online and in classroom settings, e-mentoring,
and monthly teleconferences featuring speakers on
financial topics. To promote workplace flexibility
options, the Womens Bureau developed Flex-Options for
Women. This project brings together corporate executives
and entrepreneurs who volunteer to mentor business
owners interested in creating or enhancing flexible
workplace policies and programs.
88. Institutional mechanisms for the advancement
of women. The Womens Bureau was created by Congress
in 1920 to "formulate standards and policies that shall
promote the welfare of wage-earning women, improve their
working conditions, increase their efficiency, and
advance their opportunities for profitable employment."
The Director of the Womens Bureau is the principal
advisor to the Secretary of Labor on issues affecting
women in the labor force. The Womens Bureaus Fiscal
year 2003-8 Strategic Plan includes the following goals:
to increase womens employment in high-growth,
demand-driven occupations; increase opportunities for
women to take steps to improve their economic security
and retirement savings; and enhance womens quality of
life by increasing the number of employer flexible
programs and policies.
Article 4 - States of Emergency
89. Consistent with the information reported in
paragraphs 110 127 of the Initial Report, since
submission of that report, the United States has not
declared a "state of emergency" within the meaning of
Article 4 or otherwise imposed emergency rule by the
executive branch.
90. However, as reported in that section of the
Initial Report, there are statutory grants of emergency
powers to the President. Since the submission of the
Initial Report, the President has invoked the National
Emergencies Act, 50 U.S.C. 1601 et seq., to
declare a national emergency in the following
situations:
In 2001, the President of the United States issued a
number of executive orders after the September 11
terrorist attacks that declared a national emergency as
a result of those attacks pursuant to the National
Emergencies Act, 50 U.S.C. 1601-1651 (2005).
91. This invocation was misinterpreted by the (OSCE)
as action which required derogation under Article 4 of
the Covenant. In correspondence with the OSCE, the
United States explained that under U.S. law,
declarations of national emergency have been used
frequently, in both times of war and times of peace, in
order to implement special legal authorities and that
the Executive Orders made as a result of the September
11 attacks did not require derogation from its
commitments under the Covenant.
92. Judicial review. There have been no
adverse federal judicial rulings concerning the exercise
of emergency powers by the federal authorities since the
submission of the Initial Report.
93. In Hamdi v. Rumsfeld, 124 S. Ct. 2633
(2004), the Supreme Court stated that the United States
is entitled to detain enemy combatants, even American
citizens, until the end of hostilities, in order to
prevent the enemy combatants from returning to the field
of battle and again taking up arms. The Court recognized
the detention of such individuals is such a fundamental
and accepted incident of war that it is part of the
"necessary and appropriate" force that Congress
authorized the President to use against nations,
organizations, or persons associated with the September
11 terrorist attacks. 124 S.Ct. at 2639-42 (plurality
op.); id., at 2679 (Thomas J.,
dissenting). A plurality of the Court addressed the
entitlements of a U.S. citizen designated as an enemy
combatant and held that the Due Process Clause of the
United States Constitution requires "notice of the
factual basis for [the citizen-detainees]
classification, and a fair opportunity to rebut the
governments factual assertions before a neutral
decision maker." Id. at 2648. A plurality
of the Court observed: "There remains the possibility
that the [due process] standards we have articulated
could be met by an appropriately authorized and properly
constituted military tribunal," and proffered as a
benchmark for comparison the regulations titled, Enemy
Prisoners of War, Retained Personnel, Civilian Internees
and Other Detainees, Army Regulation 190-8, 1-6
(1997). Id. at 2651.
94. On 28 February, 2005, a federal district court
held that the Non-Detention Act, 18 U.S.C. 4001(a),
forbids the federal government from detaining Jose
Padilla as an "enemy combatant" and that the President
lacks any inherent constitutional authority to detain
Padilla. See Padilla v. Hanft, 2005 U.S.
Dist. LEXIS 2921 (D.S.C. Feb. 2005). In September of
2005, the district courts decision was reversed by the
Fourth Circuit. 2005 U.S. App. LEXIS 19465 (4th Cir.
2005). The Fourth Circuit held that the United States
Congress in the Authorization for Use of Military Force
Joint Resolution, 115 Stat. 224, provided the President
all powers "necessary and appropriate to protect
American citizens from terrorist acts by those who
attacked the U.S. on September 11, 2001." Id. at
*30. Those powers included the power to detain
identified and committed enemies such as Padilla, who
associated with al Qaeda and the Taliban regime, took up
arms against the United States in its war against these
enemies, a power without which the President could well
be unable to protect American citizens. Id. at
*31.
Article 5 - Non-derogable nature of fundamental
rights
95. There is no change from the information reported
in paragraphs 128 130 of the Initial Report.
Article 6 - Right to life
96. Right to life, freedom from arbitrary
deprivation. The United States constitutional
recognition of every humans inherent right to life and
the doctrine that that right shall be protected by law
were explained in paragraphs 131 - 148 of the Initial
Report.
97. In addition, the Born-Alive Infants Protection
Act of 2002, which was signed into federal law on 5
August, 2002, makes it clear that "every infant member
of the species homo sapiens who is born alive at any
stage of development" is considered a "person", "human
being", and "individual" under federal law. See 1
U.S.C. 8. This is true regardless of the nature of
the birth, and whether the live birth resulted from a
failed abortion procedure. Id.
98. Congress also enacted the Unborn Victims of
Violence Act of 2004 "to protect unborn children from
assault and murder." See Pub. L. No. 108-212.
Federal law now provides that whoever, in the course of
committing certain federal crimes, "causes the death of
. . . a child, who is in utero at the time the conduct
take place," is guilty of a separate offense and shall
be punished as if that death had occurred to the unborn
child's mother. See 18 U.S.C. 1841(a). If the
person engaging in such conduct intentionally kills the
unborn child, he will be punished for intentionally
killing a human being. See 18 U.S.C.
1841(a)(2)(C). This law does not, however, authorize the
prosecution of any woman with respect to her unborn
child, see 18 U.S.C. §
1841(c)(3), nor does it criminalize "conduct relating to
an abortion for which the consent of the pregnant woman,
or a person authorized by law to act on her behalf, has
been obtained or for which such consent is implied by
law." See 18 U.S.C. §
1841(c)(1).
99. Assisted suicide. In recent years, debate
has intensified in the United States over the question
of whether terminally ill people should have the legal
right to obtain a doctor's help in ending their lives.
The campaign to legalize assisted suicide, also called
the right-to-die movement, has been under way since the
1970s but became prominent in the 1990s, at least partly
because of the actions of Dr. Jack Kevorkian, a retired
Michigan pathologist. Kevorkian helped at least 50
people to die since 1990. In 1999, a Michigan jury
convicted Kevorkian of second-degree murder and he is
currently serving a 10 to 25 year prison sentence.
100. In November 1994, Oregon became the first state
to make assisted suicide legal. Its law, passed by a
slim margin in a voter referendum, allows doctors to
prescribe a lethal dose of drugs to terminally ill
patients who meet certain criteria. In June 1997, the
Supreme Court upheld two state laws that barred assisted
suicide. See, e.g., Vacco v. Quill,
521 U.S. 793 (1997); Washington v. Glucksberg,
521 U.S. 702 (1997). While finding that states could
make assisted suicide illegal, the court also made it
clear that states could legalize assisted suicide if
they so chose. The debate over assisted suicide
continues in the United States. Legislation legalizing
the practice has been introduced in a number of states.
However, physician-assisted suicide remains illegal in
every state except Oregon.
101. The Attorney General has determined that
assisting suicide is not a legitimate medical purpose
and therefore that the Controlled Substances Act of 1970
("CSA"), 21 U.S.C. §
801, bars physicians from prescribing
federally-controlled substances to assist in a suicide.
The validity of the Attorney General's determination is
the subject of litigation and is scheduled for decision
by the Supreme Court during the October Term 2005.
See Gonzales v. Oregon, 125 S.Ct. 1299
(2005).
102. The Supreme Court has recognized that a state
has "legitimate interests from the outset of the
pregnancy in protecting . . . the life of the fetus that
may become a child." See Planned Parenthood v.
Casey, 505 U.S. 833, 846 (1992). Accordingly, it has
held that "subsequent to viability, the state, in
promoting its interest in the potentiality of human
life, may, if it chooses, regulate, and even proscribe,
abortion except where it is necessary, in appropriate
medical judgment, for the preservation of the life or
health of the mother." Id. at 879. At the same
time, the Supreme Court has held that a state may not
place an "undue burden" on a woman's ability to abort a
pregnancy prior to viability, and has invalidated some
legislative efforts to protect an unborn child's right
to life on this ground. See e.g, Casey,
505 U.S. 833; Stenberg v. Carhart, 530
U.S. 914 (2000) (invalidating a state-law ban on a
procedure known as "partial birth abortion," because it
failed to allow an exception for the mother's health,
and because the vagueness of the statute's definition of
the procedure it prohibited had the effect of placing an
"undue burden" on a woman's ability to obtain abortion
by prohibiting certain common methods of abortion).
103. In 2003, Congress enacted a federal prohibition
on partial-birth abortion, finding that "[i]mplicitly
approving such a brutal and inhumane procedure by
choosing not to prohibit it will further coarsen society
to the humanity of not only newborns, but all vulnerable
and innocent human life, making it increasingly
difficult to protect such life." See Pub. L. No.
108-105 at §
2(14)(M). This statute includes a more precise
definition of the procedure it prohibits. In addition,
the statute contains a congressional finding that
"partial-birth abortion is never necessary to preserve
the health of a woman, poses serious risks to a woman's
health, and lies outside the standard of medical care."
See Pub. L. No. 108-105 at §
2(13). The validity of this statute is currently the
subject of litigation.
104. Capital Punishment. The federal government
and 38 states impose capital punishment for crimes of
murder or felony murder, and generally only when
aggravating circumstances were present in the commission
of the crime, such as multiple victims, rape of the
victim, or murder-for-hire.
105. Criminal defendants in the United States,
especially those in potential capital cases, enjoy many
procedural guarantees, which are well respected and
enforced by the courts. These include: the right to a
fair hearing by an independent tribunal; the presumption
of innocence; the minimum guarantees for the defense;
the right against self-incrimination; the right to
access all evidence used against the defendant; the
right to challenge and seek exclusion of evidence; the
right to review by a higher tribunal, often with a
publicly funded lawyer; the right to trial by jury; and
the right to challenge the makeup of the jury, among
others.
106. In two major decisions described also in
paragraphs 108 and 109, the Supreme Court cut back on
the categories of defendants against whom the death
penalty may be applied. In Roper v. Simmons, 125
S. Ct. 1183 (2005), the Court held that the execution of
persons who were under the age of eighteen when their
capital crimes were committed violates the Eighth and
Fourteenth Amendments. In Atkins v. Virginia, 536
U.S. 304 (2002), the Court held that the execution of
mentally retarded criminal defendants was cruel and
unusual punishment, in violation of the Eighth and
Fourteenth Amendments. The Supreme Court has repeatedly
refused to consider the contention that a long delay
between conviction and execution constitutes cruel and
unusual punishment under the Eighth Amendment. See,
e.g., Foster v. Florida, 537 U.S. 990
(2002). Also, the lower federal courts and state courts
have consistently rejected such a claim. See,
e.g., Knight v. Florida, 528 U.S. 990, 120
S.Ct. 459, 461 (1999) (THOMAS, J., concurring in denial
of certiorari).
107. Federal Death Penalty. The following three
federal capital defendants have been executed since the
enactment of the current federal death penalty statutes:
Timothy McVeigh was executed by lethal
injection at the U.S. Penitentiary at Terre Haute,
Indiana, on 11 June, 2001. He had been charged with
multiple offenses arising out of the 19 April, 1995,
bombing of the Alfred P. Murrah Federal Building in
Oklahoma City, Oklahoma, and resulting deaths of 168
victims. After a jury trial in the U.S. District Court
for the District of Colorado, McVeigh was convicted of
conspiracy to use a weapon of mass destruction, in
violation of 18 U.S.C. §
2332a; use of a weapon of mass destruction, in violation
of 18 U.S.C. §
2332a; destruction of government property by means of an
explosive, in violation of 18 U.S.C. §
844(f); and eight counts of first degree murder, in
violation of 18 U.S.C. §
1111 and 18 U.S.C. §
1114.
McVeigh appealed to the court of appeals, which
affirmed the convictions and death sentences. United
States v. McVeigh, 153 F.3d 1186 (10th
Cir. 1998). McVeigh then filed a petition for writ of
certiorari in the U.S. Supreme Court, which denied the
petition. McVeigh v. United States, 526 U.S. 1007
(1999). McVeigh later filed a motion to vacate his
sentence under 28 U.S.C. §
2255 in the district court, which denied the motion and
declined to issue a certificate of appealability.
United States v. McVeigh, 118 F. Supp. 2d 1137 (D.
Colo. 2000). McVeigh applied to the court of appeals for
a certificate of appealability, which the court denied.
McVeighs execution followed that decision.
Juan Raul Garza was executed by lethal
injection at Terre Haute on 19 June, 2001. After a jury
trial in the U.S. District Court for the Southern
District of Texas, Garza was convicted of numerous
offenses, including engaging in a continuing criminal
enterprise, in violation of 21 U.S.C. §
848(a) & (c), and committing three murders while engaged
in and in furtherance of a continuing criminal
enterprise, in violation of 21 U.S.C. §
848(e). He was sentenced to death for each of the
murders. The court of appeals affirmed. United States
v. Flores, 63 F.3d 1342 (5th Cir. 1995). The U.S.
Supreme Court denied his petition for a writ of
certiorari. 519 U.S. 825 (1996). Garza filed a motion to
vacate his sentence under 28 U.S.C. 2255, and the
district court denied the motion and declined to issue a
certificate of appealability. Garza then applied to the
court of appeals for a certificate of appealability, and
the court of appeals denied the application. United
States v. Garza, 165 F.3d 312 (5th Cir. 1999). The
U.S. Supreme Court again denied certiorari. 528 U.S.
1006. Garzas execution followed that denial.
Louis Jones was executed by lethal
injection at Terre Haute on 19 March, 2003. A jury in
the U.S. District Court for the Northern District of
Texas convicted Jones, a retired U.S. Army Ranger, of
kidnapping and killing Tracie McBride, a 19-year-old
private in the United States Army, in violation of 18
U.S.C. §
1201(a)(2). The jury sentenced Jones to death. Jones was
also convicted of assaulting Private Michael Peacock
with resulting serious bodily injury, in violation of 18
U.S.C. 113(f). Jones appealed his conviction and
sentence, which the court of appeals affirmed. United
States v. Jones, 132 F.3d 232 (5th Cir. 1998). The
U.S. Supreme Court granted Joness certiorari petition
and affirmed his conviction and sentence. Jones v.
United States, 527 U.S. 373 (1999). The Supreme
Court denied Joness petition for rehearing. See
Jones v. United States, 527 U.S. 1058 (1999).
Jones filed a motion to vacate sentence pursuant to
28 U.S.C. §
2255. Following an evidentiary hearing, the district
court denied the motion and Joness application for a
certificate of appealability. Jones applied to the court
of appeals for a certificate of appealability, which the
court denied on 27 March, 2002. United States v.
Jones, 287 F.3d 325 (5th Cir. 2002). The Supreme
Court denied certiorari. 123 S. Ct. 549 (2002). Joness
execution followed thereafter.
108. Juvenile Death Penalty. The application
of the death penalty to those who commit capital
offences at ages 16 and 17 had continued to be the
subject of substantial debate in the United States. This
debate was recently concluded by the Supreme Court in
its ruling in Roper v. Simmons, 125 S. Ct. 1183
(2005), holding that the Eighth and Fourteenth
Amendments forbid imposition of the death penalty on
offenders who were under the age of 18 when their crimes
were committed.
109. Mental defect. The U.S. Supreme Court has
restricted the death penalty, finding that it is a
disproportionate punishment where the defendant is
mentally retarded. See Atkins v. Virginia,
536 U.S. 304 (2002). In addition, a death penalty
eligible defendant is entitled to an individualized
determination that the death sentence is appropriate in
his case, and the jury must be able to consider and give
effect to any mitigating evidence that a defendant
proffers as a basis for a sentence less than death.
See Johnson v. Texas, 509 U.S. 350 (1993).
Moreover, where the prosecution identifies the
likelihood that a defendant will engage in violent
conduct in the future as a basis for returning a death
sentence and the only alternative to a death sentence is
life without the possibility of parole, the jury must be
informed that the defendant is parole ineligible, in
other words, where a life prison sentence could not
result in parole. See Simmons v. South
Carolina, 512 U.S. 154 (1994).
110. Capital Punishment and Consular Notification.
Since the initial report, a number of foreign nationals
who were tried and sentenced to death by one of the
states of the United States have sought to have their
convictions or sentences overturned based upon the
arresting authorities failure to provide timely
consular notification to the foreign national as
required under the Vienna Convention on Consular
Relations (VCCR). Paraguay, Germany, and Mexico each
brought suit against the United States in the
International Court of Justice (ICJ) under the Optional
Protocol to the VCCR, asking the court, inter alia,
to order the United States to provide new trials and
sentencing hearings to foreign nationals when the
competent authorities in the United States had failed to
provide consular notification as required under the
VCCR. See Vienna Convention on Consular
Relations (Paraguay v. U.S.), 1998; LaGrand
(Germany v. U.S.), 2001; Avena and Other Mexican
Nationals (Mexico v. U.S.).
111. The ICJ in LaGrand found that the
appropriate remedy for cases in which German nationals
are sentenced to severe penalties without having been
provided consular notification was for the United States
to provide, by means of its own choosing, review and
reconsideration of the conviction and sentence taking
into account the VCCR violation.[1]
In March 2004, the ICJ reiterated in Avena that
review and reconsideration was the appropriate remedy
for 51 Mexican nationals who the court found had not
been provided consular notification as required. [
In 1998, Paraguay withdrew its case, so the ICJ did not
rule on the merits.]
112. On 28 February, 2005, President Bush determined
that "the United States will discharge its international
obligations under the decision of the International
Court of Justice in Avena
by having state courts
give effect to the decision in accordance with general
principles of comity in cases filed by the 51 Mexican
nationals addressed in that decision."[2]
The U.S. government subsequently filed briefs with the
U.S. Supreme Court and the Texas Court of Criminal
Appeals in a case involving Ernesto Medellin, one of the
individuals named in Avena. The governments
amicus briefs argue that the Presidents
decision is binding on state courts and, consistent with
the U.S. government's longstanding interpretation of the
VCCR, that the VCCR does not grant a foreign national a
judicially enforceable right to challenge his or her
conviction or sentence in the United States.[3]
[ Osbaldo
Torres, one of the 51 Mexican nationals addressed by the
ICJ in Avena, had already had his death sentence
commuted to a term of imprisonment by the Governor of
Oklahoma, on 13 May, 2004. That same day, the Oklahoma
Court of Criminal Appeals remanded Mr. Torres case for
an evidentiary hearing on whether Mr. Torres was
prejudiced by the states violation of his rights under
the Vienna Convention on Consular Relations (VCCR) and
on his ineffective assistance of counsel claim. The
hearing was conducted on 29 November, 2004, and on 18
March, 2005, the district court judge found that Mr.
Torres was prejudiced because he was not adequately
informed of his rights under the VCCR. On 6 September,
2005, the Oklahoma Court of Criminal Appeals found that
Torres was actually prejudiced by the failure to inform
him of his rights under the Vienna Convention, but only
in the context of his capital sentence. In light of the
Governors grant of clemency and limitation of Torres
sentence to life without the possibility of parole, the
court found no further relief was required. Torres
v. State, 2005 OK CR 17.
[3] On 23 May, 2005, the U.S. Supreme Court dismissed
Mr. Medellins writ of certiorari as improvidently
granted, noting that he had filed a successive state
application for a writ of habeas corpus just four days
before oral arguments, and [t]hat state proceeding may
provide Medellin with the review and reconsideration of
his Vienna Convention claim that the ICJ required
Medellin v. Dretke, 544 U.S. __ (May 23, 2005). On
14 September, 2005, the Texas Court of Criminal Appeals
heard oral arguments in Ex Parte Jose Ernesto
Medellin.]
113. The United States concerns that the ICJs
decisions had interpreted the VCCR in ways not intended
or anticipated by the Parties led the United States to
withdraw from the Optional Protocol to the VCCR. The
Optional Protocol is a purely jurisdictional treaty
separate from the VCCR itself. Only about 30 percent of
the countries that are Party to the VCCR have chosen to
be a Party to the Optional Protocol.
114. The United States remains a Party to the VCCR
and is fully committed to meeting its obligations to
provide consular notification and access in the cases of
detained foreign nationals. As part of its on-going
effort to improve compliance with the VCCR, the
Department of States Bureau of Consular Affairs has
continued its aggressive program to advance awareness of
consular notification and access. Since 1998, the State
Department has distributed to federal, state and local
law enforcement over 1,000,000 training videos, booklets
and pocket cards that provide instructions for arrests
and detentions of foreign nationals (the text of the
booklet can be found at
http://travel.state.gov/law/notify.html). State
Department experts have conducted over 350 training
seminars on consular notification and access throughout
the United States and its territories. These included
formal training events, presentations and other
briefings at law enforcement and criminal justice
agencies conferences, training academies and
accreditation organizations, and judicial and
legislative groups. The State Department has also
produced an online training course that provides
personnel with up-to-date, interactive training on the
topic.
115. Victims of Crime. The Office for Victims
of Crime (OVC) in the Department of Justice administers
programs authorized by the Victims of Crime Act of 1984,
in addition to the Crime Victims Fund (the Fund) also
authorized by the same statute. The Fund is composed of
criminal fines and penalties, special assessments, and
bond forfeitures collected from convicted federal
offenders, as well as gifts and donations received from
the general public. Money deposited in this fund is used
to support a wide range of activities on behalf of crime
victims, including victim compensation and assistance
services, demonstration programs, training and technical
assistance, program evaluation and replication, and
programs to assist victims of terrorism and mass
violence. OVC administers two major formula grant
programs: Victim Assistanceand Victim Compensation.
During the past decade, these two formula grant programs
have greatly improved the accessibility and quality of
services for federal and state crime victims nationwide.
116. In 2003, Congress passed the Justice for All
Act, which sets out the following rights of victims of
federal crimes: The right to be reasonably protected
from the accused; the right to reasonable, accurate, and
timely notice of any public court proceeding, or any
parole proceeding, involving the crime or of any release
or escape of the accused; the right not to be excluded
from any such public court proceeding, unless the court,
after receiving clear and convincing evidence,
determines that testimony by the victim would be
materially altered if the victim heard other testimony
at that proceeding; the right to be reasonably heard at
any public proceeding in the district court involving
release, plea, sentencing, or any parole proceeding; the
reasonable right to confer with the attorney for the
government in the case; the right to full and timely
restitution as provided in law; the right to proceedings
free from unreasonable delay; the right to be treated
with fairness and with respect for the victim's dignity
and privacy.
117. Officers and employees of the Department of
Justice and other departments and agencies of the United
States engaged in the detection, investigation, or
prosecution of crime are required to make their best
efforts to see that crime victims are notified of, and
accorded, these rights.
118. In order to enforce these rights, the crime
victim, the crime victim's lawful representative, or the
government prosecutor may assert the rights in a federal
court. Failure to afford a right does not provide a
defendant grounds for a new trial, however, and the act
does not create a cause of action for damages or create,
enlarge, or imply any duty or obligation to any victim
or other person for the breach of which the United
States or any of its officers or employees could be held
liable in damages. In addition, the Department of
Justice was required, under the act, to create an
ombudsman for victims rights and provide for training
and possible disciplinary sanctions for employees who
fail to afford victims their rights.
119. In terms of immigration, DHS may grant relief in
the form of "U" visas to victims of crimes of violence
who have aided in the investigation or prosecution of
the perpetrators of violent crime. See
Trafficking Victims Protection Act of 2000 (TVPA), Pub.
L. 106-386, 114 Stat. 1464 (Oct. 28 2000), Division B,
the Violence Against Women Act of 2000 (VAWA). The U
visa may be available to a person who suffered
substantial physical or mental abuse as a result of
having been a victim of a serious crime, including rape,
torture, prostitution, sexual exploitation, female
genital mutilation, being held hostage, peonage (debtors
bound in servitude to creditors), involuntary servitude,
slave trade; kidnapping, abduction, unlawful criminal
restraint, false imprisonment, blackmail, extortion,
manslaughter, murder, felonious assault, witness
tampering, obstruction of justice, or perjury. See
INA 101(a) (15)(U); See alsoVTVPA
1513(b)(3). The U visa implementing regulations have
not yet been promulgated. DHS is holding possible U visa
cases pending publication of the implementing rule
and providing interim employment authorization to
applicants who establish prima facie eligibility.
120. Victim Assistance. Each year, all 50
states, the District of Columbia and various U.S.
territories are awarded OVC funds to support
community-based organizations that serve crime victims.
Approximately 5,600 grants are made to domestic violence
shelters, rape crisis centers, child abuse programs, and
victim service units in law enforcement agencies,
prosecutors offices, hospitals, and social service
agencies. These programs provide services including
crisis intervention, counseling, emergency shelter,
criminal justice advocacy, and emergency transportation.
States and territories are required to give priority to
programs serving victims of domestic violence, sexual
assault, and child abuse. Additional funds must be set
aside for underserved victims, such as survivors of
homicide victims and victims of drunk drivers.
121. Victim Compensation. All 50 states, the
District of Columbia, Puerto Rico and Guam, have
established compensation programs for crime victims.
These programs reimburse victims for crime-related
expenses such as medical costs, mental health
counseling, funeral and burial costs, and lost wages or
loss of support. Compensation is paid only when other
financial resources, such as private insurance and
offender restitution, do not cover the loss. Some
expenses, such as replacement of property that is stolen
or damaged, are not covered by most compensation
programs. Although each state compensation program is
administered independently, most programs have similar
eligibility requirements and offer comparable benefits.
122. Victims of International Terrorism. In
addition, the Victims of Crime Act (VOCA) (42 U.S.C.
10603c) authorizes the OVC Director to establish an
International Terrorism Victim Expense Reimbursement
Program to compensate eligible "direct" victims of acts
of international terrorism that occur outside the United
States, for expenses associated with that victimization.
123. Victims of Trafficking.
Victims who are considered to have been subjected to a
severe form of trafficking, and who agree to assist law
enforcement in the investigation of trafficking, may be
eligible for immigration relief, including "continued
presence" and the T-visa. These are
self-petitioning visas, under the TVPA. If granted, a
T-visa provides the alien with temporary permission to
reside in the United States and may lead to legal
resident status. The victim also receives an
authorization permit to work in the United States.
124. The Department of Homeland Security U.S.
Citizenship and Immigration Services (USCIS) processes
T-visas; the Department of Homeland Security Immigration
and Customs Enforcement (ICE) processes continued
presence requests. All victims of trafficking are
eligible for victim services upon their identification
by federal law enforcement. The types of services
available depend on: (1) whether a determination has
been made that the victim meets the definition of having
been subjected to a severe form of trafficking set out
in the TVPA; (2) the victims immigration status; and
(3) the victims willingness to assist with an
investigation and prosecution. To be eligible for
services, minor victims need not demonstrate a
willingness to assist law enforcement in an
investigation nor are they required to have continued
presence status. The Trafficking Victims Protection
Reauthorization Act (TVPRA) of 2003 mandated new
information campaigns to combat sex tourism, added some
refinements to the federal criminal law, and created a
new civil action provision that allows trafficking
victims to sue their traffickers in federal district
courts. The TVPRA provides enhanced protection for
victims of trafficking and assistance to family members
of victims, including elimination of the requirement
that a victim of trafficking between the ages of 15 and
18 must cooperate with the investigation and prosecution
of his or her trafficker in order to be eligible for a
T-visa, and making benefits and services available to
victims of trafficking also available for their family
members legally entitled to join them in the United
States.
125. Victims of Trafficking Discretionary Grant
Program. OVC also administers the Services for
Trafficking Victims Discretionary Grant Program, which
was authorized under the Trafficking Victims Protection
Act of 2000. Most trafficking victims do not come to the
United States with an immigration status that would
allow them to receive benefits and services. The TVPA
created a mechanism for allowing non-citizens who were
trafficking victims access to benefits and services from
which they might otherwise be barred. The TVPA allows
for the "certification" of adult victims to receive
certain federally-funded or administered benefits and
services such as cash assistance, medical care, food
stamps and housing. Minor (child) victims do not need to
be certified to receive such benefits and services, but
instead receive eligibility letters to the same effect.
Programs funded by OVC focus on providing comprehensive
and specialized services to victims of severe forms of
trafficking during the "pre-certification" period, in
order to address the emergency and immediate needs of
these victims before they are eligible for other
benefits and services.
Article 7 - Freedom from torture, or cruel,
inhuman or degrading treatment or punishment
126. Torture. As described in paragraphs 149
187 of the Initial Report, U.S. law prohibits torture at
both the federal and state levels within the United
States. On 27 October, 1990, the United States ratified
the UN Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment
("Convention Against Torture"). The United States
deposited its instrument of ratification with the UN on
21 October, 1994. The Convention Against Torture entered
into force for the United States on 20 November, 1994.
127. Federal Extraterritorial Offense of Torture.
Coincident with the entry into force of the Convention
Against Torture, the United States enacted the Torture
Convention Implementation Act, codified at 18 U.S.C.
2340A, which gave effect to obligations assumed by the
United States under Article 5 of the Convention Against
Torture. As provided in the statute, whoever commits or
attempts to commit torture outside the United States
(both terms as defined in the statute) is subject to
federal criminal prosecution if the alleged offender is
a national of the United States or the alleged offender
is present in the United States, irrespective of the
nationality of the victim.
128. Report to the Committee Against Torture.
On 19 October, 1999, the United States submitted its
initial report to the UN Committee Against Torture
describing in detail U.S. compliance with the
obligations it had assumed under the Convention Against
Torture. Comm. Against Torture, Initial reports of
States Parties due in 1995: United States of America,
U.N. Doc. CAT/C/28/Add.5 (2000). The Committee Against
Torture began discussion of the U.S. report with a U.S.
delegation on 10 May, 2000. Comm. Against Torture, 24th
Sess., 424st mtg., pt. 1, U.N. Doc.
CAT/C/SR.424 (2000). Discussion occurred over three
meetings (May 10, 11, 15) mtgs 424, 427, 431. Later,
the Committee Against Torture offered concluding
observations. Report of the Committee against Torture,
U.N. GAOR, 55th Sess., Supp. No. 44, at Ά
175-80, U.N. Doc. A/55/44 (2000). The United States
recently submitted its second periodic report to the
Committee Against Torture (available at
http://www.state.gov/g/drl/rls/45738.htm) and awaits
the invitation of the Committee Against Torture to
discuss that report.
129. Committee Request. In its letter of 27
July 2004, the Human Rights Committee requested,
inter alia, that the United States should address:
problems relating to the legal status and treatment of
persons detained in Afghanistan, Guantanamo, Iraq and
other places of detention outside the United States of
America (art. 7, 9, 10, and 14 of the Covenant).
130. The United States recalls its longstanding
position that it has reiterated in paragraph 3 of this
report and explained in detail in the legal analysis
provided in Annex I; namely, that the obligations
assumed by the United States under the Covenant apply
only within the territory of the United States. In that
regard, the United States respectfully submits that this
Committee request for information is outside the purview
of the Committee. The United States also notes that the
legal status and treatment of such persons is governed
by the law of war. Nonetheless, as a courtesy, the
United States is providing the Committee pertinent
material in the form of an updated Annex to the U.S.
report on the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment.
131. Cruel, inhuman or degrading treatment or
punishment. Cruel, inhuman or degrading treatment or
punishment. Below are examples of federal law
enforcement prosecutions for the mistreatment of people
in custody. Not all of these examples involve conduct
constituting cruel, inhuman or degrading treatment or
punishment as defined under Article 7, as ratified by
the United States. Mistreatment is conduct less severe
than that falling within the scope of U.S. obligations
under Article 7; in particular, mere violations of the
Fourth Amendment do not fall within the scope of those
obligations. Such examples are included simply to
demonstrate the scope of remedies that are available in
the United States for governmental misconduct:
On 14 July, 2004, an Oklahoma police officer was
convicted and awaits sentencing for assaulting and
fracturing the hip of a 67-year-old man the officer
stopped for a traffic violation. The officer was
prosecuted under 18 U.S.C. §
242 for intentional use of unreasonable force under the
color of law.
On 19 May, 2004, a Louisiana detention officer was
convicted and is awaiting sentencing for repeatedly
throwing a handcuffed detainee against a wall resulting
in significant lacerations to the victims face. The
officer was prosecuted under 18 U.S.C. §
242 for the willful use of force amounting to the
deprivation of the victims liberty without due process
under color of law.
On 25 March, 2004, the Eleventh Circuit affirmed
the conviction and sentence of a former deputy sheriff
with the Jacksonville, Florida Sheriffs Department, who
was charged and convicted for kidnapping, murdering, and
stealing money from motorists, bank customers, and drug
dealers whom he falsely arrested in 1998 and 1999. He
was sentenced to life in prison for, among other
charges, the violation of 18 U.S.C. §
241 for conspiracy to deprive one of the victims of life
and the others of liberty and property without due
process under color of law.
On 24 September, 2003, a North Carolina police
officer pleaded guilty to a felony civil rights charge
for coercing women, whom he stopped or arrested, into
having sex with him. He was sentenced to ten years in
prison for willful deprivation of liberty without due
process under color of law.
On 2 November, 2000, seven federal correctional
officers from the U.S. Penitentiary in Florence,
Colorado, were indicted for systematically beating
inmates and lying to cover-up their illegal conduct. On
24 June, 2003, the jury convicted the three ringleaders
on conspiracy and substantive counts. They were
sentenced to 30 and 41 months in prison for, among other
charges, the violation of 18 U.S.C. §
241 for conspiring to impose cruel and unusual
punishment under color of law. Three additional
defendants pled guilty to violating inmates civil
rights prior to trial.
On 15 August, 2001, a Maryland, K-9 [canine]
officer was convicted and thereafter sentenced to 10
years in prison for releasing her dog on two men who had
surrendered, resulting in serious injuries to the men.
On 9 November, 2000, a correctional officer
captain from a state of Florida jail pled guilty to
having forcible sexual contact with a female inmate and
was thereafter sentenced to 15 months in prison. He was
prosecuted under 18 U.S.C. §
242 for willful deprivation of the victims liberty
without due process under color of law.
On 7 February, 2001, six correctional officers
with the Arkansas Department of Corrections beat and
repeatedly shocked two naked and handcuffed victims with
a hand-held stun gun and six-foot long cattle prod.
During a separate incident, three of the six defendants
shocked and beat another handcuffed inmate. Ultimately,
five officers entered guilty pleas while the sixth was
convicted at trial. They were sentenced to terms of
incarceration ranging from 24 to 78 months under 18
U.S.C. 242 for imposing cruel and unusual punishment
under color of law.
Between 3 March, 2001 and 21 August, 2001, three
other correctional officers with the Arkansas Department
of Corrections pled guilty to assaulting an inmate while
he was handcuffed behind his back. They were later
sentenced to terms of incarceration ranging from 8 to 18
months in prison under 18 U.S.C. 242 for imposing
cruel and unusual punishment under color of law.
On 29 January, 2002, a North Carolina chief of
police was convicted of using excessive force in seven
separate incidents, involving six separate arrestees.
The defendant was sentenced to 37 months in prison for
willfully using unreasonable force under color of law in
violations of 18 U.S.C. 242.
On 23 March, 2000, a U.S. Bureau of Prisons
correctional officer in Oklahoma City was convicted of
engaging in various degrees of sexual misconduct with
five female inmates. As a result, he was sentenced to
146 months in prison under 18 U.S.C. §
242 for imposing cruel and unusual punishment under
color of law.
On 27 May, 2001, the last of five male orderlies
at a state-run care facility for developmentally
disabled adults near Memphis, Tennessee was convicted
for routinely beating residents. One of these beatings
resulted in the death of a developmentally disabled
patient who could not cry out for help because he was
mute. The five orderlies received sentences ranging from
60 to 180 months in prison under 18 U.S.C. §
242 for willful deprivation of the victims liberty
without due process under color of law.
On 23 January, 2001, a Florida Department of
Corrections officer with the Metro Dade Jail was
convicted of assaulting a female inmate resulting in
multiple contusions to her face, back, and neck. He was
sentenced to 17 months in prison under 18 U.S.C. §
242 for imposing cruel and unusual punishment under
color of law.
132. The civil rights laws have also been used to
prosecute judges who abuse their power. For example, in
1997, the U.S. Supreme Court upheld the conviction of a
Tennessee judge who was convicted by a jury of multiple
counts of sexually assaulting both female litigants who
had cases pending before him as well as female
courthouse employees. See United States v.
Lanier, 520 U.S. 259 (1997). Lanier received a
sentence of 25 years in prison.
133. Basic rights of prisoners. Complaints
about failure by individual law enforcement officers to
comply with procedural rights continue to be made to
federal and state authorities. The Criminal Section of
the Civil Rights Division of the United States
Department of Justice is charged with reviewing such
complaints made to the federal government and ensuring
the vigorous enforcement of the applicable federal
criminal civil rights statutes. There have been fewer
allegations of violation of procedural rights than
physical abuse allegations.
134. Civil Pattern or Practice Enforcement.
The Civil Rights Division of the U.S. Department of
Justice may institute civil actions for equitable and
declaratory relief pursuant to the Pattern or Practice
of Police Misconduct provision of the Crime Bill of
1994, 42 U.S.C. 14141, which prohibits law
enforcement agencies from engaging in a pattern or
practice of violating peoples civil rights. Since
October of 1999, the Civil Rights Division has
negotiated 16 settlements with law enforcement agencies.
These settlements include two consent decrees regarding
the Detroit, Michigan Police Department, and consent
decrees covering Prince Georges County, Maryland and
Los Angeles, California police departments. Other recent
settlements include those entered into with police
departments in the District of Columbia; Cincinnati,
Ohio; Buffalo, New York; Villa Rica, Georgia; and
Cleveland, Ohio. There are currently 13 ongoing
investigations of law enforcement agencies.
135. Civil Rights of Institutionalized Persons Act
(CRIPA). The Civil Rights of
Institutionalized Persons Act (CRIPA), 42 U.S.C. 1997
et seq., permits the Attorney General to
institute civil lawsuits against state institutions
regarding the civil rights of their residents, including
the conditions of their confinement and use of excessive
force. The Civil Rights Division of the Department of
Justice has utilized this statute to prosecute
allegations of torture and cruel, inhuman, and degrading
treatment or punishment. By August 2004, the Civil
Rights Division had initiated CRIPA actions regarding
approximately 400 facilities, resulting in approximately
120 consent decrees and settlements governing conditions
in about 240 facilities, since CRIPA was enacted in
1980. CRIPA enforcement has been a major priority of the
Division. Over the last six years, the Division has
opened 52 new investigations covering 66 facilities. The
Division has also entered into 39 settlement agreements
including seven consent decrees. There are currently 59
active investigations covering 69 facilities.
136. Prisoner Litigation. The Civil Rights
Division investigates conditions in state prisons and
local jail facilities pursuant to CRIPA, and
investigates conditions in state and local juvenile
detention facilities pursuant to either CRIPA or Section
14141, described above. These statutes allow suit for
declaratory or equitable relief for a pattern or
practice of unconstitutional conditions of confinement.
Over the last 6 years, the Civil Rights Division has
authorized 16 investigations concerning 17 adult
correctional facilities, and 16 investigations of 26
juvenile detention facilities. Since October of 1999,
the Civil Rights Division has entered 13 settlement
agreements concerning 26 adult correctional facilities
and 11 settlement agreements concerning 26 juvenile
detention facilities. Since October 1999, pursuant to
CRIPA, the Division has issued so-called findings
letters letters detailing patterns or practices of
civil rights violations and minimum remedial measures to
remedy the violations covering 13 adult correctional
facilities and 17 juvenile detention facilities. Some
examples of these investigations follow:
On 7 June, 2004, the Civil Rights Division filed a
lawsuit challenging the conditions of confinement at the
Terrell County Jail in Dawson, Georgia. The Divisions
complaint alleged that the jail routinely violated
federally protected rights, including failing to protect
inmate safety, and failing to provide required medical
and mental health care. For example, after jail
officials allegedly left one detainee with known mental
health problems unsupervised despite his being on
"suicide watch," he hanged himself.
On 16 July, 2004, the Division reached an
out-of-court agreement with the Wicomico County
Detention Center in Salisbury, Maryland regarding
systematic violations of prisoners federally protected
civil rights. The Divisions three-year investigation
revealed evidence that the Detention Center failed to
provide required medical and mental health care, failed
to provide adequate inmate safety, and failed to provide
sufficiently sanitary living conditions. Under the terms
of the agreement, the Detention Center will address and
correct the deficiencies identified by the Division.
The Division has also issued letters in 2004
reporting its findings regarding conditions at the
McPherson and Grimes Correctional Units in Newport,
Arkansas, the Garfield County Jail and County Work
Center in Enid, Oklahoma, the Patrick County Jail in
Virginia, and the Santa Fe Adult Detention Center in New
Mexico.
On 18 December, 2003, the Division filed suit to
remedy a pattern or practice of unconstitutional
conditions at the Oakley and Columbia Training Schools
juvenile justice facilities in Mississippi. The
Divisions investigation found evidence of numerous
abusive practices.
On 27 August, 2004, the Division reached an
out-of-court agreement with the state of Arkansas
regarding the McPherson and Grimes Correctional Units in
Newport, Arkansas. The agreement requires changes in
staffing and security, and medical and mental health
care for both male and female inmates.
Over the last six years, the Division entered into
agreements to remedy patterns or practices of
unconstitutional conditions of confinement at several
local jails or state prisons, including the Wyoming
State Prison; the Nassau County Correctional Center in
New York State; the Shelby County Jail in Tennessee; the
Maricopa County jails in Phoenix, Arizona; and the
McCracken County Jail in Kentucky.
137. Sexual abuse in prison. The Prison Rape
Elimination Act of 2003 (PREA) was enacted to address
the problem of sexual assault of persons in the custody
of U.S. correctional agencies. The Act, signed into law
on 4 September, 2003, applies to all public and private
institutions that house adult or juvenile offenders and
is also relevant to community-based agencies. The
purpose of the Act is to:
- Establish a zero-tolerance standard for the
incidence of rape in prisons in the United States;
- Make the prevention of rape a top priority in
each prison system;
- Develop and implement national standards for the
detection, prevention, reduction, and punishment of
prison rape;
- Increase the available data and information on
the incidence of prison rape, consequently improving
the management and administration of correctional
facilities;
- Standardize the definitions used for collecting
data on the incidence of prison rape;
- Increase the accountability of prison officials
who fail to detect, prevent, reduce, and punish
prison rape;
- Protect the Eighth Amendment rights of federal,
state, and local prisoners;
- Increase the efficiency and effectiveness of
federal expenditures through grant programs such as
those dealing with health care; mental health care;
disease prevention; crime prevention, investigation,
and prosecution; prison construction, maintenance,
and operation; race relations; poverty;
unemployment; and homelessness; and,
- Reduce the costs that prison rape imposes on
interstate commerce.
138. Illustrative of the problem of sexual abuse in correctional
facilities are United States v. Arizona and
United States v. Michigan, both cases filed under
CRIPA in 1997 and dismissed in 1999 and 2000
respectively; the Civil Rights Division sought to remedy
a pattern or practice of sexual misconduct against
female inmates by male staff, including sexual contact
and unconstitutional invasions of privacy. The cases
were dismissed after the state prisons agreed to make
significant changes in conditions of confinement for
female inmates.
139. Segregation of Prisoners. In Sandin v.
Conner, 515 U.S. 472 (1995), the Supreme Court
defined the due process requirements for prisoners
subjected to segregation for disciplinary reasons. The
Court held that a 30 day period of disciplinary
segregation from general population did not give rise to
a liberty interest that would require a full due process
hearing prior to the imposition of the punishment. The
Court did leave open the possibility that due process
protections would be implicated if the confinement was
"atypical and significant."
140. Psychiatric hospitals. As reported in
paragraphs 172 173 of the Initial Report, individuals
with mental illness may be admitted to psychiatric
hospitals either through involuntary or voluntary
commitment procedures for the purpose of receiving
mental health services. Institutionalized persons,
including mental patients, are entitled to adequate
food, clothing, shelter, medical care, reasonable
safety, and freedom from undue bodily restraint.
Complaints tend to focus on inadequate conditions of
confinement. Since enactment of the Civil Rights of
Institutionalized Persons Act, 42 U.S.C. §
1997, et seq, in 1980, some 400 facilities,
including psychiatric facilities, prisons, jails,
juvenile facilities, nursing homes, and facilities
housing persons with developmental disabilities have
been investigated by the U.S. Department of Justice and
relief sought, as appropriate. Also, the 1999 U.S.
Supreme Court decision in Olmstead v. L.C., 527
U.S. 581 (1999), held that unnecessary segregation of
people with disabilities in institutions may be a form
of discrimination that violates the 1990 Americans with
Disabilities Act, when considering all relevant factors
including the cost of a less restrictive environment. In
addition, the Protection and Advocacy for Individuals
with Mental Illness program, enacted in 1986, protects
and advocates for the rights of people with mental
illnesses and investigates reports of abuse and neglect
in facilities that care for or treat individuals with
mental illnesses. Patients are also afforded protections
under Medicare and Medicaid "Conditions of Participation
on Patients Rights" and the Childrens Health Act of
2001 related to use of seclusion and restraint.
141. Medical or scientific experimentation. The
United States Constitution protects individuals against
non-consensual experimentation. Specifically included
are the Fourth Amendment's proscription against
unreasonable searches and seizures (including seizing a
person's body), the Fifth Amendment's proscription
against depriving one of life, liberty or property
without due process, and the Eighth Amendment's
proscription against the infliction of cruel and unusual
punishment. In addition, legislation provides similar
guarantees (See 21 U.S.C. §§
355(i)(4) & 3360j(g)(3)(D)).
142. Comprehensive control of unapproved drugs is
vested by statute in the federal Food and Drug
Administration (FDA) within HHS. The general
commercialization of such drugs is prohibited, See
21 U.S.C. §
355(a), but HHS/FDA permits their use in experimental
research under certain conditions (21 U.S.C. §§
355(i), 357(d); 21 C.F.R. §§
50, 56, & 312). The involvement of human beings in such
research is prohibited unless the subject or the
subject's legally authorized representative has provided
informed consent, with the limited exceptions described
below. The HHS/FDA regulations state in detail the
elements of informed consent (21 C.F.R. §§
50. 20-50.27).
143. U.S. statute and HHS regulations make an
exception to requiring consent when the human subject is
confronted by a life-threatening situation that requires
use of the test article, legally effective consent
cannot be obtained from the subject, time precludes
consent from the subject's legal representative, and
there is no comparable alternative therapy available (21
C.F.R. 50.23(a)-(c)). HHS/FDA regulations also set forth
criteria for the President of the United States to apply
in making a decision to waive the prior informed-consent
requirement for the administration of an investigational
new drug to a member of the U.S. Armed Forces in
connection with the members participation in a
particular military operation (21 C.F.R. 50.23(d)). This
regulation implements, in part, 10 U.S.C.
§ 1107(f) which specifies that only the President
may waive informed consent in this connection, and that
the President may grant such a waiver only if the
President determines in writing that obtaining consent
is not feasible, is contrary to the best interests of
the military members, or is not in the interests of U.S.
national security. The statute further provides that in
making a determination to waive prior informed consent
on the ground that it is not feasible on the grounds
that it is contrary to the best interests of the
military members involved, the President shall apply the
standards and criteria that are set forth in these
regulations. Finally, HHS/FDA regulations provide an
exception to informed consent for emergency research (21
C.F.R. 50.24). This exception allows an Institutional
Review Board (IRB) to approve research if it finds that
the human subjects are in a life-threatening situation,
available treatments are unproven or unsatisfactory,
obtaining informed consent is not feasible,
participation in the research holds out the prospect of
direct benefit to the subjects, the research could not
practicably be carried out without the waiver, and other
protections are provided.
144. The Fourth, Fifth, and Eighth Amendments to the
United States Constitution, by statutes, and by agency
rules and regulations promulgated in response to such
provisions, prohibit experimentation on prisoners. As a
general matter, in the United States, "[e]very human
being of adult years or sound mind has a right to
determine what shall be done with his own body." See
Schloendorff v. Society of New York Hospitals,
105 N.E. 92, 93 (1914). Accordingly, prisoners are
almost always free to consent to any regular medical or
surgical procedure for treatment of their medical
conditions. Consent must be "informed": the inmate must
be informed of the risks of the treatment; must be made
aware of alternatives to the treatment; and must be
mentally competent to make the decision. Because of
possible "coercive factors, some blatant and some
subtle, in the prison milieu," (James J. Gobert and Neil
P. Cohen, Rights of Prisoners, New York: McGraw
Hill, Inc., 1981, pp. 350-51) prison regulations
generally do not permit inmates to participate in
medical and scientific research.
145. The U.S.
Federal Bureau of Prisons prohibits medical
experimentation or pharmaceutical testing of any
type on all inmates in the custody of the U.S. Attorney
General who are assigned to the Bureau of Prisons. 28
C.F.R. §
512.11(c).
146. Moreover, the federal government strictly
regulates itself when conducting, or funding research in
prison settings. HHS, which sponsors over 90 percent of
federally conducted or supported human research
promulgated in 1976 regulations (45 C.F.R. §
46 (c)) that protect the rights and welfare of prisoners
involved in research. An IRB, which approves and
oversees all research conducted or supported by HHS,
must have at least one prisoner or prisoner
representative if prisoners are to be used as subjects
in the study. Research involving prisoners must present
risks similar to risks accepted by non-prisoner
volunteers (See 45 C.F.R. §
46). Furthermore, the regulations established by HHS
require that the research proposed must fall into one of
four categories:
Study of the possible causes, effects, and
processes of incarceration, and of criminal behavior,
provided that the study presents no more than a minimal
risk and no more than inconvenience to the subject;
Study of prisons as institutional structures or of
prisoners as incarcerated persons, provided that the
study presents no more than minimal risk and no more
than inconvenience to the subject;
Research on conditions particularly affecting
prisoners as a class;
Research on practices, both innovative and
accepted, which have the intent and reasonable
probability of improving the health and well-being of
the subject. 45 C.F.R. §
46.306(a)(2).
147. Research conducted under categories 1 and 2 must
present "no more than minimal risk and no more than
inconvenience to the subjects." For research conducted
under category 3, or conducted under category 4 where
"studies require the assignment of prisoners in a manner
consistent with protocols approved by the IRB to control
groups which may not benefit from the research," "the
study may proceed only after the Secretary [of HHS] has
consulted with appropriate experts, including experts in
penology, medicine, and ethics, and published notice, in
the Federal Register, of the intent to approve such
research."
148. The Secretary of HHS, pursuant to 45 C.F.R.
46.101(i), has waived the applicability of certain
provisions of subpart C of 45 C.F.R. part 46 (Additional
HHS Protections Pertaining to Biomedical and Behavioral
Research Involving Prisoners as Subjects) to specific
types of epidemiological research involving prisoners as
subjects. This waiver, effective 20 June, 2003, allows
HHS to conduct or support certain important and
necessary epidemiological research that would not
otherwise be permitted under subpart C.
149. The Secretary of HHS has also waived the
applicability of 45 C.F.R. 46.305(a)(1) and 46.306(a)(2)
for certain epidemiologic research conducted or
supported by HHS in which the sole purposes are the
following:
to describe the prevalence or incidence of a
disease by identifying all cases; or
to study potential risk factor associations for a
disease; and
where the institution responsible for the conduct of
the research certifies to the HHS Office for Human
Research Protections, acting on behalf of the Secretary,
that the IRB approved the research and fulfilled its
duties under 45 C.F.R. 46.305(a)(2)-(7) and
determined and documented that the research presents no
more than minimal risk and no more than inconvenience to
the prisoner-subjects; and prisoners are not a
particular focus of the research.
Article 8 - Prohibition of slavery
150. Slavery and involuntary servitude.
Abolition of the institution of slavery in the United
States dates from the early 1800s, when the charter for
the Northwest Territories provided that neither slavery
(government-sanctioned ownership of a person) nor
involuntary servitude (the holding of a person through
compulsion for labor or services, without government
sanction) would exist in certain lands being brought
into the United States. Restrictions on the trafficking
of slaves were adopted throughout the early 1800s.
Slavery was abolished throughout the United States and
its Territories by the Thirteenth Amendment to the
United States Constitution, adopted in 1865.
151. Although slavery and involuntary servitude have
been outlawed throughout the United States since 1865,
tragically, modern analogs of that horrible practice
continue around the world. The United States estimates
that each year between 600,000 and 800,000 persons are
trafficked across international borders, including an
estimated 14,500 to 17,500 persons trafficked into the
United States.
152. Prior to 2000, the United States prosecuted
instances of slavery/human trafficking under statutes
designed to protect persons in the United States in the
free enjoyment of their constitutional rights, such as
18 U.S.C. 241, which criminalizes conspiracies to
interfere with the exercise of constitutional rights,
and statutes such as 18 U.S.C. 1584, which
criminalizes involuntary servitude. Under these
statutes, the Justice Department could prosecute only
cases in which involuntary servitude was brought about
through use or threatened use of physical or legal
coercion; it was not sufficient to show that labor was
forced through psychological coercion or other means.
United States v. Kozminski, 487 U.S. 931
(1988).
153. Recognizing the fact that human traffickers
often use various forms of non-physical and
psychological manipulation, including threats to victims
and their families, document confiscation, and other
forms of disorientation, Congress enacted the
Trafficking Victims Protection Act of 2000 (TVPA). The
TVPA enhanced the United States ability to prosecute
slaveholders and to assist victims of human trafficking.
154. The TVPA set forth a three-pronged strategy to
combat modern-day slavery: preventing human trafficking
by working with authorities in the victims home
countries, providing protection and assistance to
victims, and prosecuting offenders. The TVPA created
several new criminal offenses: (i) holding persons for
labor or services through a scheme or pattern of
coercion (section 1589); (ii) trafficking persons into a
condition of servitude or forced labor (section 1590);
(iii) trafficking persons for commercial sexual activity
through force fraud or coercion, or trafficking minors
for commercial sexual activity (section 1591), and (iv)
confiscation of identity documents in order to maintain
an condition of servitude (section 1592). The TVPA
raised the statutory maximum for servitude offenses to
twenty years imprisonment, and in cases involving
kidnapping, rape, or death of a victim, to life
imprisonment. The TVPA provided for victim assistance by
allowing trafficking victims to apply for federally
funded or federally administered health and welfare
benefits and by allowing qualified aliens to remain in
the United States. The
statute increased penalties for pre-existing crimes
including forced labor; trafficking with respect to
peonage, slavery, involuntary servitude, or forced
labor; sex trafficking of children or by force, fraud,
or coercion; and unlawful conduct with respect to
documents, criminalized attempts to engage in these acts
and provided for mandatory restitution and forfeiture.
155. In 2003, the United States renewed the TVPA and
added provisions for information campaigns to combat sex
tourism, added refinements to the federal criminal law,
and created a new civil action provision that allows
trafficking victims to sue their traffickers in federal
district court.
156. Trafficking cases involve coercion, sometimes
following an initial recruitment through false promises,
in order to obtain or maintain the victims labor or
services. Many of the defendants in these cases prey on
the vulnerabilities of children or immigrant
populations. While the means of isolation and coercion
are often similar, victims are placed into various
exploitative situations in a number of different
industries. Sometimes, the underlying labor is
legitimate, such as agricultural labor or domestic
service. Other times, the victims are forced into
illegal activities, such as prostitution or other
commercial sexual activity. All of the victims of these
severe forms of trafficking are held through coercive
forces that deny them their essential freedom.
157. Since 1992, the Department of Justice has
prosecuted 98 involuntary servitude cases involving 284
defendants, with three-fourths of the cases brought in
the past five years. The cases have resulted in 194
convictions and guilty pleas and five acquittals. Since
the TVPA's enactment in October 2000 through June 2005,
the United States initiated prosecutions of 215 human
traffickers, a three-fold increase over the prior four
years. During that same period, the United States
offered 752 adult and children victims of trafficking
health and welfare benefits, including assistance with
food, housing, transportation, medical services, and
social adjustment services; English language training;
job counseling and placement; and legal services. For
those victims who wished to be reunited with their
families abroad, the United States has assisted in
achieving a safe reunion. For those victims who wish to
remain in the United States, the United States allows
victims to extend their stay in the United States or to
apply for a special visa that carries the privilege of
applying for permanent residency after three years. The
United States is currently one of the few countries that
grant the possibility of permanent residency to victims
of trafficking. From October 2000 through June 2005, the
United States granted immigration benefits to 450
trafficking victims. Additionally, in order to stop
trafficking at its source, from October 2001 through
June 2005, the United States invested over $295 million
on international anti-trafficking efforts.
158. The Department of Justice's enforcement efforts
in recent years have uncovered trafficking cases
involving persons whose labor or services were forcibly
obtained or maintained for, among other things:
prostitution, nude dancing, domestic service, migrant
agricultural labor, "sweatshop" garment factories, and
street peddling/begging. The following examples are
illustrative of some of the cases brought by the
Department of Justice since the passage of the TVPA in
October 2000:
- The owner of a sweatshop in the Territory of
American Samoa was sentenced to 40 years in prison
after being convicted of conspiring to enslave
workers, involuntary servitude, and forced labor for
holding Vietnamese factory workers to work as sewing
machine operators in the Daewoosa Samoa garment
factory. The workers were deprived of food, beaten,
and physically restrained in order to force them to
work. The lead defendant, Kil Soo Lee, was sentenced
to 40 years in prison in June 2005; two other
defendants entered guilty pleas to conspiracy for
their involvement in the scheme and were sentenced
to 70 and 51 months incarceration. United States
v. Kil Soo Lee, 159 F. Supp. 2d 1241 (D. Haw.
2001).
- A defendant was convicted of forcing a young
Cameroonian girl to work as a domestic servant after
being brought into the United States illegally. The
eleven-year old girl was forced to care for the
defendant's two children and performed all the
household chores without pay. The defendant beat
her, forbade her from speaking of the conditions to
anyone, forbade her from leaving the house or
opening the door to anyone, and interfered with her
mail. The defendant, who fled to Cameroon after
being convicted, was sentenced to 210 months in
prison and has since been returned to the United
States to serve her sentence. United States v.
Mubang.
- Six defendants pleaded guilty to trafficking
Mexican women into the United States illegally and
forced them into prostitution in Queens and
Brooklyn. The male defendants lured the women into
the United States and prostitution through personal
relationships or marriage. The traffickers
controlled their victims in part by holding the
victims children in Mexico. United States v.
Carreto, et al.
- Eight defendants were charged with maintaining
trailers along the Texas border as safe houses for
illegal aliens newly arrived from the US/Mexico
border. Women aliens were kept at the trailers where
they were forced to cook and clean and were raped by
the defendants. Seven of the eight defendants
entered guilty pleas for their involvement in the
scheme and were sentenced to terms of incarceration
ranging from 4 months to 23 years in prison. Three
of the seven defendants were ordered to pay $11,532
in restitution. The final defendant is a fugitive.
United States v. Soto-Huarto, et al.
- Two defendants, who operated a tree cutting
business, were convicted for holding two Jamaican
immigrants in conditions of forced labor and
document servitude in New Hampshire. The defendants
obtained workers from Jamaica by means of false
promises of good work and pay. Once the workers
arrived in New Hampshire, their visas and others
documents were confiscated and the workers were paid
substantially less than promised, were housed in
deplorable conditions, were denied medical
treatment, and were routinely threatened. The
defendants were sentenced to 70 months in prison,
three years supervised release and ordered to pay a
$12,500 fine and $13,052 restitution. United
States v. Bradley, 390 F.3d 145 (1st Cir. 2004).
- Two Russian nationals were convicted at trial of
recruiting women from Uzbekistan into the United
States under false pretenses, then forcing them to
work in strip clubs and bars in order to pay back an
alleged $300,000 smuggling fee. The victims
passports were taken away, they were required to
work seven days a week, and they were told that
their families in Uzbekistan would be harmed if they
did not comply with the defendants demands. The
defendants were sentenced to 60 months incarceration
and ordered to pay almost $1,000,000 in restitution.
United States v. Gasanova, 332 F.3d 297 (5th
Cir 2003).
159. Since 1992, the Department of Justice has
prosecuted 78 involuntary servitude cases involving 245
defendants, with three-fourths of the cases brought in
the past five years. The cases have resulted in 187
convictions and guilty pleas and four acquittals.
160. Forced Labor. As reported in paragraph
202 of the Initial Report, the United States does not
engage in practices of forced labor. In addition, the
newly enacted criminal statute, 18 U.S.C. 1589,
prohibits forced labor by private parties who obtain or
maintain labor or services through coercion that does
not rise to the level mandated for other offenses by the
U.S. Supreme Court in United States v. Kozminski,
487 U.S. 931 (1998).
161. Worst Forms of Child Labor. On 2
December, 1999, the United States ratified ILO
Convention 182 on The Worst Forms of Child Labor. The
treaty came into force for the United States on 2
December, 2000. By ratifying the convention, the United
States committed itself to take immediate action to
prohibit and eliminate the worst forms of child labor.
Article 9 - Liberty and security of person
162. The Supreme Court has used the vagueness doctrine
to limit statutory authorizations for arrest of
suspected gang members. In City of Chicago v. Morales,
527 U.S. 41 (1999), the Court struck down a city
ordinance that permitted arrest if a police officer
observed those he reasonably believed to be street gang
members loitering, ordered the persons to disperse, and
the persons disobeyed that order. In Atwater v. City
of Lago Vista, 532 U.S. 318 (2001), however, the
Court held that the Fourth Amendment does not forbid a
warrantless arrest for a minor criminal offense, even
one punishable only by a fine.
163. In Dickerson v. United States, 530 U.S. 428
(2000), the Supreme Court held that Miranda requirements
regarding the admissibility of statements during
custodial interrogations were constitutionally based and
could not be overruled by legislation. The Court
subsequently divided over related questions. In
United States v. Patane, 542 U.S. 630 (2004), a
plurality concluded that the Constitution does not
generally require suppression of the physical fruits of
voluntary statements that were not preceded by Miranda
warnings. On the other hand, in Missouri v. Seibert,
542 U.S. 600 (2004), a plurality refused to allow
deliberate evasions of Miranda, requiring suppression of
statements that were made after Miranda warnings had
been given but had first been obtained without giving
the suspect Miranda warnings.
164. Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004),
involved the case of a U.S. citizen, Yaser Esam Hamdi,
who was captured by the U.S. military during military
operations against al Qaeda and the Taliban in
Afghanistan and eventually detained within the United
States at a naval brig in South Carolina. Hamdi was a
U.S. citizen by birth but had lived with his family in
Saudi Arabia for virtually his entire life. The Supreme
Court stated that the Authorization for Use of Military
Force ("AUMF"), passed by Congress in the wake of the 11
September, 2001 terrorist attacks, authorized the
President to detain individuals, including U.S.
citizens, determined to be enemy combatants for the
duration of armed hostilities. A plurality of the Court
further stated that the Constitution requires that U.S.
citizens so detained receive notice of the factual basis
for their classification as enemy combatants, as well as
a fair opportunity to rebut the government's factual
assertions before a neutral decision-maker. Subsequent
to the Supreme Court's decision, the United States
released Hamdi and repatriated him to Saudi Arabia
pursuant to a settlement agreement under which he
renounced U.S. citizenship and agreed to various
restrictions to ensure he would not pose a future threat
to the United States.
165. Rumsfeld v. Padilla, 124 S. Ct. 2711 (2004), involved the
case of a U.S. citizen, Jose Padilla, who associated
with forces hostile to the United States in Afghanistan
and took up arms against United States forces in their
conflict with al Qaeda. He then escaped to Pakistan,
where he was recruited, trained, funded, and equipped by
al Qaeda leaders to engage in hostile acts within the
United States. However, upon traveling to the United
States, Padilla was apprehended by the United States at
Chicago's O'Hare International Airport. Padilla was
determined to be an enemy combatant and transferred to
the custody of the Department of Defense based on
Presidential findings that he was associated with al
Qaeda and had engaged in hostile and war-like acts
including preparation for acts of international
terrorism, and was detained at a naval brig in South
Carolina, after which a petition for a writ of habeas
corpus was filed on his behalf. The Supreme Court held
that it was incorrect for that petition to have named
the Secretary of Defense as respondent, because the
Secretary of Defense was not Padilla's immediate
custodian. The Supreme Court also held that the petition
should have been filed in the district where Padilla was
being confined, South Carolina, rather than New York,
where it was actually filed. Subsequent to the Supreme
Court decision, Padilla refiled the habeas case in the
appropriate district court and against the appropriate
respondent. On 9 September, 2005, the U.S. Court of
Appeals for the Fourth Circuit held that Padilla's
detention was authorized by the AUMF. Padilla v.
Hanft, 2005 U.S. App. LEXIS 19465 (4th Cir. 2005).
In so holding, the Fourth Circuit reversed the decision
of a lower court that had found Padilla's detention
unlawful and had ordered the government to release him
unless it elected to bring criminal charges against him
or hold him as a material witness. Rejecting the lower
court's analysis, the Fourth Circuit stated that
Padilla's "military detention as an enemy combatant by
the President is unquestionably authorized by the AUMF
as a fundamental incident to the President's prosecution
of the war against al Qaeda in Afghanistan."
166. In 1996, thirty-four percent of the 56,982
defendants charged with a federal offense were ordered
detained by the court pending adjudication of the
charges. Defendants charged with violent (49.7%),
immigration (47.9%), or drug trafficking (45.7%)
offenses were detained by the court for the entire
pretrial period at a greater rate than other offenders.
Of the 19,254 defendants for who detention was ordered,
42.3 percent were detained because they were considered
a flight risk, 10.6 percent because they were considered
a danger either to the community or prospective
witnesses or jurors, and 47 percent for both reasons.
167. In 2000, an estimated 62 percent of defendants
facing felony charges in the nations 75 most populous
counties were released prior to the disposition of their
cases. Murder defendants (13%) were the least likely to
be released prior to case disposition, followed by
defendants whose most serious arrest charge was robbery
(44%), motor vehicle theft (46%), burglary (49%), or
rape (56%). Less than half of defendants with an active
criminal justice status, such as parole (23%) or
probation (41%), at the time of arrest were released,
compared to 70 percent of these with no active status.
168. Detention to secure the presence of a witness.
A person may also be held in custody to secure his
presence as a material witness at an upcoming trial. The
Supreme Court has stated that the "duty to disclose
knowledge of crime ... is so vital that one known to be
innocent may be detained in the absence of bail, as a
material witness." See Stein v. New York,
346 U.S. 156, 184 (1953). Federal law accordingly has a
material witness statute, 18 U.S.C. section 3144,
that provides:
If it appears from an affidavit filed by a party that
the testimony of a person is material in a criminal
proceeding, and if it is shown that it may become
impracticable to secure the presence of the person by
subpoena, a judicial officer may order the arrest of the
person and treat the person in accordance with the
provisions of [the Bail Reform Act]. No material witness
may be detained because of inability to comply with any
condition of release if the testimony of such witness
can adequately be secured by deposition, and if further
detention is not necessary to prevent a failure of
justice. Release of a material witness may be delayed
for a reasonable period of time until the deposition of
the witness can be taken pursuant to the Federal Rules
of Criminal Procedure.
169. The government has relied on this statute as
authority to detain not only trial witnesses, but grand
jury witnesses as well. One federal district court held
that 3144 does not apply to grand jury witnesses.
See United States v. Awadallah, 202 F. Supp.
55, 61-79 (S.D.N.Y. 2002). Another federal court within
the same district rejected Awadallah, holding
that §
3144 provides clear authority to detain individuals to
testify before the grand jury. In re Application of
the United States for a Material Witness Warrant,
213 F.Supp.2d 287, 288-300 (S.D.N.Y. 2002). The issue
went to the Court of Appeals for the Second Circuit
which held in 2003 that a grand jury proceeding is a
"criminal proceeding" for purposes of 3244, meaning
that material witnesses may be detained under §
3244 for the grand jury process. See United
States v. Awadallah, 349 F.3d 42, 55 (2d Cir. 2003).
A detained witness in a grand jury investigation may
have a hearing on the propriety of the detention and is
entitled to the protections of §3142
"insofar as they are applicable in the grand jury
setting." Id. at 61. A court may order that a
deposition be taken to release a detained witness
earlier than would be possible by requiring the witness
to testify before the grand jury. Id. at 60. The
decision of the Second Circuit was not appealed.
170. Detention of aliens. The Immigration and
Nationality Act ("INA") provides for mandatory detention
of certain categories of aliens during immigration
proceedings, including certain criminal aliens, and
certain aliens who pose a threat to national security.
See 8 U.S.C. §§1226(c),
1226(a), and 1225(b). Aliens that do not fall under the
mandatory detention requirements may be released by the
Secretary of Homeland Security on conditions, including
bond, if they do not pose a flight risk or danger to the
public. In general, aliens who have made an entry into
the United States may challenge the Secretarys custody
determination in a hearing before an immigration judge.
See 8 U.S.C. 1226(a).
171. Once an alien has been ordered removed from the
United States, detention is mandatory during removal
efforts for the next 90 days for most criminal aliens
and those who pose a national security risk. If the
alien has not been removed at the end of this 90-day
period, the alien may be detained for another 90-day
period pending removal or may be released on conditions
if the alien does not pose a flight risk or danger to
the public. If, after 180 days post-order detention, an
aliens removal is not significantly likely in the
reasonably foreseeable future, the alien must be
released, with certain limited exceptions. See
Zadvydas v. Davis, 533 U.S. 678 (2001); Clark v.
Martinez, 125 S. Ct. 716 (2005).
172. Habeas corpus. The writ of habeas corpus can
be used to review a final conviction - in addition to
the statutory right to appeal one's conviction - as well
as to challenge execution of a sentence or to challenge
confinement that does not result from a criminal
conviction, such as the commitment into custody for
mental incompetency or detention for immigration
reasons. INS v. St. Cyr, 533 U.S. 289 (2001).
Also, the Supreme Court has held that some individuals
detained in connection with hostilities or as enemy
combatants are entitled to habeas corpus review.
173. In 2003, petitions for writ of habeas corpus were
filed in U.S. courts on behalf of some of the detainees
at Guantanamo seeking review of their detention. On 28
June, 2004, the United States Supreme Court, the highest
judicial body in the United States, issued two decisions
pertinent to many enemy combatants. One of the decisions
directly pertained to enemy combatants detained at
Guantanamo Bay, and the other pertained to a citizen
enemy combatant held in the United States. See
Rasul v. Bush, 124 S.Ct. 2686 (2004);
Hamdi v. Rumsfeld, 124 S.Ct. 2633 (2004); see
also Rumsfeld v. Padilla, 124 S.Ct. 2711
(2004) (involving a decision on which U.S. federal court
has jurisdiction over habeas action). In Rasul v.
Bush, the Supreme Court decided only the
question of jurisdiction. The Court ruled that the U.S.
District Court for the District of Columbia had
jurisdiction to consider habeas challenges to the
legality of the detention of foreign nationals at
Guantanamo. 124 S.Ct. at 2698. The Court held that
aliens apprehended abroad and detained at Guantanamo
Bay, Cuba, as enemy combatants, "no less than citizens,"
could invoke the habeas jurisdiction of a district
court. Id. at 2696. The Supreme Court left
it to the lower courts to decide "[w]hether and what
further proceedings may become necessary after [the
United States government parties] make their response to
the merits of petitioners claims." Id. at
2699. In Hamdi v. Rumsfeld, a plurality of
the Court addressed the entitlements of a U.S. citizen
designated as an enemy combatant and held that the Due
Process Clause of the United States Constitution
requires "notice of the factual basis for [the
citizen-detainees] classification, and a fair
opportunity to rebut the governments factual assertions
before a neutral decisionmaker." 124 S.Ct. at 2648. A
plurality of the Court observed: "There remains the
possibility that the [due process] standards we have
articulated could be met by an appropriately authorized
and properly constituted military tribunal," and
proffered as a benchmark for comparison the regulations
titled, Enemy Prisoners of War, Retained Personnel,
Civilian Internees and Other Detainees, Army Regulation
190-8, 1-6 (1997). Id. at 2651.
Article 10 - Treatment of persons deprived of
their liberty
174. Humane treatment and respect. As
discussed in paragraphs 259 299 of the Initial Report,
the Fifth, Eighth and Fourteenth Amendments to the
United States Constitution, as well as federal and state
statutes, regulate the treatment and conditions of
detention of persons deprived of their liberty by state
action. When the actual practice of detention in the
United States does not meet constitutional standards,
individuals are held accountable.
175. The Civil Rights of Institutionalized Persons
Act, 42 U.S.C. 1997(a), authorizes the Attorney
General of the United States to sue for equitable relief
when there is reasonable cause to believe that a state
or locality is subjecting institutionalized persons to
conditions that deprive them of their rights under the
United States Constitution or federal laws.
176. Correctional systems: federal government.
Individuals convicted of federal crimes are sentenced by
U.S. District Courts to the custody of the United States
Attorney General. The Attorney General is appointed by
the President and confirmed by the U.S. Senate, and
manages the U.S. Department of Justice (DOJ). The
Attorney General delegates custody responsibilities to
the Federal Bureau of Prisons (BOP). The Director of the
Bureau of Prisons retains full administrative
responsibility for offenders designated to the Attorney
General's custody.
177. The BOP operates 106 correctional facilities
throughout the nation, including 17 penitentiaries, 60
correctional institutions, 10 independent prison camps,
12 detention centers, and 7 medical referral centers.
The Bureau is responsible for the incarceration of
inmates who have been sentenced to imprisonment for
federal crimes, the detention of some individuals
awaiting trial or sentencing in federal court, and the
confinement of the District of Columbias (D.C.)
sentenced felon inmate population. The BOP places
sentenced inmates in facilities commensurate with their
security and program needs through a system of
classification which allows the use of professional
judgment within specific guidelines. Persons being
detained prior to their trial, or while waiting for
their immigration hearings, are normally designated to
special "detention" facilities or housing units within
correctional institutions. These inmates are, to the
extent practicable, managed separately from convicted
offenders. See 18 U.S.C. 3142(i)(2).
178. The Bureau of Prisons contracts with
privately-operated prisons and community corrections
centers (CCCs or halfway houses), with local jails for
short-term confinement, and with privately-operated
juvenile facilities. The BOP uses contracting to help
manage the federal inmate population when the
contracting arrangement is cost-effective and
complements the agencys operations and programs.
Offenders in pre-release CCC are still under the custody
of the Attorney General and the BOP, although the daily
management of these inmates is administered by the staff
of the halfway house. Private halfway houses are
monitored regularly by BOP staff who provide training to
CCC staff and who inspect the facilities to ensure that
the CCC is in compliance with federal regulations
regarding offender program needs and facility safety
requirements.
179. The operation of federal correctional
institutions is directly supervised by the Director of
the Bureau of Prisons, who reports to the Attorney
General. When problems arise or allegations are raised
regarding misconduct, the Attorney General may initiate
an investigation. The Office of Inspector General within
the Department of Justice conducts such investigations
at the Attorney General's request. In addition, the BOP
investigates allegations of staff misconduct internally
through its Office of Internal Affairs. A separate
branch of the Department of Justice may become involved
if there is reason to believe the prisoners' rights are
being violated. The legislative branch, the U.S.
Congress, may initiate an investigation of the BOP's
operations where problems are brought to their
attention. Finally, federal courts may be called upon to
resolve problems.
180. In December 2003, the Office of the Inspector
General (OIG) of the Department of Justice issued a
report examining allegations that some correctional
officers at the Federal Bureau of Prisons' (BOP)
Metropolitan Detention Center (MDC) in Brooklyn, New
York, physically and verbally abused individuals
detained after the 11 September, 2001, attacks on the
United States. This report was issued as a supplemental
report to the OIG's June 2003 report that examined the
treatment of 762 detainees held on immigration charges
in connection with the federal government's
investigation of the 11 September, 2001 attacks.
181. The OIG's December 2003 report concluded that
the evidence substantiated allegations of abuse by some
MDC correctional officers of some detainees, and the OIG
recommended that the BOP discipline certain MDC
employees. After reviewing the matter, the Department of
Justice's Civil Rights Division declined criminal
prosecution of the correctional officers.
182. While the OIG report did not find evidence that
the detainees were brutally beaten, the OIG concluded
that the evidence showed that some officers slammed
detainees against the wall, twisted their arms and hands
in painful ways, stepped on their leg restraint chains,
and punished them by keeping them restrained for long
periods. In addition, the OIG found that some MDC staff
verbally abused some detainees. The OIG determined that
the way these
MDC officers handled some detainees was in many respects
unprofessional, inappropriate, and in violation of BOP
policy.
183. The OIG's report also discussed other findings
concerning the treatment of detainees at the MDC. For
example, the OIG found that the MDC videotaped
detainees' meetings with their attorneys. On many
videotapes, portions of detainees' conversations with
their attorneys were audible. This violated a federal
regulation (28 C.F.R. 543.13(e)) and BOP policy.
184. In an appendix to the OIG's December 2003
report, the OIG provided the BOP with recommendations
regarding discipline for specific MDC employees. That
section of the report was not released publicly because
of the potential of disciplinary proceedings against the
correctional officers.
185. The BOP initiated an investigation based on the
OIG's findings to determine whether discipline was
warranted. The BOP completed its review in July 2005. It
sustained many of the OIG's findings and has initiated
the disciplinary process.
186. Complaints. As reported in paragraphs 276
280 of the Initial Report, the Department of Justice
receives and acts on complaints sent directly from both
federal and state prisoners. Since the passage of the
statute in 1980, some 400 institutions have been
investigated.
187. Prosecutions. Abuses do occur in jails and
prisons in the United States. The Department of Justice
has prosecuted a variety of cases involving federal and
state prison officials, including the following
examples:
Six correctional officers at the Cummins Unit of
the Arkansas Department of Corrections beat and shocked
two naked and handcuffed victims with a hand-held stun
gun and cattle prod on the buttocks and testicles in
retaliation for them throwing urine and water on a
female officer. During a separate incident, three of the
six defendants shocked and beat another handcuffed
inmate as punishment for his earlier refusal to submit
to handcuffing. Five defendants entered guilty pleas
while the sixth defendant was convicted at trial. The
defendants were sentenced to terms of incarceration
ranging from 12 to 108 months. United States v. Bell.
Four officers at the Lea County Correctional
Facility in Hobbs, New Mexico were charged with kicking
an inmate multiple times in the head while he was lying
on the floor and while one of the four defendants, a
lieutenant, failed to prevent the assault. The
defendants subsequently prepared and submitted false
statements to investigators in order to hide the truth
about the assault. Three of the defendants were
convicted at trial while the fourth defendant entered a
guilty plea pre-trial. The defendants were sentenced to
terms of incarceration ranging from 24 to 78 months.
U.S. v. Fuller, et al.
A correctional officer at the Federal Correctional
Institute in Danbury, Connecticut, pled guilty to
engaging in sexual acts with five female inmates. The
defendant was sentenced to 20 months in prison. U.S.
v. Tortorella.
Seven correctional officers at the United States
Penitentiary in Florence, Colorado, participated in
frequent, unlawful assaults of inmates in retaliation
for inmate misconduct. Three of the seven were convicted
at trial and sentenced to terms of incarceration ranging
from 30 to 41 months while four officers were acquitted.
Three additional defendants pled guilty to civil rights
violations prior to trial. See, U.S. v.
LaVallee, et al., 269 F.Supp.2d 1297 (D. Colo.
2003).
188. Since October 1997, the Department of Justice
has filed charges in 270 cases of official misconduct
against more than 470 law enforcement officers.
Approximately one third of those cases filed involved
violations of a prisoner or person in jail.
189. Adult aliens in immigration custody. The
Department of Homeland Security continues to address
allegations that arise about the treatment of aliens
held in immigration detention. Within the Department of
Homeland Security, the Bureau of Immigration and Customs
Enforcement (ICE), Office of Detention and Removal
Operations (DRO) detains approximately 19,000 aliens in
Service Processing Centers, Contract Detention
Facilities and local facilities through
Inter-governmental Service Agreements (IGSA). ICE
regularly meets at both the national and local levels
with various non-governmental organizations (NGOs) (such
as the American Immigration Lawyers Association, the
American Bar Association, Catholic Legal Immigration
Network) to address such allegations. A national NGO
working group meets in Washington, D.C. at ICE
Headquarters. ICE also regularly meets with consular
officials to address allegations of mistreatment.
190. Since the Initial U.S. Report, in November 2000,
the former Immigration and Naturalization Service (INS)
promulgated the National Detention Standards (NDS).
These 36 standards were the result of negotiations
between the American Bar Association, the Department of
Justice, the INS and other organizations involved in pro
bono representation and advocacy for immigration
detainees. The NDS provides policy and procedures for
detention operations. Previously, policies governing
detention operations were not consolidated in one
location, but were instead sent to field officers via
periodic memoranda containing guidance and policy
statements. As a result, local differences among INS
detention offices were possible.
191. The NDS are comprehensive, encompassing areas
from legal access to religious and medical services,
marriage requests to recreation. The four legal access
standards concern visitation, access to legal materials,
telephone access, and group presentations on legal
rights. In July 2003, the 37th standard was introduced
for Staff-Detainee Communication. Effective March 2003,
the Office of Detention and Removal Operations became a
division of ICE within the Department of Homeland
Security. Effective September 2004, the Detainee
Transfer standard was added. The 38 NDS can be accessed
via the Internet at
http://www.ice.gov/graphics/dro/opsmanual/index.htm.
192. ICE is committed to ensuring that the conditions
of confinement for aliens detained pursuant to ICE
authority meet or exceed the National Detention
Standards. These standards are based on current ICE
detention policies, Bureau of Prisons Program
Statements and the widely accepted American Correctional
Association Standards for Adult Local Detention
Facilities, but are tailored to serve the unique needs
of ICE detainees. All ICE facilities are required to
comply with such standards. Additionally, wherever
possible, ICE works with private contract facilities and
state, local and federal government agencies which are
holding aliens under Intergovernmental Service
Agreements to ensure that non-ICE facilities comply with
ICEs detention standards.
193. On 24 January, 2002, DRO completed and
implemented the Detention Management Control Program
(DMCP) to operational components at all levels. The DMCP
replaced the outdated INS Jail Inspection Program. The
purpose of the DMCP is to prescribe policies, standards,
and procedures for ICE detention operations and to
ensure detention facilities are operated in a safe,
secure and humane condition for both detainees and
staff. The DMCP consists of a series of events designed
to ensure that reviews/inspections of detention
facilities are conducted in a uniform manner.
194. All Service Processing Centers, Contract
Detention Facilities, and Intergovernmental Service
Agreements are reviewed annually using procedures and
guidance as outlined in DMCP. During FY 2003, a
cumulative total of 8 Special Assessments were conducted
as a result of reported significant incidents, reported
deficiencies, at-risk detention reviews or significant
media event. Some examples follow:
A special assessment was prompted at a facility in
Oklahoma following an escape. Health, welfare and safety
issues were identified during the assessment. Corrective
actions taken by ICE included the removal of all ICE
detainees from the facility and the termination of the
agreement.
Following an escape of a detainee, a special
assessment was conducted at a facility used in
Washington. The population was ordered reduced due to
health, welfare and safety issues. Monthly site visits
were instituted until the facility became compliant with
the contract and applicable standards. The contractor
removed the Warden and Assistant Warden.
After allegations of assault on a detainee by
staff at a parish jail in Louisiana, a special
assessment was conducted. The officer was arrested and
prosecuted by the Parish District Attorney, other staff
were terminated, and disciplinary action initiated. No
further action by ICE was required.
195. ICE concluded capacity studies for its Service
Processing Centers (SPCs) in 2003. These studies were
conducted by an independent agency. They determined the
proper population levels at each facility based on
operational, design, and emergency capacity parameters.
Pursuant to completion of these studies, ICE issued
policy directives mandating facility compliance with
assessed appropriate population levels. In addition, the
DHS Office for Civil Rights and Civil Liberties reviews
certain specific allegations of mistreatment or abuse at
immigration detention facilities and makes
recommendations to ICE to assist in the implementation
of the National Detention Standards.
196. Care and Placement of Unaccompanied Alien
Children. Effective March 2003, functions under U.S.
immigration laws regarding the care and placement of
unaccompanied alien children (UACs) were transferred
from the Commissioner of the former Immigration and
Naturalization Service to the Office of Refugee
Resettlement (ORR) within the Administration for
Children and Families (ACF) at the Department of Health
and Human Services (HHS). See section 462 of the
Homeland Security Act of 2002. DHS and HHS ORR also have
joint obligations under the settlement agreement that
followed the Supreme Courts decision in Reno v.
Flores, 507 U.S. 292 (1993). The Flores
agreement directs that when a child is in the custody of
the federal government the child will be treated with
dignity, respect and special concern for the particular
vulnerabilities of children. The agreement favors
release to custodians where consistent with public
safety, the safety of the juvenile, and the need for the
juvenile to appear for immigration proceedings.
Juveniles are only released to a responsible adult.
197. Responsibilities of ORR under the law include:
making and implementing placement determinations and
policies, identifying sufficient qualified placements to
house UACs, ensuring that the interests of the child are
considered in decisions related to the care and custody
of UACs, reuniting UAC with guardians or sponsors,
overseeing the infrastructure and personnel of UAC
facilities, conducting investigations and inspections of
facilities housing UACs, collecting and comparing
statistical information on UACs, and compiling lists of
qualified entities to provide legal representation for
UACs.
198. The UAC Program has accomplished a great deal
since its inception within ORR. The program has made
great strides in improving overall services within
facilities, including enhanced clinical and mental
health services. The program has also been faced with a
dramatic increase in the number of apprehended juveniles
due to increased Department of Homeland Security border
initiatives. As a result, the program has added over 300
shelter or foster care beds to accommodate the influx,
marking a significant achievement for this program. This
was accomplished without reliance on secure detention
facilities. In fact, since March 2003 the program has
dramatically reduced its reliance on secure detention by
ensuring that only those with a severe criminal
background are placed in a secure juvenile facility.
Children are never mixed with an adult population, since
the current facilities under contract are licensed to
serve only juvenile populations. Currently, less than 2
percent of the total UAC population is in a secure
environment. Finally, all facilities are required to
ensure an appropriate level of care in terms of
education, counseling, recreation and mental health
services.
199. Reform and rehabilitation. While there is
no right under the United States Constitution to
rehabilitation, Coakley v. Murphy, 884 F.2d 1218
(9th Cir. 1989), all prison systems have as one of their
goals the improvement of prisoners to facilitate their
successful reintegration into society. The mission of
the Federal Bureau of Prisons is to protect society by
confining offenders in the controlled environments of
prisons and community-based facilities that are safe,
humane, cost-efficient, and appropriately secure, and
that provide work and other self-improvement
opportunities to assist offenders in becoming
law-abiding citizens. Moreover, the Bureau of Prisons
has a responsibility to provide inmates with
opportunities to participate in programs that can
provide them with the skills they need to lead
crime-free lives after release. The BOP provides many
self-improvement programs, including work in prison
industries and other institution jobs, vocational
training, education, substance abuse treatment,
religious observance, counseling, and other programs
that teach essential life skills. 28 C.F.R. parts 544,
545, 548, and 550.
200. Some minimum-security inmates from federal
prison camps perform labor-intensive work off
institutional grounds for other federal entities such as
the National Park Service, the U.S. Forest Service, and
the U.S. armed services. These inmates work at their job
site during the day and return to the institution at
night.
201. Federal prisoners are also provided the
opportunity to participate in self-improvement programs
that can provide them with the skills they need to lead
crime-free lives after release. These programs include
vocational training, substance abuse treatment,
religious observance, parenting, anger management,
counseling, and other programs that teach essential life
skills. In the Bureau of Prisons, currently 34 percent
of the inmates have a substance abuse disorder. The
Bureau of Prisons also provides other structured
activities designed to teach inmates productive ways to
use their time.
Article 11 - Freedom from imprisonment for breach
of contractual obligation
202. As reported in the Initial Report, in the United
States, imprisonment is never a sanction for the
inability to fulfill a private contractual obligation.
Article 12 - Freedom of movement
203. As reported in the Initial Report, in the United
States, the right to travel - both domestically and
internationally - is constitutionally protected. The
U.S. Supreme Court has held that it is "a part of the
'liberty' of which a citizen cannot be deprived without
due process of law under the Fifth Amendment". See
Zemel v. Rusk, 381 U.S. 1 (1965). As a
consequence, governmental actions affecting travel are
subject to the mechanisms for judicial review of
constitutional questions described elsewhere in this
report. Moreover, the United States Supreme Court has
emphasized that it "will construe narrowly all delegated
powers that curtail or dilute citizens' ability to
travel". See Kent v. Dulles, 357 U.S. 116,
129 (1958).
204. Alien travel outside the United States.
Non-citizen residents are generally free to travel
outside the United States, but may need special
permission to return in some circumstances. For example,
lawful permanent residents need permits to re-enter the
United States for travel abroad of one year or more.
These documents should be applied for before leaving the
United States, see 8 U.S.C. 1203, INA 223;
8 C.F.R. 223.2(b), but departure before a decision is
made on the application does not effect the application.
Aliens with pending applications for lawful status who
travel abroad must apply for advance permission to
return to the United States if they wish to re-enter the
country. A departure before a decision is made on such
an application is deemed an abandonment of the
application, with limited exceptions. A refugee travel
document allows people who are refugees or asylees to
return to the United States after travel abroad.
Although it should be applied for before travel, it may
be issued even where the applicant is outside the United
States. 8 C.F.R. 223.2(b)(2)(ii). In addition, the
INA vests in the President broad authority to regulate
departure of citizens and aliens from the United States.
See INA 215, 8 U.S.C. 1185.
205. Alien travel within the United States.
Travel within the United States may be restricted for
illegal aliens who are charged as removable and placed
in immigration proceedings. As a condition of release
from detention, restrictions may be placed on travel
outside certain geographical areas to limit risk of
flight.
Article 13 - Expulsion of aliens
206. On 1 March, 2003, the US Immigration and Naturalization Service
("INS") ceased to exist as an independent agency within
the Department of Justice, and its functions were
transferred to the newly formed Department of Homeland
Security, along with more than 20 other agencies. See
Homeland Security Act of 2002 ("HSA"), Pub. L. No.
107-296, 441, 116 Stat. 2135, 2178, 2192 (Nov. 25,
2002). The Executive Office for Immigration Review
("EOIR"), which includes the Immigration Courts and the
Board of Immigration Appeals, remained within the
Department of Justice. Since the Initial Report,
numerous aspects of U.S. immigration law and practice
have changed substantially. The following discussion
seeks to highlight the most notable developments.
207. At present, the United States provides annually for
the legal immigration of over 700,000 aliens each year,
with special preferences granted for family
reunification and particular employment categories. In
2003, 705,827 aliens immigrated legally to the United
States. In addition, each year the United States grants
admission to refugees fleeing their home country, and
accords asylum to many others already present in the
United States. Illegal immigration to the United States,
however, continues to grow substantially. The total
number of aliens illegally in the United States was
estimated in 2000 to be over 7 million. This number rose
consistently by approximately 350,000 a year from
1990-1999. Using this estimate, the number of illegal
aliens residing in the United States today may be as
high as 8.5 million. In response, the United States has
sought to balance its legal immigration system with a
fair and just removal process that works to expel
illegal aliens while securing the borders and protecting
United States citizens and lawfully admitted aliens.
208. There have considerable changes in U.S. immigration
law since the Initial Report. One significant piece of
immigration reform legislation enacted since the last
U.S. report is the Anti-Terrorism and Effective Death
Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 279
(1996) (AEDPA). The AEDPA, among other things,
established a ground of inadmissibility to the U.S. for
members or representatives of foreign terrorist
organizations and provided related bars to various
immigration benefits and forms of relief from
deportation such as withholding of deportation,
voluntary departure, and adjustment of status. The Act
also established new alien terrorist removal procedures
at title V of the INA, although the special procedures
have not yet been employed. In addition, the AEDPA
allowed for deportation of nonviolent offenders prior to
completion of their sentences and broadened the
definition of "aggravated felony," to which significant
immigration consequences attach.
209. Several months later, Congress enacted the
Illegal Immigration Reform and Immigrant Responsibility
Act of 1996, Pub. L. No. 104-208, 110 Stat. 3546 (Sept.
30, 1996) (IIRIRA), which comprehensively overhauled the
immigration laws of the United States. IIRIRA replaced
exclusion and deportation proceedings with "removal
proceedings." 997. An alien in removal proceedings
post-IIRIRA can be charged as removable in one of two
ways, "inadmissible" or "deportable."
210. Prior to IIRIRA the government looked to whether
an alien had made an "entry" into the United States to
determine whether exclusion or deportation proceedings
applied. Entry referred to those aliens, within the
United States, who were inspected and admitted, as well
as those who evaded inspection and came into the United
States illegally. The INA now requires that the
government look not to whether an alien had "entered"
the United States, but whether the alien had been
"admitted" to the United States. Admission is
statutorily defined in the INA as a lawful entry
following inspection and authorization by an immigration
officer. 8 U.S.C. 1101(a)(13)(A). Aliens who have
been admitted to the United States are charged as
deportable when placed into removal proceedings. Aliens
who are present in the United States but were never
inspected and admitted at an official entry point to the
United States are charged as inadmissible. The
provisions of the INA apply different grounds of removal
to deportable (8 U.S.C. 1227), and inadmissible (8
U.S.C. 1182) aliens.
211. Arriving Aliens Who Are Inspected at the
Border. An alien has the burden of satisfying the
immigration officer at the border point of entry that
the alien is entitled to be admitted to the United
States and is not subject to removal. If the officer
concludes the alien is not entitled to be admitted to
the United States, the officer may temporarily detain
the alien for further inquiry. The purpose of the second
inquiry is to gather additional information regarding
the aliens admissibility. If DHS determines that the
alien will not be admitted, the alien is detained for
further proceedings. DHS may at any time permit an alien
to withdraw his or her application for admission. 8
C.F.R. 235.4.
212. Parole. DHS may, in its discretion,
parole (release) into the United States an arriving
alien who is not admitted. In general, parole may be
granted on a case-by-case basis for urgent humanitarian
reasons or significant public benefit. 8 U.S.C.
1182(d)(5). Parole may also be granted to aliens who
have serious medical conditions where detention would
not be appropriate. 8 C.F.R. §
212.5(b)(1).
213. Unaccompanied Juveniles. Special rules
apply to unaccompanied juveniles. The care and placement
of unaccompanied juveniles was recently transferred from
DHS to the U.S. Department of Health and Human Services,
Office of Refugee Resettlement (ORR), by the Homeland
Security Act of 2002. ORR endeavors to place
unaccompanied juveniles with a relative or in a licensed
shelter care facility. 8 C.F.R. §§
1212.5(a)(3)(i), 1236.3.
214. Removal. Aliens physically present in the
United States, who were not stopped at or near the
border, may be expelled or "removed" pursuant to
extensive procedural safeguards provided by the
Immigration and Nationality Act (INA), 8 U.S.C. 1101
et. seq. Aliens who are illegally present in the United
States are subject to removal proceedings. Expedited
removal is discussed below in the removal hearing
subcategory. Aliens who were admitted (inspected and
authorized by an immigration officer upon arrival) are
charged as deportable when placed into removal
proceedings. Grounds for deportation include, but are
not limited to: (i) violation of nonimmigrant status;
(ii) marriage fraud; (iii) falsification of documents;
(iv) alien smuggling (v) national security grounds; and
(vi) conviction of certain crimes.
215. Inadmissible Aliens. Aliens who have not
been admitted to the United States are charged as
inadmissible when placed into removal proceedings.
Grounds of inadmissibility include, but are not limited
to: (i) health related grounds; (ii) certain criminal
violations; (iii) national security and terrorism
grounds; (iv) public charge; (v) aliens present without
being admitted or paroled; and (vi) falsification of
facts or documents to procure an immigration benefit.
Regardless of whether an alien is charged as
inadmissible or deportable, removal hearings are held
before one of the U.S. Immigration Courts, which reside
within the Department of Justices Executive Office of
Immigration Review.
Relief and protection from removal.
216. Waivers. Various waivers are available for
some of the grounds of inadmissibility. For example, a
waiver of inadmissibility is available under section
212(h) of the INA for certain minor criminal offenses.
To qualify, the alien applicant must demonstrate that he
or she is the spouse, parent, son, or daughter of a U.S.
citizen or lawful permanent resident of the U.S. and
that the U.S. citizen or lawful permanent resident
family member would suffer extreme hardship if the alien
applicant were removed from the United States. 8
U.S.C. §
1182(h).
217. Cancellation of Removal. Section 304 of
IIRIRA
eliminated the former INA §
212(c) waiver of inadmissibility and the former form of
relief called "suspension of deportation" and replaced
them with a form of relief from removal called
"cancellation of removal." See 8 U.S.C.
1229b(a). One form of cancellation of removal is for
lawful permanent residents (LPR), the other for
non-LPRs. As a general matter, an immigration judge may
cancel the removal of an LPR if the alien has been an
LPR for at least five years, has resided continuously in
the United States for at least seven years after having
been admitted in any status, and has not been convicted
of an aggravated felony.
218. Cancellation of removal is also available to a
non-LPR who is inadmissible or deportable from the
United States if the alien has been physically present
in the United States for a continuous period of not less
than ten years immediately preceding the date of such
application, has been a person of good moral character
during such period, has not been convicted of a criminal
offense or security or terrorist related crime, and
establishes that removal would result in "exceptional
and extremely unusual hardship" to the aliens spouse,
parent, or child, who is a U.S. citizen or LPR. See
8 U.S.C. §
1229b(b).
219. Asylum. See discussion below under
sub-heading "United States refugee and asylum policy."
220. Convention Against Torture. Regulations
implementing Article 3 of the Convention Against Torture
permit aliens to raise Article 3 claims during the
course of immigration removal proceedings. These
regulations fully implement U.S. obligations under
Article 3 and set forth a fair and rule-bound process
for considering claims for protection. Individuals
routinely assert Article 3 claims before immigration
judges within the EOIR, whose decisions are subject to
review by the Board of Immigration Appeals, and
ultimately, to review in U.S. federal courts. In
exceptional cases where an arriving alien is believed to
be inadmissible on terrorism-related grounds, Congress
has authorized alternate removal procedures in limited
circumstances that do not require consideration or
review by EOIR. See 8 U.S.C. §
1225(c). The implementing regulations provide that
removal pursuant to section 235(c) of the Act shall not
proceed "under circumstances that violate Article 3 of
the Convention Against Torture." See 8
C.F.R. §
235.8(b)(4).
221. Article 3 protection is a more limited form of
protection than that afforded to aliens granted asylum
under the INA. This more limited form of protection is
similar to withholding of removal, see 8 U.S.C.
1231(b)(3), through which the United States
implements its non-refoulement obligations under the
Refugee Protocol. An alien granted protection under the
Convention Against Torture may be removed to a third
country where there are no substantial grounds for
believing that the alien will be subjected to torture.
Furthermore, the regulations contain special streamlined
provisions for terminating Article 3 protection for an
alien who is subject to criminal and security-related
bars, when substantial grounds for believing the alien
would be tortured if removed to a particular country no
longer exist. Finally, in a very small number of
appropriate cases, pursuant to 8 C.F.R. 208.18(c),
the United States may consider diplomatic assurances
from the country of proposed removal that the alien will
not be tortured if removed there. In such removal cases,
the Secretary of Homeland Security (and in cases arising
prior to the enactment of the Homeland Security Act, the
Attorney General), in consultation with the Department
of State, would carefully assess such assurances to
determine whether they are sufficiently reliable so as
to allow the individuals removal consistent with
Article 3 of the Torture Convention.
222. Aliens who are subject to criminal- or
security-related grounds and are thus ineligible for
other immigration benefits or protection may be
eligible for protection under Article 3. The United
States provides a more limited form of protection
"deferral of removal" to aliens otherwise subject to
exclusion grounds.
223. Voluntary Departure. The Attorney General
or Secretary of Homeland Security may permit an alien
voluntarily to depart the United States at the aliens
own expense in lieu of being subject to removal
proceedings or prior to the completion of removal
proceedings. Voluntary departure is beneficial inasmuch
as it allows the removable alien to avoid an order of
removal, which can trigger a lengthy bar to readmission
to the United States. The period within which the alien
must voluntarily depart may not exceed 120 days. Certain
criminal or terrorist aliens are ineligible for this
form of relief from removal. See 8 U.S.C.
1229c(a).
224. An alien, unless subject to the criminal or
terrorist bars to voluntary departure, may also request
voluntary departure at the conclusion of removal
proceedings. See 8 U.S.C. 1229c(b). In order
to receive post-hearing voluntary departure, an alien
must have been physically present in the United States
for at least one year prior to service of the NTA, must
show good moral character, must not be subject to the
criminal or terrorist bars to such relief, must not have
been granted voluntary departure prior to the hearing,
and must establish by clear and convincing evidence that
he or she can leave at their own expense and that he or
she intends to do so. The qualifying alien may only
receive up to 60 days to effect a grant of voluntary
departure following completion of removal proceedings.
225. Removal hearing. In general, proceedings
before an immigration judge commence when the Department
of Homeland Security (DHS) issues a Notice to Appear
(NTA), charging the alien as deportable or inadmissible
and thus removable from the United States. 8 C.F.R. §
239.1(a). An alien who concedes removability may apply
for discretionary relief from removal provided he or she
meets the statutory requirements for such relief. An
alien who has not applied for discretionary relief or
voluntary departure may be ordered removed from the
United States by the immigration judge.
226. In cases where an alien was admitted to the United
States and deportability is at issue, the burden is on
the government to establish that the alien is deportable
by clear and convincing evidence. 8 U.S.C.
1229a(c)(3)(A). When an alien has been charged as
inadmissible, the burden is on the alien to prove that
he or she is clearly and beyond doubt entitled to be
admitted to the United States, or, that by clear and
convincing evidence, he or she is lawfully present in
the United States pursuant to a prior admission. 8
U.S.C. §
1229a(c)(2)(A) and (B).
227. Upon issuance of the NTA, DHS may either take the alien into
custody upon issuance of a warrant, or release the alien
on bond or conditional parole. 8 C.F.R. 236(a). Such
actions occur at the discretion of DHS, with some
exceptions noted below. In most cases, an immigration
judge may review a custody or bond decision made by DHS
at the request of an alien or his or her representative.
Exceptions include: (i) aliens who have violated
national security grounds; and (ii) aliens convicted of
certain serious crimes. 8 C.F.R. §§
1003.19; 1236.1.
228. Review by the federal courts of the lawfulness of
detention remains available through a petition for writ
of habeas corpus (habeas petition). DHS is obligated by
statute to take into custody any alien convicted of
certain criminal offenses or terrorist activity, but in
most cases may release the alien if such release is
deemed necessary to provide protection to a witness or
potential witness cooperating in a major investigation,
and DHS decides that the aliens release will not pose a
danger and the alien is likely to appear for scheduled
proceedings. 8 U.S.C. §
1226(c)(2). An alien's release on bond or parole may be
revoked at any time in the discretion of DHS. 8 U.S.C.
1226(b).
229. Removal hearings are open to the public, except
that the immigration judge may, due to lack of space, or
for the purpose of protecting witnesses, parties, the
public interest, or abused alien spouses, limit
attendance or hold a closed hearing in any specific
case. 8 C.F.R. §
1003.27. Proceedings may also be closed to the public
upon a showing by DHS that information to be disclosed
in court may harm the national security or law
enforcement interests of the United States. 8 C.F.R. §
1003.27(d).
230. At the outset of a proceeding, the immigration
judge must advise the alien of their right to
representation, information on pro-bono counsel, and
that the alien will have the opportunity to examine and
object to evidence and to cross-examine witnesses. The
immigration judge must also read to the alien the facts
alleged in the NTA and request that the alien admit or
deny each factual allegation under oath. See 8
C.F.R. §
1240(b)(1).
231. During removal proceedings, the immigration
judge has the authority to determine whether an alien is
inadmissible or deportable, to grant discretionary
relief from removal (e.g., voluntary departure, asylum,
cancellation of removal), and to determine the country
to which an alien's removal will be directed. An alien
in removal proceedings retains the right to
representation, at no expense to the government, by
qualified counsel of his choice. 8 U.S.C. §
1229a(b)(2)(B)(4). An alien must also be afforded a
competent, impartial interpreter if the alien is not
able to communicate effectively in English.
232. The United and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001 ("USA PATRIOT Act"), Pub. L. No.
107-56, 115 Stat. 272 (Oct. 26, 2001), amended the INA,
significantly expanded the terrorism-related grounds of
inadmissibility and deportability. The USA PATRIOT Act
also set forth provisions authorizing immigration
authorities to detain and remove alien terrorists and
those who support them and providing for humanitarian
immigration relief to non-citizen victims of the attacks
on 11 September, 2001.
233. The Intelligence Reform and Terrorism Prevention
Act of 2004, Pub. L. No. 108-458, 118 Stat. 3638 (Dec.
7, 2004), established new grounds of inadmissibility and
deportability and bars to immigration relief designed to
prevent human rights abusers (i.e., those aliens who
have engaged in genocide, torture, extrajudicial
killings, or severe violations of religious freedom)
from entering or remaining in the United States. The
statute also broadened the authority of the Office of
Special Investigations (OSI) within the Department of
Justices Criminal Division. The OSI detects,
investigates and takes legal action to denaturalize
aliens who are inadmissible for having participated in
Nazi persecution, genocide, torture or extrajudicial
killing. In addition, the law created the Human
Smuggling and Trafficking Center within the Department
of State to achieve greater integration and overall
effectiveness in the U.S. government's efforts to combat
alien smuggling, trafficking in persons, and criminal
support of clandestine terrorist travel.
234. Hearing in Absentia. If an alien fails to
appear at his or her removal proceeding, he or she will
be ordered removed from the United States if the
government establishes by "clear and unequivocal
evidence that the written notice was so provided and
that the alien is removable." 8 U.S.C. §
1229a(b)(5). An in absentia order may be rescinded in
two circumstances. The alien may make a motion to reopen
within 180 days of the final order if he or she can show
that the failure to appear was due to exceptional
circumstances, or he or she may file a motion to reopen
at any time showing that he or she did not receive
proper notice of the hearing. 8 U.S.C. §
1229a(b)(5)(C).
Additional removal proceedings in particular
circumstances
235. Expedited Removal of Arriving Aliens. The
IIRIRA established a special, expedited removal
procedure for certain aliens. Persons found to be
inadmissible at a port-of-entry under sections
212(a)(6)(C) (seeking to procure visa or admission to
the United States by fraud or willful misrepresentation)
or 212(a)(7) (not possessing valid entry documents) of
the INA are subject to immediate removal unless the
alien satisfies exceptions defined in the INA. 8
U.S.C. §
1225(b)(1). Expedited removal procedures currently are
also applied to two categories of aliens who evade
inspection and enter the United States illegally: (1)
aliens arriving by sea who have not been in the United
States for at least two years; and (2) aliens
apprehended within 100 miles of a U.S. international
land border within 14 days of entry. Implementation of
expedited removal with respect to the latter category
has commenced in select areas of the United States and
was recently expanded to cover the entire southwest
border of the United States. Expedited removal is
necessary to prevent potential dangerous mass migrations
of economic migrants by sea and to enhance the security
and safety of the U.S. land border.
236. Before the expedited removal procedure is used, the examining
officer creates a statement of the facts regarding an
aliens identity, alienage, and inadmissibility. 8
C.F.R. 235.3(b)(2)(i). The officer also advises the
alien of the charges against him or her and affords the
alien the opportunity to respond to those charges.
Id. If an alien claims to be a permanent resident, a
refugee, an asylee, or a United States citizen, the
alien is referred to an immigration judge for a
determination of that claim or for a removal hearing if
the claim is verified. 8 C.F.R. §
235.3(b)(5).
237. Aliens placed in expedited removal are generally
not entitled to a hearing before an immigration judge
unless they are found to have a "credible fear" of
persecution or torture in their country of origin (i.e.,
a "significant possibility" that the alien could
establish eligibility for asylum or for protection under
the Convention Against Torture). 8 U.S.C. §
1225(b)(1)(B)(v). If the alien expresses a fear of
return to his or her country or indicates a desire to
apply for asylum, the alien is referred to an asylum
officer for a credible fear interview to determine
whether the alien has a credible fear of persecution or
torture. 8 C.F.R. §
235.3(b)(4). An alien has the right to contact family
members, friends, attorneys, or representatives prior to
the interview. 8 C.F.R. §
1235.3(b)(4)(B). The alien may have a representative
present at the interview, and the asylum officer must
arrange for an interpreter for the interview if
necessary. 8 C.F.R. 1208.30(d)(5). If the asylum
officer finds that the alien does not have a credible
fear of persecution or torture, the alien may request
review of that determination by an immigration judge. 8
C.F.R. §
1235.3(4)(C). If the officer finds that credible fear
exists, the alien is referred to an immigration judge
for full consideration of any protection claims. 8
C.F.R. §
208.30(f).
238. Aliens denied admission at the border are considered to be at "the
threshold of entry" and thus cannot assert a liberty
interest under the Constitution to be admitted into the
United States. Shaughnessy v Mezei, 345 U.S. 206
(1953); U.S. ex rel. Knauff v. Shaughnessy, 338
U.S. 537 (1950).
239. Aliens Convicted of Serious Crimes. An
alien who has not been lawfully admitted for permanent
residence and has been convicted of an aggravated felony
may be placed into a different kind of removal
proceeding under section 238 of the INA, 8 U.S.C. §
1228. An alien placed into section 238 proceedings must
be given written notice of the allegations and legal
charges. 8 C.F.R. §
1238.1(i). The alien may inspect the evidence supporting
the charges and may rebut the charges within 10 days (13
days by mail) of service of the notice. 8 C.F.R. §
1238.1(ii). During this period, the alien may request in
writing the country he or she elects as the country of
removal. Id. The alien has the right to
representation by counsel of his or her choice, at no
expense to the government, during this process and
retains the right to request withholding of removal
under 8 U.S.C. §
1231(b)(3) if he or she fears persecution or torture in
the designated country of removal.
240. Decisions and appeals. A decision
of an immigration judge in a removal hearing may be
written or oral. 8 C.F.R. §
1003.37. Appeal from the decision lies with the Board of
Immigration Appeals. 8 C.F.R. 1003.38.
241. Federal Court Review. Judicial
review of the Board of Immigration Appeals decision is
generally available via a petition for review in a U.S.
Court of Appeals. 8 U.S.C. 1252(a). An alien may not
seek judicial review unless and until he or she has
exhausted his or her administrative remedies. 8 U.S.C. §
1252(d)(1). An alien, in limited circumstances, may also
file a petition for habeas corpus in a federal district
court to challenge the lawfulness of his or her
detention. Zadvydas, 533 U.S. 678.
242. Post-Order Detention. Section
241(a)(1)(A) of the INA provides that "when an alien is
ordered removed, the Attorney General shall remove the
alien from the United States within a period of 90
days." 8 U.S.C. 1231(a)(1)(A). The law requires that,
during the 90-day period, certain criminal and terrorist
aliens must be detained. 8 U.S.C. §
1231(a)(2)(A). After 90 days, detention of such aliens
is no longer mandatory, and is based on an assessment of
the flight and safety risk attributed to the alien given
his or her history. 8 C.F.R. §
241.4. If after six months there is no significant
likelihood of removal in the reasonably foreseeable
future, an alien must be released unless special
circumstances exist (e.g., aliens release would
endanger national security). Zadvydas, 533 U.S.
678; 8 C.F.R §
241.14. Before determining whether a special
circumstance applies, DHS makes a determination that no
conditions of release can be reasonably expected to
avoid the action threatened by the alien. Id.
243. In Clark v. Martinez, 543 U.S.___,
125 S. Ct. 716 (2005), the Supreme Court interpreted
INA §
241(a)(6) to mean that the six-month presumptive
detention period noted in Zadvydas applies
equally to all categories of aliens described in INA
241(a)(6). As a result, the provisions of 8 C.F.R.
241.13 and .14 apply to inadmissible and excludable
aliens, including Mariel Cubans, alien crewman, and
stowaways.
244. Country of removal. Section 241(b) of the INA, 8 U.S.C. §
1231(b), sets forth what is generally a four-step
process to determine the country to which an alien will
be removed. First, an alien generally will be removed to
the country of his choice. If that removal option is not
available, the alien generally will be removed to the
country of his citizenship. Third, in the event those
removal options are not available, the alien generally
will be removed to one of the countries with which he
has a lesser connection (e.g., country of birth, country
from which he traveled to the United States, country of
last residence). Finally, if the preceding removal
options are "impracticable, inadvisable, or impossible"
other countries of removal will be considered. See
generally Jama v. Immigration and Customs
Enforcement, 125 S. Ct. 694 (2005) (holding that INA
generally does not require foreign government's
"acceptance" of alien in order for DHS to effect removal
to that country).
245. United States refugee and asylum policy.
The refugee and asylum policy of the United States,
remains that set forth primarily in the Refugee Act of
1980 and the Immigration and Nationality Act, in
accordance with the United States historical commitment
to the protection of refugees and in compliance with the
1967 United Nations Protocol relating to the Status of
Refugees, Jan. 31, 1967, 19 U.S.T. 6224, T.I.A.S. No.
6577 (1968), to which the United States acceded in 1968.
246. Refugee admissions. The Immigration and
Nationality Act (INA) provides for the admission into
the United States of refugees outside the United States.
To be considered a refugee for the purpose of admission
to the United States a person must meet the definition
contained in INA 101(a)(42), 8 U.S.C. 1101(a)(42).
See below.
247. Each year, after appropriate consultation with
Congress, the President determines an authorized
admission level for refugees. The admission ceiling for
refugees in U.S. fiscal year 1994 was 121,000. The
annual ceiling represents the maximum number of refugees
allowed to enter the United States in the stated year,
allocated by world geographical region. INA §
207(a). The President may accommodate an emergency
refugee situation by increasing the refugee admissions
ceiling for a 12-month period. INA §
207(b); 8 U.S.C. §
1157(b). The numbers of refugees admitted to the United
States in subsequent fiscal years are as follows: FY
1995: 99,490; FY 1996: 75,682; FY 1997: 70,085; FY 1998:
76,554; FY 1999: 85,317; FY 2000: 73,144; FY 2001:
69,304; FY 2002: 27,029; FY 2003: 28,422; and FY 2004:
52,868. See Annex III for more details.
248. Asylum. Under the INA, persons at a
United States port of entry or within the United States
may seek refugee protection through a grant of asylum or
withholding of removal. Asylum is a discretionary form
of relief from removal that may be granted to an
individual determined to be a refugee. The United States
definition of refugee, derived from the U.N. Refugee
Protocol, is "any person who is outside of any country
of such person's nationality or, in the case of a person
having no nationality, is outside any country in which
such person last habitually resided, and who is unable
or unwilling to return to, and is unable or unwilling to
avail himself or herself of the protection of, that
country because of persecution or a well-founded fear of
persecution on account of race, religion, nationality,
membership in a particular social group, or political
opinion." INA 101(a)(42)(A); 8 U.S.C. §
1101(a)(42)(A). U.S. law further provides that a person
"who has been forced to abort a pregnancy or to undergo
involuntary sterilization, or who has been persecuted
for failure or refusal to undergo such a procedure or
for other resistance to a coercive population control
program, shall be deemed to have been persecuted on
account of political opinion, and a person who has a
well-founded fear that he or she will be forced to
undergo such a procedure or subject to persecution for
such failure, refusal or resistance shall be deemed to
have a well founded fear of persecution on account of
political opinion." INA §
101(a)(42); 8 U.S.C.
§ 1101(a)(42).
249. The United States refugee definition excludes
"any person who ordered, incited, assisted, or otherwise
participated in the persecution of any person on account
of race, religion, nationality, membership in a
particular social group, or political opinion." INA §
101(a)(42)(B). The statutory provision for withholding
of removal (non-refoulement), derived from
Article 33 of the Convention, provides that an
individual cannot be removed to a country where his or
her life or freedom would be threatened on account of
race, religion, nationality, membership in a particular
social group, or political opinion. INA §
241(b)(3), 8 U.S.C. §
1231(b)(3). There are bars to a grant of asylum or
withholding of removal, even if eligibility is otherwise
established, based on persecution of others, criminal
activity, or security concerns, described below. There
are certain limitations on the right to apply for
asylum, also discussed further below. A related form of
protection, temporary protected status, discussed in
greater detail below, is available to persons already
within the United States when the Homeland Security
Secretary determines that certain extreme and temporary
conditions in their country of nationality (such as
ongoing armed conflict or an environmental disaster)
generally do not permit the United States to return them
to that country in safety.
250. Asylum Claims: Numbers. At present, there
are some 100,000 asylum claims pending in various stages
of adjudication within the affirmative asylum process.
This does not include asylum cases filed by individuals
in removal proceedings, which are pending before the
Executive Office for Immigration Review within the
Department of Justice. All but approximately 30,000 of
these applications were submitted by individuals who now
are covered by special legislation that allows them to
apply for lawful permanent resident status. It is
expected that the vast majority of the applicants
covered by the special legislation will either become
lawful permanent residents under those provisions and
withdraw their claims for asylum or, having abandoned
their asylum claims, will not appear for an asylum
interview when scheduled. It is anticipated the Asylum
Program will have addressed the backlog of asylum claims
by the end of 2006. The number of new asylum receipts
has decreased significantly since 2001 and 2002, when
the Asylum Division was receiving approximately 60,000
new cases annually. In fiscal year 2004, the Asylum
Division received 28,000 applications. The Asylum
Division received approximately 23,500 new applications
in fiscal year 2005.
251. Asylum Claims: Process. Asylum applications
may be submitted by persons who are at a United States
port of entry or are physically present in the United
States. An asylum applicant may include in his or her
application his or her spouse and any unmarried children
under age 21 who are present in the United States.
Asylum may be granted without regard to the applicant's
immigration status or country of origin. There are two
paths for an alien present in the United States seeking
asylum. First, the alien may come forward to United
States Citizenship and Immigration Services (USCIS)
within the Department of Homeland Security to apply
"affirmatively." Second, the alien may seek asylum as a
defense to removal proceedings, even if an ineligibility
determination was made during the affirmative process.
Under the affirmative process, grants of asylum are
within the discretion of the Secretary of the Department
of Homeland Security, as executed by Asylum Officers
within USCIS. Under the defensive process, grants of
asylum are within the discretion of the Attorney
General, as executed by immigration judges or the Board
of Immigration Appeals within the Department of Justice,
Executive Office for Immigration Review.
252. Asylum Application: Prohibitions. The
IIRIRA of 1996 (discussed supra), which applies to all
asylum applications filed on or after 1 April, 1997,
included certain prohibitions on the ability to apply
for asylum. Under these provisions, an asylum-seeker is
not permitted to apply for asylum in the United States
if 1) he or she can be returned pursuant to a bilateral
or multilateral agreement to a third country where he or
she would have access to full and fair procedures for
determining a claim to asylum, 2) he or she failed to
submit an application for asylum within 1 year from the
date of last arrival, unless the person can establish
exceptional circumstances relating to the delay or
changed circumstances that materially affect eligibility
for asylum; or 3) he or she was previously denied asylum
in the United States, unless there have been changed
circumstances that materially affect eligibility for
asylum. INA §
208(a)(2), 8 U.S.C. §
1158(a)(2). These limitations on applying for asylum are
not applicable to requests for withholding of removal
(non-refoulement). To date, the United States has
entered into only one bilateral agreement to return
asylum-seekers to a safe third country under the
limitation on filing noted above. In December 2002, the
United States entered into such an agreement with
Canada. The agreement is limited to individuals seeking
asylum at land border ports of entry on the
U.S.-Canadian border and contains broad exceptions based
on principles of family unity. The agreement went into
effect on 29 December, 2004, after both countries issued
final implementing regulations.
253. Affirmative asylum. Affirmative asylum
claims are heard and decided by a corps of USCIS Asylum
Officers located in eight regional offices. The Asylum
Officer conducts an interview with the applicant "in a
non-adversarial manner ... to elicit all relevant and
useful information bearing on the applicant's
eligibility." 8 C.F.R. §
208.9(b). The applicant may have counsel present at the
interview and may submit the affidavits of witnesses. In
addition, the applicant may supplement the record at the
time of the interview. 8 C.F.R. §
208.9.
254. If the Asylum Officer determines that the
applicant is not eligible for asylum and the applicant
is not in valid immigration status, the applicant is
placed in removal proceedings before an immigration
judge within the Department of Justice, and the asylum
application is referred to the immigration judge to
consider de novo. 8 C.F.R. §
208.14. If an ineligible applicant is in valid status,
the Asylum Officer denies the asylum application, after
the applicant is provided the reasons for the negative
determination and an opportunity to rebut the grounds
for denial. The applicant retains his or her valid
status (e.g., student status). Each Asylum Officer
decision is reviewed by a Supervisory Asylum Officer.
The basis for an Asylum Officer's decision to deny or
refer an application must be communicated to the
applicant in writing and must include an assessment of
the applicants credibility. 8 C.F.R §
208.19. There is no appeal of a grant or denial of
asylum by an Asylum Officer. If a denied asylum seeker
no longer retains valid status (either it expired or the
asylum seeker took actions inconsistent with that
status) and is placed in removal proceedings, he or she
can apply for asylum de novo with the immigration judge.
255. Asylum: Country Conditions Information.
Copies of all asylum applications are forwarded to the
Office of Country Reports and Asylum Affairs (CRA)
within the Department of States Bureau of Democracy
Rights and Labor (DRL). At its option, DRL may comment
on the application or may provide detailed country
conditions information relevant to the application. 8
C.F.R. §
208.11. In addition to any information from the
Department of State, DHS/USCIS Asylum officers consider
country conditions information from a wide variety of
sources. The Resource Information Center within the
Asylum Division of DHS/USCIS is responsible for
assisting Asylum Officers with country conditions
research and disseminating reliable country conditions
information and reports to the eight asylum field
offices.
256. Asylum: Mandatory denials. Asylum claims
cannot be granted when: (i) the alien ordered, incited,
assisted or otherwise participated in the persecution of
any person on account of race, religion, nationality,
membership in a particular social group, or political
opinion; (ii ) the alien, having been convicted by a
final judgment of a particularly serious crime
(including an aggravated felony), constitutes a danger
to the community of the United States; (iii) there are
serious reasons for believing that the alien has
committed a serious nonpolitical crime outside the
United States prior to arrival in the United States;
(iv) there are reasonable grounds for regarding the
alien as a danger to the security of the United States;
(v) the alien is inadmissible under certain statutory
provisions relating to terrorist activity; or (vi) the
alien was firmly resettled in another country prior to
arriving to the United States. INA §
208(b)(2).
257. Asylum: Discretionary denials. An
application for asylum may also be denied as a matter of
discretion, where appropriate. INA §
208(b)(1); 8 C.F.R. §§
208.13-.14, 1208.13-.14.
258. Asylum Termination. Asylum officers also
have limited power to terminate asylum. This power may
be exercised when: (i) there is a showing of fraud in
the asylum application such that the applicant was not
eligible for asylum when it was granted; (ii) the
individual no longer meets the definition of refugee
owing to a fundamental change in circumstances; (iii)
the individual may be removed, pursuant to a bilateral
or multilateral agreement to a country other than the
country of nationality (or if no nationality, the
country of last habitual residence) in which the
individuals life or freedom would not be threatened on
account of one of the protected characteristics in the
refugee definition, and the individual is eligible to
receive asylum or equivalent temporary protection
(currently the United States has not entered into any
such agreements); (iv) the individual has voluntarily
availed himself or herself of the protection of his or
her country by returning there with permanent resident
status or the reasonable possibility of obtaining such
status with the same rights and obligations pertaining
to other permanent residents of that country; (v) the
individual has acquired a new nationality and enjoys the
protection of the country of his or her new nationality;
or (vi) a mandatory bar to a grant of asylum applies.
INA §
208(c)(2), 8 C.F.R. §
208.24(a).
259. Asylum and withholding of removal in removal
proceedings. If an alien has been served with a
Notice to Appear, he must appear before an immigration
judge, with whom he may file an asylum application. The
filing of an asylum application is also considered a
request for withholding of removal under INA section
241(b)(3). 8 C.F.R. §§
208.3(b), 1208.3(b).
260. Asylum and withholding of removal for aliens
subject to expedited removal. In 1997, Congress
created expedited removal, which provides for the prompt
removal of certain aliens who are illegally arriving at
or present in the United States. INA §
235(b). Aliens subject to expedited removal may be
removed without referral to an immigration judge for a
removal hearing. INA §
235(b)(1)(A)(i). However, an alien subject to expedited
removal who expresses either an intention to apply for
asylum or a fear of persecution must first be
interviewed by an asylum officer. INA §
235(b)(1)(A)(ii). If the asylum officer finds that the
alien has a significant possibility of establishing
eligibility for asylum or withholding of removal, the
alien will be served with a Notice to Appear and given
an opportunity to seek protection in removal proceedings
before an immigration judge. INA §
235(b)(1)(B)(ii). If the asylum officer makes a negative
finding, the alien will be removed, unless he or she
requests that an immigration judge review the finding.
An immigration judge review of an asylum officers
negative finding must be completed within seven days of
the finding. INA §
235(b)(1)(B)(iii)(III).
261. Withholding of removal under INA §
241(b)(3) differs from a request for asylum in four
ways. First, section 241(b)(3) prohibits the government
from removing an alien only to a specific country, while
asylum protects the alien from removal generally.
Second, in order to qualify for withholding of removal,
an alien must demonstrate that his or her "life or
freedom would be threatened" in the country of removal,
whereas asylum only requires the alien to demonstrate a
well-founded fear of persecution. Third, protection
under section 241(b)(3) cannot result in permanent
residence, while asylees are eligible to apply for
permanent residence after one year. Fourth, relief under
section 241(b)(3) is a mandatory restriction imposed on
the government while asylum is an immigration benefit
which the government has discretion to grant or deny.
While asylum claims may be adjudicated either by an
asylum officer or an immigration judge, withholding of
removal claims made under INA 241(b)(3) are
adjudicated by immigration judges only. 8 C.F.R. §§
208.16(a), 1208.16(a).
262. An alien will be denied withholding of removal
under INA §
241(b)(3) and may be removed to a country,
notwithstanding any threat to his or her life or freedom
that may exist there, if: (i) he or she has engaged in
persecution of others; (ii) he or she has been convicted
of a particularly serious crime that constitutes a
danger to the community of the United States; (iii)
there are serious reasons to believe that he or she has
committed a serious non-political crime outside of the
United States; or (iv) there are reasonable grounds to
believe that he or she may represent a danger to the
security of the United States. INA §
241(b)(3)(B).
263. Denial of asylum or withholding of removal by an
immigration judge could result in a final order of
removal. Aliens granted withholding of removal could
also become subject to final orders of removal because
the government may remove these aliens to certain
countries where their lives or freedom would not be
threatened. INA §
241(b)(1), (2). Aliens may appeal immigration judge
decisions to the Board of Immigration Appeals within 30
days of the immigration judge's decision. 8 C.F.R. §
1240.15. Appeal, through a "petition for review," to a
federal court of appeals is permitted within 30 days of
the Board's decision. INA §
242(b)(1).
264. Rights of refugees and asylees. An
applicant for asylum may be granted employment
authorization if: (1) he or she has received a
recommended approval of his or her asylum application;
or (2) 180 days have elapsed following the filing of the
asylum application, and the application has not been
denied. 8 C.F.R. §
208.7. An asylum applicant may be granted, in the
discretion of the Secretary of Homeland Security,
advance parole to travel abroad to a third country. 8
C.F.R. §
212.5(f).
265. Spouses and Children. The spouse and
children of the person granted asylum or admitted as a
refugee may accompany or follow such person without
having to apply for protection independently. INA §§
207(c)(2), 208(b)(3).
266. Permanent residence. Persons admitted to
the United States as refugees are eligible for permanent
resident status after one year of continuous physical
presence in the United States. The number of refugees
adjusting to permanent resident status is not subject to
the annual limitation on immigrants into the United
States. INA §
209. An asylee may also apply for permanent resident
status after being continuously present in the United
States for at least one year after being granted asylum.
267. Temporary Protected Status. Under INA §
244, 8 U.S.C. §
1254a, the Secretary of Homeland Security has the
authority to grant temporary protected status to aliens
in the United States, temporarily allowing foreign
nationals to live and work in the United States without
fear of being sent back to unstable or dangerous
conditions. The United States thus may become, at the
Secretarys discretion, a temporary safe haven for
foreign nationals already in the country if one of three
conditions exist: (i) there is an ongoing armed conflict
within the state which would pose a serious threat to
the personal safety of returned nationals; (ii) there
has been an earthquake, flood, drought, epidemic, or
other environmental disaster in the state resulting in a
substantial but temporary disruption of living
conditions in the area affected; the state is
temporarily unable to handle adequately the return of
its nationals; and the state officially requests
temporary protected status; or (iii) there exist
extraordinary and temporary conditions in the state that
prevent nationals from returning in safety, as long as
permitting such aliens to remain temporarily in the
United States is not contrary to the national interest
of the United States. INA §
244(b)(1). A designation of temporary protected status
may last for 6 to 18 months, with the possibility of
extension for an additional 6, 12, or 18 months. INA
244(b)(2), (3)(C).
268. An alien is ineligible for temporary protected
status if he has been convicted of at least one felony
or two or more misdemeanors, or is subject to a bar to
asylum. INA §
244(c)(2)(B). An alien may also be denied temporary
protected status if certain grounds of inadmissibility
apply and are not waived. INA 244(c)(2)(A). The
Secretary of Homeland Security must withdraw temporary
protected status if: (i) the Secretary
finds that the alien was not eligible for such
status; (ii) the alien was not continuously physically
present in the United States, except for brief, casual,
and innocent departures or travel with advance
permission; or (iii) the alien failed to re-register
annually. INA 244(c)(3).
269. An alien granted temporary protected status
cannot be removed from the United States and is
authorized to work while in such status. INA §
244(a)(1). The alien may also travel abroad with advance
permission. INA §
244(f)(3). A designation temporary protected status
designation does not prevent an alien from applying for
any immigration benefit to which the alien may be
entitled. INA §
244(a)(5).
270. Since the temporary protected status program
began in 1991, eligible nationals from (or aliens having
no nationality who last habitually resided in) the
following states or parts of states have been granted
temporary protected status for the following periods:
Angola: 29 March, 2000 29 March, 2003;
Burundi: 4 November, 1997 2 November, 2006
(with the possibility of further extension);
Bosnia-Herzegovina: 10 August, 1992 10
February, 2001;
El Salvador: 1 January, 1991 30 June, 1992; 9
March, 2001 9 September, 2006 (with the possibility of
further extension);
Guinea-Bissau: 11 March, 1999 10 September,
2000;
Honduras: 5 January, 1999 5 July, 2006 (with
the possibility of further extension);
Kosovo Province: 9 June, 1998 8 December, 2000;
Kuwait: 27 March, 1991 27 March, 1992;
Lebanon 27 March, 1991 28 March, 1993;
Liberia: 27 March, 1991 28 September, 1999; 1
October, 2002 1 October, 2006 (with the possibility of
further extension);
Montserrat: 28 August, 1997 27 February, 2005;
Nicaragua: 5 January, 1999 5 July, 2006 (with
the possibility of further extension);
Rwanda: 7 June, 1994 6 December, 1997;
Sierra Leone: 4 November, 1997 3 May, 2004;
Somalia: 16 September, 1991 17 September, 2006
(with the possibility of further extension); and,
Sudan: 4 November, 1997 2 May, 2007 (with the
possibility of further extension).
Article 14 - Right to fair trial
271. Competent, independent and impartial
tribunal. States may set appropriate standards of
conduct for their judges. See Gruenburg v.
Kavanagh, 413 F. Supp. 1132, 1135 (E.D. Mich. 1976).
The Supreme Court has held, however, that a state canon
of judicial conduct that prohibits candidates for
judicial elections from announcing their views on
disputed political or legal issues violates the First
Amendment. See Republican Party v. White,
536 U.S. 765 (2002).
272. Trial by jury. The right to trial by jury reflects "a
profound judgment about the way in which law should be
enforced and justice administered". See Duncan
v. Louisiana, 391 U.S. at 155. In the U.S. system,
the jury is the fact-finder. Therefore, a judge may not
direct the jury to return a verdict of guilty, no matter
how strong the proof of guilt may be. See
Sparf and Hansen v. United States, 156 U.S. 51,
105-6 (1895). A criminal defendant is entitled to a jury
determination beyond a reasonable doubt of every element
of the crime with which he is charged, as well as any
fact (other than the fact of a prior conviction) that
increases the statutory maximum penalty for the offense.
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000);
In re Winship, 397 U.S. 358, 364 (1970). See
also, Blakely v. Washington, 124 S. Ct. 2531, 159 L.
Ed. 2d 403 (2004).
273. Civil cases. Guarantees of fairness and
openness also are ensured in the civil context, with
federal and state constitutions providing basic and
essential protections. In civil disputes, the
fundamental features of the United States judicial
system - an independent judiciary and bar, due process
and equal protection of the law - are common. Most
importantly, the Due Process and Equal Protection
Clauses of the Constitution - applicable to the states
through the Fourteenth Amendment -mandate that judicial
decision-making be fair, impartial, and devoid of
discrimination. Neutrality is the core value.
274. Neutrality means the absence of discrimination. As
is the case with criminal trials, the Equal Protection
Clause bars the use of discriminatory stereotypes in the
selection of the jury in civil cases. As the Supreme
Court held in Edmonson v. Leesville Concrete Co.,
Inc., 500 U.S. 614, 628 (1991): "Race
discrimination within the courtroom raises serious
questions as to the fairness of the proceedings
conducted there. Racial bias mars the integrity of the
judicial system and prevents the idea of democratic
government from becoming a reality." In J.E.B. v.
Alabama, 511 U.S. 127, 129 (1994), the Court
extended this principle to cases involving gender-based
exclusion of jurors, holding that "gender, like race, is
an unconstitutional proxy for juror competence and
impartiality." As the Court explained (id. at
146): "When persons are excluded from participation in
our democratic processes solely because of race or
gender, ... the integrity of our judicial system is
jeopardized."
275. Fairness of civil proceedings also is ensured by
the requirement that where they might result in serious
"hardship" to a party adversary hearings must be
provided. For instance, where a dispute between a
creditor and debtor runs the risk of resulting in
repossession, the Supreme Court has concluded that
debtors should be afforded a fair adversarial hearing.
See Fuentes v. Shevin, 407 U.S. 67 (1972).
See also, Sniadach v. Family Finance
Corp., 395 U.S. 337 (1969).
276. This is particularly true in civil cases
involving governmental action, where the Supreme Court,
since the 1970s, has recognized the importance of
granting procedural rights to individuals. In
determining whether procedures are constitutionally
adequate, the Court weighs the strength of the private
interest, the adequacy of the existing procedures, the
probable value of other safeguards, and the government's
interest. See Mathews v. Eldridge, 424
U.S. 319, 335 (1976). Depending on these factors, the
United States Constitution mandates different types of
guarantees in civil proceedings involving the
government. Basic requirements include an unbiased
tribunal; notice to the private party of the proposed
action; and the right to receive written findings from
the decision maker. Applying these principles, the Court
has thus held that persons have had a right to notice of
the detrimental action, and a right to be heard by the
decision maker. See Grannis v. Ordean, 234
U.S. 385, 394 (1918) ("The fundamental requisite of due
process of law is the opportunity to be heard"); See
Goldberg v. Kelly, 397 U.S. 254 (1970) (welfare
entitlements cannot be interrupted without a prior
evidentiary hearing). In the context of civil forfeiture
proceedings, the Court has held that citizens have a Due
Process right to a hearing to oppose the forfeiture of
their property. See United States v. James
Daniel Good Real Property, 510 U.S. 43, 48-62
(1993). And in Degen v. United States, 517 U.S.
820 (1996), the Court ruled that this right to a hearing
applies even when the citizen is a fugitive who refuses
to return in person to this country to face criminal
charges. When action is taken by a government agency,
statutory law embodied in the Administrative Procedure
Act also imposes requirements on the government, such as
the impartiality of the decision maker and the party's
right to judicial review of adverse action. As Justice
Frankfurter once wrote, the "validity and moral
authority of a conclusion largely depend on the mode by
which it was reached ... No better instrument has been
devised for arriving at truth than to give a person in
jeopardy of serious loss notice of the case against him
and an opportunity to meet it. Nor has a better way been
found for generating the feeling, so important to
popular government, that justice has been done."
Joint Anti-Fascist Refugee Committee v. McGrath, 341
U.S. 123, 171-72 (1951).
277. Although inequalities in wealth distribution
certainly have an impact on individuals' access to the
courts and to representation, the equal protection
components of state and federal constitutions have
helped smooth these differences. In particular, the
Supreme Court has held that access to judicial
proceedings cannot depend on one's ability to pay where
such proceedings are "the only effective means of
resolving the dispute at hand". Boddie v. Connecticut,
401 U.S. 371, 375-76 (1971) (holding unconstitutional a
state law conditioning a judicial decree of divorce upon
the claimant's ability to pay court fees and costs).
See also, M.L.B v. S.L.J., 519 U.S.
201 (1996) (holding unconstitutional a state law
conditioning a parent's right to appeal from a trial
court's decree terminating her parental rights on her
ability to pay record preparation fees).
278. Inequalities remain, though, in part because
neither the Constitution nor federal statutes provide a
right to appointed counsel in civil cases. Nonetheless,
the Supreme Court has made it easier for indigent
parties to afford legal representation by invalidating
prohibitions against concerted legal action. The Court
has thus recognized a right for groups to "unite to
assert their legal rights as effectively and
economically as practicable". See United
Trans. Union v. State Bar of Michigan, 401 U.S. 576,
580 (1971). In addition, Congress long ago enacted the
"federal in forma pauperis statute ... to ensure
that indigent litigants have meaningful access to the
federal courts." See Neitzke v. Williams,
490 U.S. 319, 324 (1989). And in the past 40 years,
Congress has enacted an increasing number of
fee-shifting statutes such as the Civil Rights
Attorneys Fees Awards Act in 1976 and the Equal Access
to Justice Act in 1980 that enable prevailing parties
in certain kinds of cases to recoup all or part of their
attorney's fees and expenses from the losing parties.
Rights of the accused
279. Right to prepare defense and to communicate with
counsel. Defendants retained in custody acquire
their Sixth Amendment right to counsel when formal
adversarial judicial proceedings are initiated against
them. See Brewer v. Williams, 430 U.S. 387, 398
(1977). A suspects invocation of the right to counsel
is specific to the charged offense and does not also
invoke the right to counsel for later interrogation
concerning another factually related offense, unless the
two offenses would be deemed the same for double
jeopardy purposes. See Texas v. Cobb, 532
U.S. 162, 173 (2001). In a landmark decision, the
Supreme Court held that the admission of out-of-court
testimonial statements violates the Sixth Amendment's
Confrontation Clause unless those witnesses are
unavailable for trial and the defendant has had an
opportunity to cross-examine those witnesses.
Crawford v. Washington, 541 U.S. 36 (2004).
280. The Sixth Amendment also guarantees a defendant
the right to counsel. Although there is no right to
appointment of counsel for misdemeanor offenses where no
sentence of actual imprisonment is imposed, a suspended
sentence may not be activated based upon a defendants
violation of the terms of probation where he was not
provided with counsel during the prosecution of the
offense for which he received a sentence of probation.
Alabama v. Shelton, 535 U.S. 654 (2002).
281. Right to legal assistance of own choosing.
The right to counsel in all federal criminal
prosecutions is provided for by the Sixth Amendment.
This right has been extended to state courts through
operation of the Due Process Clause of the Fourteenth
Amendment. In the case of Gideon v. Wainwright,
372 U.S. 335 (1963), the U.S. Supreme Court mandated
that every indigent person accused of a felony in a
state court must be provided with counsel. In
Argersinger v. Hamlin, 407 U.S. 25 (1972), the
Supreme Court extended this rule to provide for the
appointment of counsel to indigent persons charged with
any offense, including misdemeanors, which could result
in incarceration. In addition, a defendant may not be
sentenced to imprisonment based upon his violation of
the terms of probation previously imposed for a
misdemeanor offense, if he was not provided with counsel
during the prosecution of the misdemeanor offense.
See Alabama v. Shelton, 535 U.S. 654 (2002).
282. Protection against self-incrimination.
The Fifth Amendment provides that "No person shall be
... compelled in any criminal case to be a witness
against himself." This constitutional protection of the
individual's right against self-incrimination in
criminal cases is applicable to the states as well as
the federal government.
283. The Fifth Amendment thus prohibits the use of
involuntary statements. It not only bars the government
from calling the defendant as a witness at his trial,
but also from taking statements from the accused against
the accused's will. If a defendant confesses, he may
seek to exclude the confession from trial by alleging
that it was involuntary. The court will conduct a
factual inquiry into the circumstances surrounding the
confession to determine if the law enforcement officers
acted in a way to pressure or coerce the defendant into
confessing and, if so, whether the defendant lacked a
capacity to resist the pressure. See Colorado
v. Connelly, 479 U.S. 157 (1986). Physical coercion
will render a confession involuntary. See
Brown v. Mississippi, 297 U.S. 278 (1936).
284. An individual's right against compelled
self-incrimination applies regardless of whether charges
have been formally filed. To ensure that the individual
has knowingly waived Fifth Amendment rights when
he gives a statement during questioning by government
agents, the investigating officer conducting a custodial
interrogation is obligated to inform the suspect that
the suspect has a right to remain silent, that anything
he says can be used against him, and that the suspect
has a right to speak with an attorney before answering
questions. See Miranda v. Arizona, 384
U.S. 436 (1966). See Dickerson v. United
States, 530 U.S. 428, 444 (2000) ("Miranda announced
a constitutional rule" that cannot be overruled by
congressional enactment).
285. Review of conviction and sentence.
Individuals who allege their convictions or punishments
are in violation of federal law or the Constitution may
seek review in federal court by way of an application
for a writ of habeas corpus. See, e.g.,
Ex parte Bollman, 8 U.S. 74, 95 (1807); Stone v.
Powell, 428 U.S. 465, 474-75 n.6 (1976); Preiser
v. Rodriguez, 411 U.S. 475, 500 (1973). State
prisoners in custody may seek federal court review on
the ground that they are in custody in violation of the
Constitution or laws or treaties of the United States.
28 U.S.C. 2241, 2254. The prisoner seeking federal
review must first exhaust all state appellate remedies.
28 U.S.C. 2254 (b),(c). Federal courts have imposed
limitations on the types of issues that can be raised in
habeas corpus applications as well as procedural
requirements for raising those issues, largely out of
respect for the states interest in the finality of
their criminal convictions. See Coleman v.
Thompson, 501 U.S. 722 (1991); McCleskey v. Zant,
499 U.S. 467 (1991); Teague v. Lane, 489 U.S. 288
(1989). In 1996, Congress enacted the Antiterrorism and
Effective Death Penalty Act (AEDPA) that modified the
habeas corpus statutes by codifying many of the
judicially-created limitations. See 110 Stat.
1214 (effective April 24, 1996).
286. Double jeopardy protections for defendants.
The governments Petite policy is set out in the
United States Attorneys Manual 9-2.031 (2000). The
policy precludes federal prosecution of a defendant
after he has been prosecuted by state or federal
authorities for "substantially the same act[s] or
transaction[s]," unless three requirements are
satisfied. First, the case must involve a "substantial
federal interest." Second, the "prior prosecution must
have left that interest demonstrably unvindicated." The
policy notes that this requirement may be met when the
defendant was not convicted in the prior proceeding
because of "incompetence, corruption, intimidation, or
undue influence," "court or jury nullification in clear
disregard of the law," or "the unavailability of
significant evidence," or when the sentence imposed in
the prior proceeding was "manifestly inadequate in light
of the federal interest involved." Prosecutions that
fall within the Petite policy must be approved in
advance by an Assistant Attorney General. In Smith v.
Massachusetts, 125 S. Ct. 1129 (2005), the Supreme
Court held that a judge's ruling during a trial that
charges should be dismissed for lack of evidence
constituted a "judgment of acquittal," which could not
be revisited by that judge or any other under the Double
Jeopardy Clause.
287. Procedure in the case of juvenile persons.
Historically, confidentiality was one of the special
aspects of juvenile proceedings and the proceedings and
records were generally closed to the public and press.
More recently, states have modified or removed
traditional confidentiality provisions, making records
and proceedings more open.
288. All states and the federal criminal justice
system allow juveniles to be tried as adults in criminal
court under certain circumstances. In some states, a
prosecutor has discretion over whether to bring a case
in criminal or juvenile court. Some state laws also
provide for automatic prosecution in criminal court for
serious offences, repeat offenders, or routine traffic
citations. A juvenile who is subject to the adult
criminal justice system is entitled to the
constitutional and statutory rights and protections
provided for adults.
Article 15 - Prohibition of ex post facto laws
289. Paragraphs 508 511 of the Initial Report
describe the United States Constitutional prohibition
against enacting ex post facto laws. Article I,
section 9 of the Constitution, addressing the duties of
the U.S. Congress, states that "No ... ex post facto Law
shall be passed". Article I section 10 provides that "No
state shall ... pass any ... ex post facto Law." That
legal situation has not changed.
Article 16 - Recognition as a person under the law
290. As reported in paragraphs 513 and 514 of the
Initial Report, all human beings within the jurisdiction
of the United States are recognized as persons before
the law. In addition, the Born-Alive Infants Protection
Act of 2002, which was signed into federal law on 5
August, 2002, makes it clear that "every infant member
of the species homo sapiens who is born alive at any
stage of development" is considered a "person," "human
being," and "individual" under federal law. See 1
U.S.C. 8. Congress also enacted the Unborn Victims of
Violence Act of 2004 "to protect unborn children from
assault and murder." See Pub. L. No. 108-212.
Federal law now provides that whoever, in the course of
committing certain federal crimes, "causes the death of
. . . a child, who is in utero at the time the conduct
take place," is guilty of a separate offense and shall
be punished as if that death had occurred to the unborn
child's mother. See 18 U.S.C. 1841(a). If the
person engaging in such conduct intentionally kills the
unborn child, he will punished for intentionally killing
a human being. See 18 U.S.C. §
1841(a)(2)(C). This law does not, however, authorize the
prosecution of any woman with respect to her unborn
child, See 18 U.S.C. 1841(c)(3), nor does it
criminalize "conduct relating to an abortion for which
the consent of the pregnant woman, or a person
authorized by law to act on her behalf, has been
obtained or for which such consent is implied by law,"
see 18 U.S.C. §
1841(c)(1).
Article 17 - Freedom from arbitrary interference
with privacy, family, home
291. Right to privacy. As reported in paragraphs
515 544 of the Initial Report, freedom from arbitrary
and unlawful interference with privacy is protected
under the Fourth Amendment to the Constitution.
292. Technology: movements and conversations:
electronic surveillance. The U.S. Congress has also
recognized that there could be substantial privacy
infringements through the use of electronic devices to
track the movements of persons or things and to
intercept private communications. Such devices include
wiretaps, pen registers and trap and trace devices
(which record, respectively, outgoing and incoming
dialing, routing, addressing, or signaling information
used by communication systems, such as telephones or
computer network communications), digital "clone" pagers
and surreptitiously installed microphones. Note that the
there is a significant difference in constitutional and
statutory protections afforded to "content" devices,
such as wiretaps, as opposed to "non-content" devices,
such as pen registers. (See below for a discussion of
pen/trap provisions of Titles II and III of ECPA, Pub.
L. No. 99-508, 100 Stat. 1848).
293. In 1968, Congress enacted what is generally
referred to as Title III to regulate the use of
electronic audio surveillance and interception. 18
U.S.C. 2510-21 (Title III of the Omnibus Crime
Control and Safe Streets Act of 1968 - Wiretapping and
Electronic Surveillance, Pub. L. No. 90-351, 82 Stat.
212). Title III essentially bans the use of certain
electronic surveillance techniques by private citizens.
It makes punishable as a felony any intentional
interception of any wire, oral, or electronic
communication that would not be otherwise readily
accessible to the public; use of an interception device;
or disclosure of the contents of any communication that
has been unlawfully intercepted. 18 U.S.C. 2511.
294. Title III, however, exempts law enforcement from
the general prohibition if it meets certain explicit
conditions. The primary condition is that the government
must obtain an appropriate court order authorizing the
interception.
295. Before applying for a court order authorizing
the interception of wire or oral communications, law
enforcement generally must obtain prior approval from
specified senior officials in the Department of Justice,
in the case of federal law enforcement, or from senior
state or local prosecuting officials, in the case of
state or local law enforcement. For the interception of
electronic communications, which, generally, are
non-voice-based communications, federal agents must get
approval from a federal prosecutor to seek a court
order; state and local law enforcement must get approval
from senior state or local prosecuting officials to seek
a court order.
296. Having obtained approval, the agent must then
apply for an order from a court. The application must
set forth sufficient facts to satisfy the court that
probable cause exists to believe that (i) certain
identified persons have committed, are committing, or
will commit one of the felony offences specified by the
statute, which include serious felony offenses in the
case of federal interceptions of oral or wire
communications or any interceptions by state law
enforcement, and include any federal felony in the case
of an electronic communications interception by federal
agents; (ii) all or some of the persons have used, are
using, or will use a targeted communication facility or
premises in connection with the commission of the listed
offence; and (iii) the targeted communication facility
or premise has been used, is being used, or will be used
in connection with the crime. The agent's application
must also satisfy the judge that other less intrusive
investigative procedures have been tried without
success, would not be likely to succeed, or would be too
dangerous to use. The application must also include a
complete statement of all other applications that have
been made for electronic surveillance involving the
persons, facilities, or premises.
297. The courts order may authorize the interception
for no more than 30 days. The court, however, may grant
extensions of the order if the government files an
application justifying the extension. 18 U.S.C.
2518(5). In addition, the judge issuing the order and
the Department of Justice are required to report to the
Administrative Office of U.S. Courts on each
court-ordered electronic surveillance and the number of
arrests, suppression orders, and convictions that
resulted from them. 18 U.S.C. 2519.
298. There is an exception to the requirement of
prior judicial approval where there is an emergency
involving immediate danger of death or serious bodily
injury or conspiratorial activities that threaten
national security or are characteristic of organized
crime, and there is insufficient time to obtain a prior
court order. 18 U.S.C. 2518(7). When electronic
surveillance is utilized in these emergency instances,
the government must obtain a court order within 48
hours.
299. During the period of surveillance the agents are
under a continuing duty to minimize - that is, to not
record or overhear conversations that are not related to
the crimes or persons for which the surveillance order
was obtained. The recordings must also be sealed in a
manner that will protect them from tampering. The
government is expressly limited in the purposes for
which, and to whom, it may disclose those
communications. Section 223 of the USA PATRIOT Act
provided for civil liability for unauthorized
disclosures and provided that a person aggrieved by
certain willful violation may commence an action for
money damages against the United States. It also
provides for the initiation of administrative
proceedings.
300. Title III predated the use of video surveillance
and was passed in the wake of two Supreme Court
decisions that addressed non-consensual interception of
oral communications. Moreover, in 1968, when Title III
was enacted, video cameras were too bulky and too noisy
to be effective as surreptitious recording devices, and
thus were not considered when the electronic
surveillance statute was enacted. For both these
reasons, the statute did not address the use of
electronic video interception for gathering non-aural
evidence, and Congress has not passed subsequent
legislation addressing the issue. However, the federal
appellate courts that have considered the issue all
agree that the government may conduct video
surveillance. Because interception of visual, non-verbal
conduct is not regulated by statute, the courts analyze
it under the requirements of the Constitution. As long
as the interception is conducted in a manner consistent
with the protections provided by the Fourth Amendment,
the courts will permit its use. See, e.g.,
United States v. Falls, 34 F.3d. 674 (8th Cir.
1994); United States v. Koyomejian, 970 F.2d 536
(9th Cir. 1992) (en banc); United States v.
Mesa-Rincon, 911 F.2d 1433 (10th Cir. 1990);
United States v. Villegas, 899 F.2d 1324 (2d Cir.
1990); United States v. Cuevas-Sanchez, 821 F.2d
248 (5th Cir. 1987); United States v. Biasucci,
786 F.2d 504 (2d Cir. 1985), cert. denied,
479 U.S. 827 (1986); United States v. Torres, 751
F.2d 875 (7th Cir. 1984), cert. denied,
470 U.S. 1087 (1985).
301. Congress enacted the Electronic Communications
Privacy Act ("ECPA") in 11986 to address, among other
matters, (i) access to stored wire and electronic
communications and transactional records and (ii) the
use of pen registers and trap and trace devices. (See
Titles II and III of ECPA, Pub. L. No. 99-508, 100 Stat.
1848.) Title II of ECPA generally prohibits unauthorized
access to or disclosure of stored wire and electronic
communications, absent certain statutory exceptions.
Title II of ECPA also provides for legal process that
law enforcement may use to obtain such stored
communications and transactional records. The pen
register and trap and trace provisions of ECPA prohibit
the installation or use of a pen register or trap and
trace device, except as may be provided for in the
statue. Except in narrow, specified emergencies, law
enforcement may not install a pen register or a trap and
trace device without a prior court order.
302. Under the federal statutes, communications can
be acquired if one of the parties to the communication
has given prior consent to their acquisition. 18 U.S.C.
2511(2)(c), 2701(c)(2), 3123(b)(3) (2004).
Similarly, the Fourth Amendment's protection of one's
reasonable expectation of privacy does not require that
the government obtain a warrant for a consensual
interception, i.e. where one of the parties consents. In
a case where an undercover agent wore a recording device
concealed on his person, the Supreme Court explained:
[The] case involves no "eavesdropping" whatever in
any proper sense of that term. The government did not
use an electronic device to listen in on conversations
it could not otherwise have heard. Instead, the device
was used only to obtain the most reliable evidence
possible of a conversation in which the government's own
agent was a participant and which that agent was fully
entitled to disclose. And the device was not planted by
means of an unlawful physical invasion of [the
suspect's] premises under circumstances which would
violate the Fourth Amendment. It was carried in and out
by an undercover agent who was there with [the
suspect's] assent, and it neither saw nor heard more
than the agent himself. See Lopez v. United
States, 373 U.S. 427, 439 (1963).
303. Though federal judges need not authorize
interception orders where one party to the conversation
has consented to the electronic eavesdropping, the U.S.
Department of Justice has adopted certain written
guidelines for federal prosecutors. These guidelines are
set forth in the Attorney Generals Memorandum of May
30, 2002, which states:
304. When a communicating party consents to the
monitoring of his or her oral communications, the
monitoring device may be concealed on his or her person,
in personal effects, or in a fixed location. Each
department and agency engaging in such consensual
monitoring must ensure that the consenting party will be
present at all times when the device is operating. In
addition, each department and agency must ensure: (1)
that no agent or person cooperating with the department
or agency trespasses while installing a device in a
fixed location, unless that agent or person is acting
pursuant to a court order that authorizes the entry
and/or trespass, and (2) that as long as the device is
installed in the fixed location, the premises remain
under the control of the government or of the consenting
party. See United States v. Yonn, 702 F.2d
1341, 1347 (11th Cir.), cert. denied, 464
U.S. 917 (1983) (rejecting the First Circuits holding
in United States v. Padilla, 520 F.2d 526 (1st
Cir. 1975), and approving use of fixed monitoring
devices that are activated only when the consenting
party is present). See United States v.
Shabazz, 883 F. Supp. 422 (D. Minn. 1995). The same
rule applies to consensual videotaping.
305. Another area of note regarding technology and
privacy is individuals' privacy with respect to
information maintained on computer databases. In
general, individuals are entitled to privacy by the
Privacy Act, 5 U.S.C. §
552(a). The Privacy Act generally bars federal agencies
from using or disclosing information collected for one
purpose for a different purpose, unless the use or
disclosure falls within one of the specifically
enumerated exceptions in the Act. The Computer Matching
and Privacy Protection Act of 1988 specifically
addresses the use by federal agencies of computer data.
The Act regulates the computer matching of federal data
for federal benefits eligibility or recouping delinquent
debts. The government may not take adverse action based
on such computer checks without giving individuals an
opportunity to respond. Three other federal laws that
protect information commonly maintained on computer
database are the Fair Credit Reporting Act (15 U.S.C. §§1681-81(v)),
the Video Privacy Protection Act (18 U.S.C. §
2710), and the Right to Financial Privacy Act (12
U.S.C. §§
3401-22). The first regulates the distribution and use
of credit information by credit agencies. The second
prevents the disclosure and sale of customers'
video-rental records without the customers' consent. The
last sets procedures regarding when federal agencies may
review customers' bank records.
306. A number of federal statutes, in addition to
those described above, protect information commonly
maintained in computer databases. These include the Fair
Credit Reporting Act (15 U.S.C. §§1681-1681(v)),
which regulates the distribution and use of credit
information by credit agencies; the Video Privacy
Protection Act (18 U.S.C. §
2710), which addresses the disclosure and sale of
customer records regarding video rentals; the Right to
Financial Privacy Act (12 U.S.C. §
3401-3422), which sets procedures regarding access to
customers bank records by the federal government; the
Privacy Protection Act (42 U.S.C. §2000aa-2000aa-12),
which provides special procedures for government
searches or seizures of the press and other publishers;
title V of the Gramm-Leach-Bliley Act (Pub. L. No.
106-102, 113 Stat. 1338), which addresses the protection
and disclosure of nonpublic customer information by
financial institutions; and provisions of the Health
Insurance Portability and Accountability Act (42
U.S.C. §§
1320d-1320d-8), which provides for the creation of
protections regarding the privacy of individually
identifiable health information.
307. With respect to aliens, a number of laws protect
the confidentiality of certain information, with limited
exceptions, including asylum applications (8 C.F.R.
208.6 and 1208.6), information relating to battered
spouses and children seeking immigration relief (8
U.S.C. §
1186A(c)(4)), and alien registration and fingerprint
records (8 U.S.C. §
1304(b)).
308. USA PATRIOT Act. In the wake of the
tragedy of 11 September, 2001, Congress passed the USA
PATRIOT Act primarily to provide federal prosecutors and
investigators with the critical tools needed to fight
and win the war against terrorism. The USA PATRIOT Act
principally did four things. First, it removed the legal
barriers that prevented the law enforcement and
intelligence communities from sharing information. By
bringing down "the wall" separating law enforcement and
intelligence officials, the USA PATRIOT Act has yielded
extraordinary dividends, such as by enabling the
Department of Justice to dismantle terror cells in such
places as Oregon, New York, and Virginia. Second, it
updated federal anti-terrorism and criminal laws to
bring them up to date with the modern technologies
actually used by terrorists, so that the United States
no longer had to fight a digital-age battle with legal
authorities left over from the era of rotary telephones.
Third, it provided terrorism investigators with
important tools that were previously available in
organized crime and drug trafficking investigations. For
example, law enforcement had long used multi-point, or
"roving," wiretaps to investigate non-terrorism crimes,
such as drug offenses. Now, federal agents are allowed
to use multi-point wiretaps, with court approval, to
investigate sophisticated international terrorists who
are trained to evade detection. Fourth, the USA PATRIOT
Act increased the federal criminal penalties for those
who commit terrorist crimes and made it easier to
prosecute those responsible for funneling money and
providing material support to terrorists.
309. The USA PATRIOT Act has been the subject of a
vigorous public debate, which has focused on a handful
of the Act's many provisions. As noted above, the Act
authorizes multi-point wiretap surveillance in foreign
intelligence investigations. This authority is directed
to the problem of terrorists who seek to avoid
surveillance by frequently changing telephones, and
allows foreign intelligence investigators in certain
specified circumstances to obtain from a federal court a
wiretap order that permits surveillance of a specified
person rather than a specific phone. This authority has
been available in criminal investigations for years, but
only became available in foreign intelligence
investigations upon enactment of the USA PATRIOT Act. It
allows surveillance to continue uninterrupted even
though the terrorist changes phones. This authority has
been an essential tool in conducting sensitive national
security-related surveillance. There have been no
verified abuses of this authority.
310. Another provision of the USA PATRIOT Act created a
nationally uniform process and standard for obtaining
delayed-notice search warrants, which have been
available for decades and were common long before the
USA PATRIOT Act was enacted. Like all criminal search
warrants, a delayed-notice search warrant is issued by a
federal judge only upon a showing that there is probable
cause to believe that the property sought or seized
constitutes evidence of a criminal offense. A
delayed-notice warrant differs from an ordinary search
warrant only in that the judge authorizes the officers
executing the warrant to wait for a limited period of
time before notifying the subject of the search because
immediate notice would have an "adverse result." In
passing the USA PATRIOT Act, Congress recognized that
delayed-notice search warrants are a vital aspect of the
Department of Justice's strategy of detecting and
incapacitating terrorists, drug dealers, and other
criminals before they can harm U.S. citizens. A
delayed-notice search warrant is an invaluable though
rarely used tool; delayed-notice has been used in less
than 0.2 percent of all federal warrants authorized in
the period of time between the enactment of the USA
PATRIOT Act and 31 January, 2005. There have been no
verified abuses of this authority.
311. A third provision of the USA PATRIOT Act authorizes
federal prosecutors to issue subpoenas for records about
an individual that are held by third parties. It is
important to understand that federal prosecutors, by
obtaining grand-jury subpoenas, have long been able to
obtain business records, of exactly the sorts that are
the subject of this provision, in ordinary criminal
investigations without the involvement of a judge. The
USA PATRIOT Act simply extended a similar authority to
investigators in international terrorism and espionage
investigations, and in addition imposed a requirement
that those investigators obtain prior judicial approval.
Moreover, because the provision at issue explicitly
states that an investigation cannot be conducted of a
United States person based solely upon activities
protected by the First Amendment of the Constitution,
investigators are expressly prohibited from
investigating United States persons solely because of,
for example, their library habits or the websites they
visit. As the Attorney General testified before
Congress, between the passage of the USA PATRIOT Act and
30 March, 2005, this business records provision was not
used a single time to request library or bookstore
records. However, we know from experience that
terrorists and spies do use libraries to further their
hostile intentions, and we cannot afford to make
libraries safe havens. There have been no verified
abuses of this authority.
312. The USA PATRIOT Act has helped to protect Americans
from terrorist attacks while at the same time
safeguarding their civil rights and civil liberties,
such as by preserving the important role of judicial and
congressional oversight. Many key provisions of the USA
PATRIOT Act are scheduled to expire at the end of 2005,
and Congress is considering reauthorization of those
provisions. The House passed a reauthorization bill on
21 July, 2005, by a vote of 257-171, and the Senate
passed a similar bill by unanimous consent on July 29,
2005. The next step in the process will be a conference
between the two houses to resolve differences in the two
bills. These bills have followed extensive debate and
oversight by Congress as it considered whether to renew
these critical intelligence and law enforcement tools.
For example, the Attorney General has testified in front
of the Senate and House Judiciary Committees and Senate
Select Committee on Intelligence on the subject, and in
total, the Department of Justice has provided 32
witnesses at 18 congressional hearings on the USA
PATRIOT Act in 2005. In his congressional testimony, the
Attorney General urged that all 16 sun-setting
provisions should be reauthorized without any additional
sunsets and opposed any weakening of the Act. As the
extensive hearings and public debates have confirmed,
there have been no verified abuses of the USA PATRIOT
Act provisions.
Article 18 - Freedom of thought, conscience, and
religion
313. There have been a number of notable changes in United States law
to the protections of religious freedom outlined in
paragraphs 545-579 of the Initial Report.
314. As noted in the Initial Report, in response to
the ruling by the United States Supreme Court in
Employment Div., Dept of Human Services of Oregon v.
Smith, 494 U.S. 872 (1990), that religious believers
may not obtain exemptions to religion-neutral laws of
general applicability that infringe on their religious
practices, Congress enacted the Religious Freedom
Restoration Act of 1993("RFRA"). 42 U.S.C.
2000(b)(b)(2004). This law provided that government
action that substantially burdened religious exercise
was invalid unless it was justified by a compelling
government interest and was the least restrictive way to
achieve that interest. In City of Boerne v. Flores,
521 U.S. 507 (1997), the Supreme Court struck down RFRA
as applied to the states on the grounds that it exceeded
Congresss power over states. RFRA continues to apply to
actions by the federal government.
315. There have been two major developments in
response to the invalidation of RFRA. First, many states
have adopted their own versions of RFRA to ensure that
religious exercise is not burdened by state action.
Second, the Congress enacted the Religious Land Use and
Institutionalized Persons Act of 2000 (RLUIPA), 114
Stat. 804, which imposes, among other things, a
requirement on states that in most circumstances burdens
on religion through land use regulation and burdens on
the religious exercise of prisoners must, as with RFRA,
be justified by a compelling government interest and
through the least restrictive means. The Supreme Court
upheld a constitutional challenge to the prisoner-rights
portion of RLUIPA in Cutter v. Wilkinson, 125 S.
Ct. 2113 (2005), finding that the laws protection of
inmate religious rights did not violate the
Establishment Clause. In Cutter, the Court
emphasized that there is a long tradition in the United
States of accommodating religious practice through laws
such as RLUIPA, and the fact that a law may provide
exceptions to general rules for religious reasons but
not other reasons does not render it invalid.
316. As discussed above, there have been important
developments in the area of religion in schools. The
Supreme Court has re-emphasized that state-sponsored
religious speech in public schools is severely
restricted, while at the same time religious speech by
students at schools is strongly protected. On the issue
of funding, which was discussed at great length in the
Initial Report, the Supreme Court has moved toward two
principles. First, where an educational benefit such as
a scholarship is provided directly to a student, and the
student is then free to use it toward education at the
school of his choice, whether public or private, secular
or religious, the non-Establishment principle of the
Constitution is not violated. Second, where aid is given
directly to a school, it will be upheld if the aid is
secular in nature, is distributed in a neutral manner
without regard to religion, and there is no risk of
substantial diversion of the aid to religious purposes.
317. Consistent with the principles laid out in the
school aid cases, the Congress has enacted numerous
provisions permitting federal funding of religiously
affiliated charities. For example, Section 104 of the
Personal Responsibility and Work Opportunity
Reconciliation Act of 1996, Pub. L. No. 104-193, 110
Stat. 2105 (1996), permits religious organizations to
participate in certain welfare grant programs. If there
is a system where beneficiaries receive a voucher to
redeem at any of a number of service providers, the
statute provides that religious organizations must be
permitted to participate, consistent with the
Establishment Clause. If there is a direct grant program
where funds are given directly by the state to
providers, the statute provides that religious providers
must be permitted to participate, provided that they not
discriminate against beneficiaries or require
beneficiaries to participate in any religious
activities, and that beneficiaries have a non-religious
provider available to them if they so chose. Similarly,
the President has, through issuance of several executive
orders, created an office of Faith-based and Community
Initiatives in the White House and within numerous
agencies, to ensure that charities are not excluded from
programs solely on the grounds that they are religious.
318. The law regarding government-sponsored religious
displays, as discussed paragraph 572 in the Initial
Report, remains fact-specific. In McCreary County v.
American Civil Liberties Union of Kentucky, 125 S.
Ct. 2722 (2005), the Supreme Court held that the display
of a framed copy of the Ten Commandments in the hallway
of a courthouse violated the Establishment Clause,
largely because of the religious purpose of the
government officials who put it up. The same day, in
Van Orden v. Perry, 125 S. Ct. 2854 (2005), the
Court upheld a stone monument of the Ten Commandments
that had stood on the grounds of the Texas state capitol
for more than forty years and which had been donated by
a civic group.
319. Charitable status for taxation and
solicitation. It bears emphasis that there is
no requirement in the United States for religious
organizations to register with any government agency in
order to operate, 26 U.S.C. 508(c)(1)(A), and regulation
of their activities by the government is restricted by
the Constitution. For example, in Watchtower Bible
and Tract Society v. Village of Stratton, 536 U.S.
150 (2002), the Supreme Court held that a municipality
could not require religious organizations engaging in
door-to-door solicitation to register with the
municipality.
320. Similar autonomy is granted in the operation of
the tax code. To obtain the federal tax benefits
outlined in paragraphs 555 through 557 of the initial
report, a church that meets the criteria for a public
charity is entitled to operate as a tax-favored charity
automatically, without being required to apply for such
recognition. 26 U.S.C. 508(c)(1)(A).
321. As an additional accommodation for religious
institutions, Congress has also imposed strict
limitations on the abilities of the IRS to conduct tax
inquiries and examinations of religious institutions. 26
U.S.C. 7611. These limitations extend to any
institution claiming to be a church, whether or not
officially recognized by the IRS. A tax inquiry of a
church may only be initiated when the Director of Exempt
Organizations, Examinations reasonably believes that the
religious organization: (a) may not qualify for the
exemption; or, (b) may not be paying tax on an unrelated
business or unrelated taxable activity. Id. Even
after the reasonable belief has been established, the
IRS must provide the church with an opportunity to
resolve the concerns before undertaking an official
inspection of the churchs record. Id.
Furthermore, the IRS cannot conduct a subsequent tax
inquiry/examination of previously audited religious
institution for a five-year period unless the previous
examination resulted in revocation, notice of deficiency
of assessment, or a request for a significant change in
church operations, including a significant change in
accounting practices. 26 U.S.C. 7611(f)(1).
322. When religious institutions have been found to
be operating for the financial benefit of an individual,
or engaging in lobbying, or political activities, the
IRS may revoke their tax-exempt status. See,
e.g., Branch Ministries v. Rossotti, 211 F.3d
137, 143-44 (D.C. Cir. 2000) (upholding revocation of
tax-exempt status of church that intervened in a
political campaign). Furthermore, the United States
Supreme Court has held that "Congress has not violated
[an organizations] First Amendment rights by declining
to subsidize its First Amendment activities." See,
Regan v. Taxation With Representation, 461 U.S.
540, 548 (1983) (upholding IRS denial of tax exemption
status to a nonprofit organization because of
organizations substantial attempts to influence
legislation).
323. Establishment. The Religious Liberty and
Charitable Donation Protection Act of 1998, Pub. L. No.
105-183, 112 Stat. 517 (1998) (codified in scattered
sections of 11 U.S.C.), amends federal bankruptcy law to
state that a transfer of a charitable contribution (up
to 15% of the debtor's gross income in the relevant
year) to a qualified religious or charitable institution
is not considered "fraudulent" under the Bankruptcy Law,
thus prohibiting a bankruptcy trustee from recouping
such a contribution from a recipient institution under
normal rules, which allow recoupment if the transfer is
made within one year of when the debtor declares
bankruptcy and at a time when the debtor is insolvent.
324. Section 4454 of the Balanced Budget Act of 1997,
Pub. L. No. 105-33, 111 Stat. 251, 426-432 (Aug. 5,
1997), allows individuals who have sincere religious
objections to receiving medical care to obtain Medicare
and Medicaid reimbursement programs for non-medical
health care provided in religious non-medical health
care institutions. This statute authorizes payment for
non-medical health care services that would ordinarily
be provided in a hospital or extended-care skilled
nursing facility, and permits payment for such services
if the individual has a condition such that he or she
would qualify for benefits for treatment in a hospital
or extended-care skilled nursing facility.
325. The International Religious Freedom Act of 1998,
Pub. L. No. 105-292, 112 Stat. 2787 (1998) (codified in
scattered sections of 22 U.S.C.) states that the United
States' policy is to promote, and to assist other
governments in the promotion of, religious freedom;
requires the President to annually designate countries
of particular concern for religious freedom; and amends
the Immigration and Nationality Act, 8 U.S.C.
1182(a)(2), to make foreign government officials who
have committed severe violations of religious freedom
ineligible to receive visas or admission into the United
States.
326. The Church Arson Prevention Act of 1996, Pub. L.
No. 105-155, 110 Stat. 1392 (1996) (amending 18 U.S.C.
247 to clarify that federal jurisdiction exists over
offenses relating to damage to religious real property).
Article 19 - Freedom of opinion and expression
327. The First Amendment to the United States Constitution provides
that "Congress shall make no law abridging the freedom
of speech." Paragraphs 580 588 of the Initial Report
describe how freedom of opinion and expression are
zealously guarded in the United States, as well as the
limitations on freedom of expression.
328. Freedom of speech also encompasses certain
rights to seek and receive information. The most
important means by which these rights are promoted is by
the First Amendment's special concern for freedom of the
press, which is protected from prior restraint (that is,
censorship in advance of publication) in the absence of
proof of direct, immediate, and irreparable and
substantial damage to the public interest. See
New York Times, Inc. v. United States, 403 U.S. 713
(1971). The First Amendment protects the publication of
truthful information about matters of public importance,
even where the disclosure of the information affects
significant privacy interests, as long as the person who
discloses it did not violate the law in obtaining the
information. See, e.g., Florida Star v.
B.J.F., 491 U.S. 524 (1989); Bartnicki v. Vopper,
532 U.S. 514 (2001). In addition to publishing
information, the press, and the public as a whole, have
been held to have a constitutional right to gather
information concerning matters of public significance in
certain circumstances. For example, the public generally
has a right of access to observe criminal trials, since
such access is viewed as instrumental to the
effectuation of the rights to speak and publish
concerning the events at trial. This right does not
entail a general constitutional obligation on the part
of the government to disclose information in its own
possession. See, e.g., Houchins v. KQED, Inc.,
438 U.S. 1 (1978); Los Angeles Police Dept. v. United
Reporting Pub. Corp., 428 U.S. 32 (1999). However,
the First Amendment is supplemented by a number of laws
that promote access to government, such as the Freedom
of Information Act, 5 U.S.C. 552, the Government in
the Sunshine Act, 5 U.S.C. 552b, and the Federal
Advisory Committee Act, 5 U.S.C. App. 2.
329. Under U.S. law and practice, government is
accorded broad scope to shape the content of official
utterances and is not as a general matter compelled to
speak on behalf of those with whom it disagrees. The
courts have held, in the context of government or
government assisted programs, that the government may
limit the extent to which such programs provide access
to information for the beneficiaries. Thus, in Rust
v. Sullivan, 500 U.S. 173 (1991), the U.S. Supreme
Court upheld government regulations proscribing abortion
counseling in programs receiving federal funding, but
noted that the recipient of those funds could still
provide counseling and related services through separate
and independent programs. The Court noted that its
holding merely allowed the government to refrain from
funding speech activity that it did not support, and did
not suggest that the government could condition or
restrict speech in areas that have been traditionally
open to the public for free expression, such as public
parks or universities. Along similar lines, the
government, through the National Endowment for the Arts,
can consider factors such as "decency and respect" in
deciding whether to help fund the work of controversial
artists. See National Endowment of the Arts v.
Finley, 524 U.S. 569 (1998). The government may not,
however, impose viewpoint-specific restrictions within
the context of a government-created public forum for
speech, such as on a student publication funded by a
state university. Rosenberger v. Univ. of Virginia,
515 U.S. 819 (1995).
Article 20 - Prohibition of propaganda relating to
war or racial, national, or religious hatred
330. The following U.S. reservation to Article 20
remains in effect:
That Article 20 does not authorize or require legislation or other
action by the United States that would restrict the
right of free speech and association protected by the
Constitution and laws of the United States.
331. The reasons for this reservation, as discussed
in paragraphs 596 598 of the Initial Report, remain
unchanged.
332. Hate crimes. As reported in paragraphs
599 - 606 of the Initial Report, the Civil Rights
Division of the U.S. Department of Justice enforces
several criminal statutes which prohibit acts of
violence or intimidation motivated by racial, ethnic, or
religious hatred and directed against participation in
certain activities.
333. Following are several examples of recent cases:
A self-described "Luciferian," pled guilty to
setting a total of twenty nine fires in eight states
throughout the United States. The defendant was
sentenced to life in prison without parole for his
guilty pleas to setting five church fires in Georgia,
including a fire at the New Salem United Methodist
Church in which a volunteer firefighter was killed while
on duty. See United States v. Ballinger,
153 F. Supp. 2d 1361 (N.D. Ga. 2001).
A defendant was convicted of violating the Church
Arson Prevention Act for making telephonic bomb threats
to three synagogues in Minnesota. The defendant made
religiously threatening and terroristic threats on the
voice mail systems of the Bet Shalom Temple, Mount Zion
Temple, and Bais Yaakov School. The defendant was
sentenced to 16 months in prison. See, United
States v. Corum, No. 01-236 2003 U.S. Dist. LEXIS
7726 (D. Minn., Apr. 17, 2003).
334. Incidents involving violent acts of racial and
ethnic hatred are a high priority for prosecution.
During the last five years, nearly 300 defendants were
charged federally in connection with crimes such as
cross-burnings, arson, vandalism, shootings and assault
for interfering with various federally protected rights
(such as housing, employment, education, and public
accommodations) of Black, Hispanic, Asian, Native
American, and Jewish victims. Since 1993, virtually all
defendants charged in these cases have been convicted.
335. Several examples of recent cases include:
Six adults and one juvenile in Wisconsin conspired
to injure and intimidate Hmong people living within
their communities. Armed with shotguns, they planned to
detonate an explosive to lure the Asians out of their
Two Rivers, Wisconsin home and shoot them. They
detonated an explosive under a van parked in front of a
Hmong family's home, but fled when a police car
patrolling the area appeared. Two days later, three of
the same defendants set fire to the front porch of
another Asian family's home in Manitowoc, Wisconsin,
using gasoline to accelerate the fire as the family
slept. Five children were pulled through a bedroom
window to safety by their father while a teenager and
the mother escaped from the basement out a back door.
The fire destroyed the house. All seven defendants
entered guilty pleas to various federal crimes in
connection with these incidents. The defendants were
sentenced to terms of incarceration ranging from 24
months to 19 years. United States v. Franz and
United States v. LeBarge.
A defendant was convicted of interfering with
housing rights for assaulting and vandalizing the
property of African-American and Hispanic residents of a
Bessemer City, North Carolina neighborhood because he
believed that only Whites should live there. The
defendant was sentenced to 110 months in prison.
United States v. Nichols, 2005 U.S. App. LEXIS 19802
(4th Cir. 2005).
Post-September 11 Efforts to Counter Crimes Against
Muslims.
336. After the September 11 attacks on the World Trade
Center and the Pentagon, the United States saw a rise in
bias crimes against Muslims and Arabs, as well as those
wrongly perceived to be Muslim and Arab, including Sikhs
and South Asians. These bias crimes included attacks on
individuals ranging from Internet and telephone threats
and assault to murder, as well as attacks on mosques and
businesses ranging from graffiti and vandalism to arson.
337. The Department of Justice has put a priority on
investigating and prosecuting these cases. The
Department has investigated more than 650 such crimes,
resulting in more than 150 state and local prosecutions,
as well as the prosecution of 27 defendants on federal
civil rights charges.
338. Several experienced attorneys in the Civil
Rights Divisions Criminal Section have been tasked to
review all new allegations and to participate in or
monitor those investigations that are opened to ensure
uniform decision-making in the initiation of federal
investigations and prosecutions and to optimize resource
allocation. A few examples of federal prosecutions are
as follows:
- Two defendants in the Los Angeles, California
area were charged with conspiring to fire-bomb the
King Fahd mosque, the office of the Muslim Public
Affairs Council, and the district office of United
States Representative Darrell Issa. One died from
self-inflicted injury in prison. The other pled
guilty to certain federal charges, and is awaiting
sentencing. United States v. Krugel.
A defendant in Seattle, Washington pled guilty for shooting at two
Islamic worshipers and for dousing cars with gasoline in
an attempt to ignite them and cause damage to the
Islamic Idriss Mosque. He was sentenced to 78 months in
prison. United States v. Cunningham.
The president of the Arab-American Institute in
Washington, D.C. received a threatening message on his
voice mail. After pleading guilty, the defendant, who
placed the call from Boston, was sentenced to 2 months
confinement and a $5,000 fine. United States v.
Rolnik.
A defendant in Tallahassee, Florida, intentionally
crashed his truck into a mosque. He was convicted and
was sentenced to 27 months imprisonment. United
States v. Franklin.
A defendant in Detroit, Michigan, placed a
telephone call to a Pakistani family's home in that
city, leaving a threatening message on their voice mail.
He pled guilty and was sentenced to 10 months
incarceration. United States v. Bolen.
Article 21 - Freedom of assembly
339. The First Amendment to the United States
Constitution proscribes the making of any law abridging
"the right of people peaceably to assemble". This right
has been interpreted quite broadly, as discussed in
paragraphs 607 612 of the Initial Report.
Article 22 - Freedom of association
340. United States Constitution. Although the
freedom of association is not specifically mentioned in
the United States Constitution, it has been found to be
implicit in the rights of assembly, speech, and
expression. See NAACP v. Claiborne Hardware
Co., 458 U.S. 898 (1982); Healey v. James,
408 U.S. 169 (1972). Taken together, these provisions of
the First, Fifth and Fourteenth Amendments guarantee
freedom of assembly in all contexts, including the right
of workers to establish and join organizations of their
own choosing, without previous authorization by or
interference from either the federal government or the
state governments. See, Brotherhood of
Railroad Trainmen v. Virginia, 377 U.S. 1 (1964);
United Mine Workers v. Illinois State Bar
Assn., 389 U.S. 217 (1967). Freedom of assembly
continues to be practiced in the United States, as
described in paragraphs 613 654 of the Initial Report.
341. The right to associate for purposes of
expressive activity receives heightened protection. This
right, termed the right of "expressive association,"
encompasses both the expression of ideas within a group
among its members, and expression by the group to the
wider public. The first category is exemplified by
Boy Scouts v. Dale, 530 U.S. 640 (2000), in which
the Supreme Court held that the Boy Scouts could exclude
a homosexual man from a position as assistant
scoutmaster, despite a state law barring such
discrimination, on the grounds that the Boy Scouts is a
group dedicated to instilling certain morals and values
in boys, and that homosexuality is contrary to those
morals and values. An example of the second type of case
is Hurley v. Irish-American Gay, Lesbian and Bisexual
Group of Boston, 515 U.S. 557 (1995), in which the
Supreme Court held that a private group that sponsored
an annual Saint Patricks Day parade could not be
required by a state to allow an Irish-American
homosexual group to march in the parade. In each case,
the ability to exclude those with views at odds with the
views of the group was deemed fundamental to the group's
ability to carry out its expressive mission.
342. In a recent decision, the Supreme Court decided
that, because of the impossibility of distinguishing
between a state universitys ideological and educational
activities, state universities can use mandatory student
fees to fund organizations whose positions are opposed
by particular students as long as the funding decisions
are made in a viewpoint-neutral manner. Univ. of
Wisconsin v. Southworth, 529 U.S. 217 (2000).
343. Labor associations. As stated in the
Initial Report, the provisions of the National Labor
Relations Act apply generally, with specified
exceptions, to all employers engaged in an industry
affecting interstate commerce (the vast majority of
employers), and thus, to their employees, and that,
generally, it applies to employees regardless of their
nationality or legal status in the United States.
However, in 2002, in Hoffman Plastic Compounds Inc.
v. National Labor Relations Board, 535 U.S. 137
(2002), the Supreme Court limited one remedy under U.S.
labor law on the ground that an illegal immigrant may
not be awarded back pay for hours not worked and for a
job obtained in the first instance by a criminal fraud.
344. Trade union structure and membership. The
American Federation of Labor-Congress of Industrial
Organizations (AFL-CIO) reported that it comprised 66
national union affiliates as of July 2002. There are
approximately 70 other national unions that are not
affiliated with the AFL-CIO. There are approximately
29,000 unions at the local, intermediate body and
national levels that represent private sector employees
and federal government employees.
345. The following 2004 data, reported in a 27
January, 2005 U.S. Department of Labor, Bureau of Labor
Statistics news release shows:
15,472,000 wage and salary workers in the U.S.
(12.5% of all employed wage and salary workers) belonged
to labor unions; of those, 7,267,000 were employed in
government, and 8,205,000 were employed in private
industry.
Among private industry groups, manufacturing had
the largest number of union members (2,036,000);
followed by education and health services (1,405,000);
transportation and public utilities (1,218,000);
construction (1,110,000); wholesale and retail trade
(1,028,000); leisure and hospitality (319,000);
professional and business services (246,000); mining
(57,000); finance (56,000); and agriculture (23,000).
36.4 percent of government (federal, state and
local) employees were union members, as compared to some
7.9 percent of wage and salary workers in private
industry.
The percentage of union members among full-time
workers is 13.9 percent and 6.4 percent for part-time
workers; the percentage of union membership among men
was 13.8 percent, and 11.1 percent for women; Blacks
(15.1%); Whites (12.2%) and Hispanics (10.1%).
346. In addition to the estimated 15.5 million wage
and salary employees who belonged to a union in 2004,
there were about 1.6 million workers whose jobs were
covered by a union (or employee association) contract,
but who were not union members.
Article 23 - Protection of the family
347. Right to Marry. United States law has long
recognized the importance of marriage as a social
institution which is favored in law and society.
Marriage has been described as an institution which is
the foundation of society "without which there would be
neither civilization nor progress". See
Maynard v. Hill, 125 U.S. 190, 211 (1888).
348. As described in paragraphs 658 673 of the Initial Report,
marriage has traditionally been defined in the United
States as the status of relation of a man and a woman
who have been legally united as husband and wife.
Marriage is contractual in nature, in that it creates
certain rights and responsibilities between the parties
involved. However, the contract of marriage is unique in
the eyes of the law. As one court stated:
While we may speak of marriage as a civil contract,
yet that is a narrow view of it. The consensus of
opinion in civilized nations is that marriage is
something more than a dry contract. It is a contract
different from all others. For instance: only a court
can dissolve it. It may not be rescinded at will like
other contracts. Only one such can exist at a time. It
may not exist between near blood kin. It legitimizes
children. It touches the laws of inheritance. It affects
title to real estate. It provides for the perpetuity of
the race. It makes a hearthstone, a home, a family. It
marks the line between the moral of the barnyard and the
morals of civilized men, between reasoning affection and
animal lust. In fine, it rises to the dignity of a
status in which society, morals, religion, reason and
the state itself have a live and large interest. See
Bishop v. Brittain Inv. Co., 129 S.W. 668, 676
(Mo. 1910).
349. Same Sex Marriage. In 1996, Congress
passed and President Clinton signed the Defense of
Marriage Act ("DOMA"). The DOMA provides that, for
purposes of federal law, the word "marriage" means the
union of one man and one woman and the word "spouse"
means a person of the opposite sex. It also provides
that no state could be required to adopt another state's
law with respect to same-sex marriage. The only courts
to rule on the issue upheld the constitutionality of the
DOMA. See, e.g., Smelt v. County of
Orange, 274 F. Supp. 2d 861 (C.D. Cal. 2005); In
re Kandu, 315 B.R. 123 (W.D. Wash. 2004); see
also, Order Granting Motion to Dismiss,
Case No: 8:04-cv-1680-T-30-TBM (U.S. District Court for
the Middle District of Florida, Jan. 19, 2005).
350. In addition, the Federal Marriage Amendment ("FMA")
to the Constitution, which was supported by President
Bush, was introduced in Congress in 2004. The FMA states
that "marriage" consists only of the union of a man and
a woman and that the federal and state constitutions
shall not be construed to require marriage for any other
union. It failed to pass the Senate on a procedural vote
on 7 July, 2004, by 48-50 and failed in the House
227-186 on 30 September, 2004.
351. Same sex marriage has also been an issue at the
state level. In 2003, the Massachusetts Supreme Judicial
Court held that under the equality and liberty
guarantees of the Massachusetts constitution, the
marriage licensing statute limiting civil marriage to
heterosexual couples was unconstitutional because it was
not rationally related to a permissible legislative
purpose. Goodridge v. Dep't of Public Health, 798
N.E.2d 941 (Mass. 2003). State trial courts in
California, New York, and Washington have also found a
right to same-sex marriage under their state
constitutions, but those cases are on appeal. In
contrast, an intermediate appeals court in New Jersey
found that the state constitution did not confer a right
to same-sex marriage, Lewis v. Harris,
A-2244-03T5 (June 14, 2005), a decision that has been
appealed to the state supreme court. Further, the
Supreme Court of Oregon, invalidated marriage licenses
to homosexual couples that had been granted by one
county. Li v. Oregon, No. CC 0403-03057, CA
A124877, SC S51612, April 14, 2005.
352. As of 2005, seventeen states have constitutional
amendments defining marriage as solely between a man and
a woman, and twenty-seven other states define marriage
as a union between a man and a woman by statute. Eleven
of the constitutional amendments were enacted in
November 2004 as a result of the Goodrich case noted
above. In addition, voters in five other states will
vote on amendments in 2005 and 2006 that are likely to
ban same-sex marriage.
353. In addition to these measures, California, New
Jersey, Vermont, and Connecticut have adopted statewide
domestic partnership or civil union laws providing
virtually the same benefits as marriage to homosexual
couples.
Procedures for marriage
354. Blood tests. While many states require a
blood test as one of the requirements that must be met
before obtaining a marriage license, recently, several
states have considered abandoning this requirement. In
states that do require testing, the statutes generally
require that in order to obtain the marriage license,
the parties must be free of certain sexually-transmitted
or other communicable diseases. Failure to comply with
this requirement generally does not invalidate the
marriage, although it may subject the parties and the
issuing authority to penalties.
355. Waiting periods. Most states require a
waiting period between the issuance of the license and
the performance of the actual wedding ceremony. However,
the length of the required waiting period varies widely
among the states. The length can range from 3 days to a
maximum of 30 days, with several states requiring no
waiting period. In states with a waiting period
requirement, failure to comply with the requirement
generally will not invalidate the marriage if it is the
only defect.
356. Common-law marriage. Common-law marriage
is a non-ceremonial or informal marriage by agreement,
entered into by a man and woman having capacity to
marry, ordinarily without compliance with statutory
formalities. Thirteen states and the District of
Columbia recognize common-law marriages entered within
their jurisdiction. In addition to capacity and an
agreement, most jurisdictions require some act of
consummation, such as cohabitation, to make the
common-law marriage valid. Some courts also require
proof that the parties held themselves out to the world
as husband and wife or that they were thought of as
husband and wife in the community in which they lived.
In those states that continue to recognize common-law
marriages, the marriage is considered just as valid as
those contracted in full compliance with the statutory
requirements.
357. Custody and visitation. A recent Supreme
Court case addressed the issue of the visitation rights
of grandparents. In Troxel v. Granville, 530 U.S.
57 (2000), the grandparents sought greater visitation
rights to their grandchild. The Washington Supreme Court
held that the Washington state statute, granting broad
grandparent visitation rights, "impermissibly infringed
on the mother's constitutional right to make major life
decisions for her child." In re Smith, 969 P.2d
21 (Wash. 1998). The United States Supreme Court
affirmed that decision and observed that "it cannot now
be doubted that the Due Process Clause of the Fourteenth
Amendment protects the fundamental right of parents to
make decisions concerning the care, custody, and control
of their children." See, Troxel, 530 U.S.
at 66.
358. Parental Child Abduction. Abduction of
children by their parents or guardians continues to be a
serious problem, particularly at the international
level. The United States is a State Party to the Hague
Convention on the Civil Aspects of International Child
Abduction, and has taken legislative steps to ensure
that the provisions of the Convention are binding in
U.S. courts.
359. Child support and enforcement of decrees.
In recognition of the need to improve child support
enforcement by the states both interstate and within
each state, the United States Congress passed in 1975
comprehensive legislation (Title IV-D of the Social
Security Act [IV-D Program] - 42 U.S.C. 651-55)
establishing a mandatory requirement for the states to
set up a state agency to locate obligors, establish
paternity, and enforce child support. The legislation
also established on the federal level an Office of Child
Support Enforcement in the Department of Health and
Human Services to regulate and evaluate the state
programs and to operate a federal Parent Locator
Service. The enforcement services under this program are
available to all children. Since 1975, Congress has
enacted a number of measures, notably in 1984, 1988 and
1996, to improve and strengthen the enforcement program
and to require the states to establish child support
guidelines, and to provide efficient enforcement
procedures such as liens, capture of tax refunds for
overdue support, automatic wage withholding, and direct
interstate wage withholding.
360. To improve on the Uniform Reciprocal Enforcement
of Support Act (URESA), because interstate enforcement
remained a major problem, the Commission on Interstate
Child Support and the Commissioners on Uniform State
Laws drafted a new enforcement system, the Uniform
Interstate Family Support Act (UIFSA). Importantly, the
Welfare Reform Act, signed by President Clinton,
required all states to enact UIFSA and it is currently
the law in every state and the District of Columbia
361. In spite of these legal safeguards and extensive
programs, however, it is clear that more needs to be
done to address the problem of interstate enforcement of
child support orders throughout the United States.
Article 24 - Protection of children
362. UN Optional Protocol to the Convention on the
Rights of the Child on Children in Armed Conflict.
On 19 June, 2002, the United States Senate gave its
advice and consent to ratification of the UN Optional
Protocol to the Convention on the Rights of the Child on
Children in Armed Conflict. The United States deposited
its instrument of ratification on 23 December, 2002. The
Protocol came into effect for the United States on 23
January, 2003.
363. UN Optional Protocol on the Sale of Children,
Child Prostitution, and Child Pornography. On 19
June, 2002, the United States Senate gave its advice and
consent to ratification of the UN Optional Protocol to
the Convention on the Rights of the Child on the Sale of
Children, Child Prostitution, and Child Pornography. The
United States deposited its instrument of ratification
on 23 December, 2002. The Protocol came into effect for
the United States on 23 January, 2003.
364. ILO Convention 182 on the Worst Forms of
Child Labor. On 5 November, 1999, the United States
Senate gave its advice and consent to ratify ILO
Convention 182 on the Worst Forms of Child Labor on the
grounds that the United States was in full compliance
with its provisions. (See Senate Resolution 145,
Cong.Rec. S14226-03 (1999) and Senate Treaty Document
106-5). The resolution contains the U.S. understandings
of the terms of the Convention. The President ratified
Convention 182 on 2 December, 1999, and it came into
effect for the United States on 2 December, 2000.
365. Children born outside of marriage. A child
born abroad and out of wedlock acquires at birth the
nationality of a citizen mother who meets a specified
residency requirement. 8 U.S.C. 1409(c) (2005).
However, when the father is the citizen-parent, one of
three steps must be taken before the child turns 18:
legitimization, a declaration of paternity under oath by
the father, or a court order of paternity. See,
8 U.S.C. 1409(a)(4)(2005).Tuan Anh Nguyen v.
INS, 533 U.S. 53(2001); Miller v. Albright,
523 U.S. 420 (1998).
366. Non-citizen children. School children in
the United States cannot be denied a free public
education on the basis of their immigration status.
See Plyler v. Doe, 457 U.S. 202 (1982).
367. Education. The Office for Civil Rights (OCR)
in the U.S. Department of Education is responsible for
enforcing federal civil rights laws that prohibit
discrimination on the basis of race, color, national
origin, sex, disability, and age by recipients of
federal financial assistance, as well as a law that
ensures equal access to public school facilities for the
Boy Scouts of America and certain other youth groups.
These civil rights laws represent a national commitment
to end discrimination in education programs. Because
most educational institutions receive some type of
federal financial assistance, these laws apply
throughout the nation. Coverage of these civil rights
laws extends to nearly 15,000 school districts; more
than 4,000 colleges and universities; about 5,000
proprietary organizations, such as training schools for
truck drivers and cosmetologists; and thousands of
libraries, museums, vocational rehabilitation agencies,
and correctional facilities. Consequently, these civil
rights laws protect large numbers of students attending,
or applying to attend, U.S. educational institutions. In
certain situations, the laws also protect persons who
are employed or are seeking employment at educational
institutions. Overall, these laws protect nearly 53.2
million students attending elementary and secondary
schools; and nearly 15.4 million students attending
colleges and universities.
368. Children with Disabilities. A recent
decision by the Supreme Court, Olmstead v. L.C.,
527 U.S. 581 (1999), held that, under the Americans with
Disabilities Act, a state must place qualified
individuals with mental disabilities, including
children, in community settings rather than in
institutions, whenever treatment professionals determine
that a community placement is appropriate, and where the
attendant circumstances, including the cost of a more
integrated setting and the states resources, permit.
Under President Bushs New Freedom Initiative, announced
in 2001, the President signed an executive order
expanding the goal of community placement to include all
Americans with disabilities, not just those with mental
disabilities.
369. The Individuals with Disabilities Education
Improvement Act was enacted in 2004. It contained
amendments to the Individuals with Disabilities
Education Act (IDEA), which more closely aligned the
IDEA with the No Child Left Behind Act of 2001. The IDEA
has helped to improve the educational opportunities for
children with disabilities. IDEA focused attention on
improving results for children with disabilities through
early identification of disabilities, early provision of
services, and meaningful access to the general
curriculum, including the involvement of the disabled
childs regular education teacher in the development,
review, and revision of the childs individualized
educational program. IDEA requires high expectations for
students with disabilities through the development of
state performance goals for these students; the
inclusion of children with disabilities in general state
and district-wide assessments with any necessary
accommodations; and reports on progress to the parents
of children with disabilities as often as such reports
are provided for children without disabilities. IDEA
also promotes the integration of children with
disabilities with non-disabled children. Higher
achievement levels should result in better preparation
for higher education, employment, and community living.
370. IDEA provides formula grants to states to assist
in the provision of early intervention and special
education services. These programs are intended to
ensure that the rights of infants, toddlers, children,
and youth with disabilities and their parents are
protected. Over 6 million infants, toddlers, children,
and youth with disabilities are served through these
programs under IDEA. In addition, IDEA provides for
discretionary grants to institutions of higher education
and other nonprofit organizations to support research,
technical assistance, technology and personnel
development, and parent-training and information
centers.
371. The Office of Rehabilitative Services
administers the IDEA. That Office develops and
disseminates federal policy on the education of infants,
toddlers, children, and youth with disabilities;
administers the formula grants and discretionary
programs authorized by Congress; supports research to
improve results for children with disabilities and
youth; and promotes the training of personnel, parents,
and volunteers to assist in the education provided
children and youth with disabilities. Furthermore, that
Office monitors and reports on the implementation of
federal policy and programs as well as the effectiveness
of early intervention and educational efforts for
children and youth with disabilities and coordinates
with other federal, state, and local agencies, along
with organizations and private schools, regarding the
review of policy, program, and implementation issues
related to the IDEA.
372. Financial support programs. The federal
government and states administer various programs to
provide temporary assistance and help parents find and
succeed at employment through which they can support
their families. The Temporary Assistance for Needy
Families (TANF) program provides grants to states who
administer the nation's primary temporary cash
assistance for low-income families with dependent
children. TANF is structured to provide temporary cash
assistance and services intended to help parents pursue
their highest possible degree of family
self-sufficiency. Many states also offer cash and
employment assistance to low-income individuals who need
employment. The Federal Supplemental Security Income
program provides cash assistance to low-income aged,
blind, or disabled individuals who are unable to hold
gainful employment. Low-income families with children
might also be eligible for the Earned Income Tax Credit
(EITC), a federal tax credit that offsets Social
Security payroll taxes by supplementing wages, and some
U.S. states offer an additional state EITC for these
families.
373. Child labor laws. As discussed in
paragraphs 717 720 of the Initial Report, the federal
Fair Labor Standards Act (FLSA) establishes national
minimum wage, overtime, record keeping and child labor
standards affecting more than 80 million full- and
part-time workers in both the public and private
sectors. 29 U.S.C. 201 et seq.
374. Violators of the FLSA's child labor provisions
may now be charged in the form of administrative civil
money penalties of up to $11,000 for each violation and,
in certain circumstances, may be subject to criminal
penalties.
375. The Wage and Hour Division (WHD) of the U.S.
Department of Labors Employment Standards
Administration, enforces the FLSA child labor
provisions. Its enforcement strategy is built around:
comprehensive compliance assistance, education, and
outreach programs directed at young workers, parents,
educators and employers; the development of partnerships
with other governmental and non-governmental entities to
promote compliance with the child labor laws; public
education efforts to foster awareness of and support for
child labor provisions, and strong enforcement through
directed and targeted investigations of employers of
young workers. In part,
as a result of the Department of Labor's enhanced,
targeted child labor enforcement and outreach, the
number of young workers whose employment was found to be
in violation of federal child labor provisions dropped
substantially over the last decade, and the number of
workplace injuries and fatalities to young workers has
also continued to decline.
376. On 2 December, 1999, the United States ratified
ILO Convention 182 on the Worst Forms of Child Labor.
The Convention requires ratifying states to take
immediate and effective measures to prohibit and
eliminate the worst forms of child labor. Before
recommending to the President of the United States that
the U.S. government ratify the convention, the
Tripartite Advisory Panel on International Labor
Standards (TAPILS), a sub-group of the Presidents
Committee on the International Labor Organization
comprising legal advisors from the Departments of Labor,
State and Commerce, the American Federation of Labor
andCongress of Industrial Organizations and the United
States Council for International Business, concluded
that existing law and practice of the United States
already gave effect to the terms of the Convention.
Thus, no U.S. laws were enacted or modified as a
consequence of U.S. ratification of the Convention.
377. Convention 182 also commits States Parties to
assist one another in their efforts to meet the
conventions provisions. Since 1995, the U. S.
Department of Labor (USDOL) has contributed
approximately $320 million to the International Labor
Organizations International Program on the Elimination
of Child Labor (ILO-IPEC) to support programs aimed at
removing children from exploitative work and providing
them with education and rehabilitation and their
families with viable economic alternatives. In addition,
as part of its Child Labor Education Initiative, since
2001, USDOL has awarded some $210 million in grants to
expand access to education in countries with a high
incidence of exploitative child labor. The Child Labor
Education Initiative nurtures the development, health,
safety and enhanced future employability of children
around the world by using education as a means to
prevent and combat abusive or hazardous child labor.
378. Armed conflict. Under U.S. law, in order
to serve in any branch of the U.S. military, a person
must be at least 18 years of age, or at least 17 years
of age and have parental consent. Prior to U.S.
ratification of the Optional Protocol to the Convention
on the Rights of the Child on Children in Armed
Conflict, it was the practice of the U.S. Department of
Defense that individuals under the age of 18 should not
be stationed in combat situations. See Regular
Army and Army Reserve Enlistment Program, Army
Regulation 601-210, Headquarters, Department of the
Army, 1 December 1988, Chapter 2. However, coincident
with ratification of the Optional Protocol, each branch
of the U.S. military has adopted policies that fulfill
the obligation assumed by the United States under the
Optional Protocol that all feasible measures should be
taken to ensure that persons under the age of 18 do not
take a direct part in hostilities.
379. Sexual exploitation of children. The
production, distribution, receipt and possession of
child pornography are illegal under both federal and
state law. In 2003, Congress enacted the Prosecutorial
Remedies and Tools Against the Exploitation of Children
Today Act (the "PROTECT Act"), Pub. L. 108-21 (2003),
which significantly increased the maximum penalties and
created new mandatory minimum penalties for federal
child pornography crimes. The United States Supreme
Court has ruled that the government has a compelling
interest in the protection of victims of child
pornography, one which overrides the free speech
interests of pornographers. See Osborne v.
Ohio, 495 U.S. 103 (1990).
380. Trafficking in children. Trafficking in
children is illegal under the Thirteenth Amendment to
the Constitution, which prohibits all forms of slavery
and involuntary servitude, except as punishment for
crime. This constitutional prohibition is supplemented
by numerous federal and state statutes. The Mann Act,
for example, prohibits trafficking in individuals for
purposes of prostitution and imposes heightened
penalties in the case of children. See 18 U.S.C.
2421 et seq. In addition, 18 U.S.C. 1591
criminalizes sex trafficking of children where there is
an interstate commerce jurisdictional element. The
Trafficking Victims Protection Act of 2000 makes it a
crime to induce a minor to engage in a commercial sex
act and does not require a showing of transport nor the
use of force, fraud, or coercion. All minors deemed
victims under the TVPA are also eligible for certain
protections and services, including immigration relief
and access to refugee benefits. The PROTECT Act of 2003
also increases the penalties, removes any statute of
limitations for sex crimes against children, and expands
federal jurisdiction to reach U.S. citizens who travel
abroad for child sex tourism. As an additional tool in
the arsenal to combat trafficking internationally, U.S.
citizens who engage in illicit sexual conduct with
minors abroad are also subject to criminal prosecution.
See 18 U.S.C. 2423.
381. The federal government administers a number of
health care programs which are designed to ensure that
all children in the United States receive adequate care,
free of charge if necessary.
382. The primary financing mechanism for publicly
funded health care in the United States is the Medicaid
insurance program, 42 U.S.C. 1396 et seq.
Operated by the states under broad federal guidelines,
Medicaid covers most, but not all, low-income pregnant
women, children, and caretaker relatives of children.
Medicaid has been a vehicle for improving prenatal care
and reducing infant mortality. In addition, the
preventive component of Medicaid, the Early and Periodic
Screening Diagnosis and Treatment (EPSDT) service,
requires that states provide a package that includes
screening, diagnostics and treatment to most
Medicaid-eligible individuals under the age of 21. Data
available from the Medicaid Statistical Information
System indicates that approximately 90 percent of
individuals under age 21 received some type of service
in FY 2002. In addition, data from the HHS Centers for
Medicare and Medicaid Services (CMS) show that for FY
2002, over 28 million individuals were eligible for
EPSDT services, an increase of 10 million individuals
since 1991.
Likewise, expenditures for care for individuals under
age 21 have increased from $16.3 billion in 1991 to
$51.5 billion in 2002. In addition, the State Childrens
Health Insurance Program (SCHIP), a federal-state
partnership, is the largest single expansion of health
insurance coverage for children in the United States in
more than 30 years, was created in 1997. SCHIP is
designed to provide health insurance coverage to
uninsured children, many of whom come from working
families with incomes too high to qualify for Medicaid
but too low to afford private health insurance. The
SCHIP law authorized $40 billion in federal funds over
ten years to improve childrens access to health
coverage. About 5.8 million children who otherwise would
not have health coverage were enrolled in SCHIP at some
point during FY 2003.
383. There are three principal programs for delivery
of public medical care in the United States, all managed
by HHS. The Title V Maternal and Child Health Block
Grant program makes federal funds available to U.S.
states to "provide and assure mothers and children (in
particular those with low income or with limited
availability of health services) access to quality
maternal and child health services." States are required
to match federal funds to deliver care at the local
level. Although
it has suffered from funding constraints, Title V
represents a commitment on the part of the United States
to provide primary health care to all American children
free of charge if necessary.
384. The second initiative is the Community Health
Center program, overseen by the HHS Health Resources and
Services Administration (HHS/HRSA), which finances
community, migrant, homeless, and public housing
Community Health Centers in medically underserved
communities and medically underserved populations around
the nation. By the end of FY 2003, nearly 3,600 health
care sites, supported by approximately 900 public and
private non-profit entities, provided comprehensive
primary care to 12.4 million patients. These patients
included almost 3.6 million women of childbearing age
(29 percent of all patients), ages 15 to 44 years, and
3.7 million children (30 percent) ages zero to 14. FY
2003 was the second year of President Bush's five-year
Community Health Centers Initiative to support 1,200 new
access points and expanded sites in order to serve
another 6.1 million patients by 2006.
385. The third principal program is the HHS/HRSA
National Health Service Corps, which unites primary care
clinicians (physicians, dentists, dental hygienists,
nurse practitioners, physician assistants, certified
nurse midwives, clinical psychologists, clinical social
workers, licensed professional counselors, marriage and
family therapists, and psychiatric nurse specialists)
with communities in need of health services
(health professional shortage areas). Sixty percent of
these clinicians are in rural and frontier areas, while
40 percent are in the inner city.
386. Another federal health care program is the Title
X Family Planning program, also administered by HHS. The
Title X family planning program makes available a broad
range of acceptable, age-appropriate and effective
family planning methods and related preventive health
care on a voluntary basis to all individuals who desire
such care, with priority given to low-income persons.
387. Finally, one program that contributes significantly
to the well being of low-income women and children is
the Supplemental Food Nutrition Program for Women,
Infants and Children (WIC), (42 U.S.C., 1786). This
latter program provides nutritious foods, including
medical foods where indicated, nutrition education, and
health care referrals and screenings, such as anemia
testing and immunization record reviews semi-annual
physical exams to low-income, high-risk pregnant and
post-partum women, infants and children under five years
of age. WIC foods offer nutrients vital during
pregnancy, infancy and early childhood that research has
shown to be lacking in the WIC population. Research has
shown that WIC reduces the incidence of pre-term birth,
low-birth weight, infant mortality, and health care
costs, improves nutrient intakes and cognitive
functioning in children, and, produces many other
positive effects.
388. Immunization. One of the most important
health services provided for children in the United
States is immunization. Approximately one half of
childhood vaccines administered in the United States are
financed through the private sector. The other half is
financed through a combination of state and federal
funds administered by the National Immunization Program
within the HHS Centers for Disease Control and
Prevention.
389. In 1993, the U.S. Congress enacted a new
childhood immunization program under Medicaid (Pub. L.
No. 103-66, 107 Stat. 312, section 13631) and
the Government Performance and Results Act (GPRA)
that requires accountability for federal funds. Under
the GPRA, HHS/CMS implemented a Medicaid childhood
immunization project that involved 49 U.S. states and
the District of Columbia. As a result of these efforts,
the rate of fully immunized preschool children has
improved in the United States. States are now requiring
their Managed Care Organizations (MCOs) and other
providers to provide information on immunizations given
to a state or local registry and/or demonstrate that a
minimum number of Medicaid beneficiaries are fully
immunized. Additionally, the HHS Vaccines for Children
Program (VFC), established in 1994, ensures equal access
to immunizations for all children and it is a
state-operated federal entitlement program that reduces
vaccine cost as a barrier to immunization for our
neediest children. The HHS VFC program has spent more
than $1.167 billion in FY 2003 to purchase vaccines for
eligible children. The VFC provides immunizations for
children who are uninsured, Medicaid recipients, Native
Americans, or Alaskan Natives. Additional doses of
vaccines are needed for vulnerable children who are not
eligible for the VFC program. Federal funding for the
Immunization Grant Program (also called the "317 grant
program") was launched in 1963 to serve the
under-insured who go to state and local public health
departments for vaccinations. In 2003, HHS/CDC awarded
$408 million in federal grants to state, local and
territorial public health agencies for 317 program
operations and vaccine purchases.
390. Services for children with disabilities. The
federal-state Medicaid program provides a range of
health and support services for children with
disabilities, including physician and hospital services,
prescription drug coverage, diagnostic services,
rehabilitation services such as physical, occupational
and speech therapy, case management, transportation and
respite care.
391. Under the Supplemental Security Income (SSI)
program, low-income individuals who are blind or
disabled are provided with cash income payments from the
federal government. Children are eligible if they are
disabled and if their family income and resources fall
below a certain level. As of the end of May 2004,
approximately 981,000 children, most with severe
disabilities, receive SSI monthly cash payments. Many
also receive additional cash payments from state
supplementary programs.
392. In the area of education, the Individuals with
Disabilities Education Act assists families in securing
free and appropriate public education for children with
disabilities. The Act also requires that the government
provide children with disabilities with "related
services," which include education-related therapies and
health services. These services are provided free of
charge. As of 2002, approximately 6.5 million children
received services from this program.
393. Registration and identity. The United
States does not have a system of national identification
cards or registration for citizens or nationals.
However, aliens over the age of 14 who remain in the
United States over 30 days must register and be
fingerprinted, with limited exceptions. See 8
U.S.C. 1302. Aliens under the age of 14 must be
registered by a parent or legal guardian. Aliens 18
years or older must keep in their possession at all
times any evidence of registration issued to them.
Registered aliens are required to notify DHS in writing
of a change of address within 10 days. See 8
U.S.C. 1305(a).
394. In addition, DHS may prescribe special
registration and fingerprinting requirements for
selected classes of aliens not lawfully admitted to the
United States for permanent residence, see 8
U.S.C. 1303(a), and may require, upon 10 days notice,
that natives of specified foreign countries notify DHS
of their current address and furnish additional
specified information. 8 U.S.C. 1305(b).
395. The National Security Entry-Exit Registration
System (NSEERS), described at 8 C.F.R. 264.1(f), 67
Fed. Reg. 52584 (Aug. 12, 2002), established special
registration procedures for nonimmigrant nationals or
citizens of specified countries.
396. Nationality. Acquisition of U.S.
citizenship is governed by the United States
Constitution and by federal statute. The Fourteenth
Amendment of the Constitution provides that "[a]ll
persons born in the United States and subject to the
jurisdiction thereof, are citizens of the United States"
regardless of the nationality of their parents. The
Immigration and Nationality Act further provides that a
child born abroad to a U.S. citizen parent (or parents)
shall acquire U.S. citizenship at birth provided the
U.S. citizen parent (or parents) complied with specified
requirements for residency or physical presence in the
United States prior to the child's birth. 8 U.S.C.
1401. Recently, the Supreme Court ruled with respect to
the child born abroad out of wedlock to a U.S. citizen-
father that one of three affirmative steps must be taken
before the child turns 18 for the child to acquire U.S.
citizenship: legitimization, a declaration of paternity
under oath by the father, or a court order of paternity.
See, 8 U.S.C. 1409(a)(4) (2005);
Tuan Anh Nguyen v. INS, 533 U.S. 53 (2001);
Miller v. Albright, 523 U.S. 420 (1998).
Article 25 - Access to the political system
397. The U.S. political system is open to all adult
citizens without distinction as to gender, race, color,
ethnicity, wealth or property. The right to vote is the
principal mechanism for participating in the U.S.
political system. The requirements for suffrage are
determined primarily by state law, subject to
limitations of the Constitution and other federal laws
that guarantee the right to vote. Over the course of the
nation's history, various amendments to the Constitution
have marked the process toward universal suffrage. In
particular, the Supreme Court's interpretations of the
Equal Protection Clause of the Fourteenth Amendment have
expanded voting rights in a number of areas.
398. The Presidential election in 2000 saw an extremely
close contest, with President George W. Bush winning the
state of Florida by fewer than 1,000 votes. The
contesting of the result raised some allegations of
voting irregularities. However, subsequent
investigations by the United States Department of
Justice revealed no evidence in support of these
allegations, nor any violations of federal voting rights
violations that affected the outcome of the election.
399. The administration of elections in the United
States is very decentralized, and is entrusted primarily
to local governments. However, in 2002, Congress enacted
the Help America Vote Act (HAVA), 42 U.S.C.
15301-15545, which provides funds for the purchase of
new voting equipment, to assist in the administration of
federal elections, and to establish minimum federal
election administration standards. These new
requirements include provisional balloting,
identification for new voters, voter education, voting
equipment for disabled voters, and statewide
computerized voter registration lists.
400. The United States invited the Organization for
Security and Co-operation in Europe (OSCE) to observe
the 2004 presidential election, as it has done for every
presidential and midterm election in the United States
since 1996. The U.S. invitation was issued in accordance
with the commitment the United States undertook with 54
other OSCE participating States in the 1990 Copenhagen
Document. Following the invitation, the OSCE deployed an
Election Observation Mission (EOM) on 4 October, 2004.
401. The EOM was a joint effort of the OSCE Office for
Democratic Institutions and Human Rights and the OSCE
Parliamentary Assembly focusing on specific issues
including those related to the implementation of the
Help America Vote Act in the framework of the
presidential and congressional elections.
402. Although all of the new HAVA requirements were not
yet effective in 2004, the presidential election was
conducted successfully with minimal problems. In support
of federal election laws, the Department of Justice
mounted its largest ever election-monitoring effort,
ultimately deploying 1,996 federal observers to 163
elections in 29 states. While advocates again raised
some allegations of voting rights violations,
investigation by the Department of Justice found no
evidence to support these claims. In fact, the turnout
of the voting age population was the highest in more
than 35 years, since the 1968 presidential election.
Turnout increased by nearly 17 million votes from the
2000 election and there were nearly 13 million new
voters, an increase of 8 percent in voter registration.
Long lines in some precincts resulted from the
unprecedented increase in turnout, a reflection of
increased citizen interest in participating in the
election process.
403. The OSCE raised some complaints of limited access for its
observers. However, these complaints misunderstand
United States election laws. As noted, elections,
including the admission of observers to polling places,
are largely subject to state, and not federal law. The
federal government lacks general authority to admit
observers into polling places. At the same time,
however, US elections are extremely transparent, and
every state allows representatives of political parties
and candidates to observe every step of the voting and
balloting counting process. But, state and local
authorities determine whether to grant permission to
outside observers, particularly those who have no stake
in the election process, to observe elections. The U.S.
Department of State is committed to facilitating OSCE
observation of elections in the United States and looks
forward to improved coordination in the future.
404. Ultimately, the OSCEs final report found that the
November 2nd elections were conducted in an environment
that reflects a long democratic tradition, including
institutions governed by rule of law, free and
professional media and civil society involved in all
aspects of the election process.
405. In the presidential race in particular, the mission
found that there was exceptional public interest not
only in the two main presidential candidates and
respective campaign issues, but also in the election
process itself with civil society substantially
contributing towards awareness of election issues and
voter participation.
406. The final report did, however, note several issues.
Included among these were inconsistencies among election
standards, possible conflicts of interest arising from
the way in which election officials are appointed,
allegations of electoral fraud and voter suppression in
the pre-election period, limited access to observers in
some jurisdictions, and long lines on election day.
407. Disability. The right of blind or disabled
citizens the to vote is guaranteed by Section 208 of the
Voting Rights Act, 42 U.S.C. 1973aa-6, by the Voting
Accessibility for the Elderly and Handicapped Act of
1984, 42 U.S.C. 1973ee et seq., and by the
Americans with Disabilities Act of 1990, 42 U.S.C.
12131 et seq., which prohibits discrimination
against disabled persons in all programs of state and
local governments. Section 301 of the Help America Vote
Act of 2002, 42 U.S.C. 15481, also contains new
provisions protecting disabled voters that will become
effective on 1 January, 2006, and require voting systems
to be accessible for disabled voters so that they are
able to vote with the same opportunity for privacy and
independence as other voters.
408. Citizenship. Under federal law and the laws
of the various states, the right to vote is almost
universally limited to citizens of the United States.
409. Absence from jurisdiction. All states
have procedures that permit those who will be out of
town on election day, or who are prevented because of
injury or illness from going to the polls, to vote by
absentee ballot, either by mail or in person in advance
of the election. Many states now also allow early voting
for a specified period of time prior to election day.
The right to vote in federal elections by overseas
citizens and members of the military and their
dependents is guaranteed by the Uniformed and Overseas
Citizens Absentee Voting Act, 42 U.S.C. 1973 et.
seq.
410. Criminal conviction and mental incompetence.
The 14th Amendment to the United States
Constitution explicitly recognizes the right of states
to bar an individual from voting "for participation in
rebellion, or other crime." Accordingly, most states
deny voting rights to persons who have been convicted of
certain serious crimes. The standards and procedures for
criminal disenfranchisement vary from state to state. In
most states, this disability is terminated by the end of
a term of incarceration or by the granting of pardon or
restoration of rights.
411. This is a matter of continuing scrutiny in the
states of the United States. In March 2005, the Nebraska
legislature repealed the lifetime ban on all felons and
replaced it with a two-year post-sentence ban. In 2003,
Alabama enacted a law that permits most felons to apply
for a certificate of eligibility to register to vote
after completing their sentence. In 2001, New Mexico
repealed the state's lifetime voting ban for persons
with felony convictions. Policy changes that lower
barriers to voting for ex-felons have also recently been
enacted in Connecticut, Delaware, Kentucky, Maryland,
Nevada, Pennsylvania, Virginia, Wyoming, and Washington.
412. In August 2001, the National Commission on Federal
Election Reform, chaired by former Presidents Carter and
Ford, recommended that all states restore voting rights
to citizens who have fully served their sentences.
413. District of Columbia. The United States
was founded as a federation of formerly sovereign
states. In order to avoid placing the nations capital
under the jurisdiction of any individual state, the
United States Constitution provides Congress with
exclusive jurisdiction over the "Seat of Government of
the United States," which is the District of Columbia.
U.S. Const. art. 1 8. The District of Columbia
initially occupied land donated by the state of Maryland
and the state of Virginia, also known as the
Commonwealth of Virginia. The Virginia portion of the
District of Columbia was, however, returned to Virginia
in 1846.
414. The right of residents of the District of
Columbia (DC) to vote for the President and Vice
President is guaranteed by the 23rd Amendment. They are
represented in the House of Representatives by a
non-voting Delegate, who sits on committees and
participates in debate, but cannot vote. D.C. does not
have representation in the Senate.
415. Insular areas. Residents of Guam, the
U.S. Virgin Islands, American Samoa, the Commonwealth of
the Northern Mariana Islands, and Puerto Rico do not
vote in elections for President and Vice-President. The
Twelfth Amendment and Twenty-Third Amendments to the
Constitution extend the right to vote in presidential
elections to citizens of "states" and to citizens of the
District of Columbia. These provisions do not extend to
the Insular Areas. See Attorney General of
Guam v. United States, 738 F.2d 1017 (9th Cir. 1984)
(residents of Guam not permitted to vote in presidential
elections). Igartua-De la Rosa v. United States,
32 F.3d 8 (1st Cir. 1994), and Igartua-De la Rosa v.
United States, 229 F.3d 80 (1st Cir. 2000)
(residents of Puerto Rico had no right under Article II
of the Constitution to vote in presidential elections);
Romeu v. Cohen, 265 F.3d 118 (2d Cir. 2001)
(federal and state laws denying a former resident of New
York the right to vote in presidential elections once he
became resident of Puerto Rico were not
unconstitutional). Please see additional information
under "self-determination."
416. In August of 2005, the U.S. Court of Appeals for
the First Circuit Court held that Puerto Rico is a
Commonwealth, not a state, therefore under the United
States Constitution, Puerto Rico does not have any
electors in the Electoral College which casts the final
vote for President and Vice-President of the United
States. Igartua-De la Rosa v. United States, 417
F.3d 145,147 (1st Cir. 2005). Furthermore, the First
Circuit stated that courts cannot grant the right to
vote to members of a Commonwealth, rather the right must
come through an amendment to the Constitution that only
Congress can create. Id. at 151.
417. Removal from office. Article 2, section 4
of the Constitution provides that "The President, Vice
President and all civil Officers of the United States,
shall be removed from Office on Impeachment for, and
Conviction of, Treason, Bribery, or other high Crimes
and Misdemeanors." Under Article 1, the Senate has the
sole power to try impeachments, and the House of
Representatives has the sole power to impeach. In
addition, each House of the Congress has the power to
pass judgment on the qualifications of its members and
expel members. Similar procedures are generally
available at the state and local level, and there are
legal safeguards to protect office holders from abuse of
these processes. See Powell v. McCormack,
395 U.S. 486 (1969) (Congress cannot exclude a member
who has the qualifications prescribed in the
Constitution); Bond v. Floyd, 385 U.S. 116
(1966)(exclusion for the expression of political views
violates the free speech guarantee of the First
Amendment). Also commonly available at the state and
local level is the recall process, by which voters can
petition for an election to determine whether an elected
official should remain in office.
418. In 1998, William Jefferson Clinton, the 42nd
President of the United States, became the first elected
President of the United States to be impeached, tried,
and then acquitted by the Senate after a scandal exposed
his affair with a White House intern. The impeachment
resolution included two Articles of Impeachment. The
first alleged that
President Clinton willfully corrupted and manipulated
the judicial process of the United States for his
personal gain. The second alleged that he prevented and
obstructed the administration of justice and engaged in
a course of conduct designed to delay, cover up, and
conceal evidence.
419. In 2003, a recall movement arose against
California Governor Gray Davis in reaction to the
Governors response to the 2001 California energy crisis
and the 2003 budget deficit. The 2003 recall was a
special election permitted under California law. After
several legal and procedural efforts failed to stop it,
California's first-ever gubernatorial recall election
was held on October 7. California voted to recall Davis
and to elect Arnold Schwarzenegger as his replacement.
The result was officially certified on November 14 and
Schwarzenegger was sworn in on November 17. Governor
Davis was the first governor recalled in the history of
California, and just the second in U.S. history.
Access to public service
420. The U.S. government employs approximately 2,725,000
civilian workers, located in the 50 states and the
District of Columbia, of whom some 300,000
are hired annually. With few exceptions,
federal employees are selected pursuant to statutes
establishing a merit-based civil service system designed
to make employment opportunities available to the most
qualified applicants through recruitment, hiring,
retention and evaluation procedures that are free from
considerations of politics, race, sex, religion,
national origin, disability and age.
421. The statutory mandate for the federal civil
service is as follows:
"Recruitment should be from qualified individuals from
appropriate sources in an endeavor to achieve a
workforce from all segments of society, and selection
and advancement should be determined solely on the basis
of relative ability, knowledge, and skills, after fair
and open competition which assures that all receive
equal opportunity." 5 U.S.C. 2301 (b)(1).
422. The federal civil service system has its origin
in the Civil Service Act of 1883. Until this Act, it was
the practice of the federal government to reward
political loyalists with jobs. It was not surprising,
therefore, that the primary purpose of this first Civil
Service Act was to remove political influence from
federal personnel management decisions. The concept of
merit selection, which was codified in this Act, remains
in effect to this day.
423. Central to the United States' merit-based system
is the process of open competition, and today more than
half of all federal jobs are filled through such
competition. The federal competitive service requires
applicants to compete for positions based on a written
examination and/or an evaluation of their education and
work experience. Once hired, advancement is also
competitive and based on performance and merit.
Moreover, as a result of the leadership of the federal
government and the success of the federal merit system,
the great majority of state and local governments, who
employ in excess of 15,680,000 civil servants, have
adopted similar merit-based employment procedures.
424. The 1978 Civil Service Reform Act created a
federal equal opportunity recruitment program to meet
the statute's goal of recruitment from all segments of
the workforce. One of the purposes of the Act is to
promote "a competent, honest, and productive federal
workforce reflective of the nation's diversity".
Pursuant to this mandate, special efforts are taken to
recruit minorities and women who may be underrepresented
in various job categories. Efforts are also made to
ensure that the selection procedures themselves are not
culturally biased and do not artificially eliminate from
consideration otherwise qualified members of
underrepresented groups.
425. In addition, the federal civil service and many
state and local civil service programs have taken
important steps to protect their employees from
political influence. In accordance with the principles
of a merit-based civil service, the Hatch Act, passed in
1939, prohibits federal employees from actively
participating in partisan politics. Congress determined
that partisan political activity must be limited in
order for public institutions to perform fairly and
effectively. However, the law does not prohibit federal
employees from registering, voting, making financial
contributions to political candidates, and expressing
their personal opinions on political candidates and
questions.
426. National policy in this area has also been
codified in various federal, state and local civil
rights laws. These laws ensure that employment decisions
at all levels of government are free from bias based
upon race, sex, religion, national origin, disability
and age. The laws also provide aggrieved individuals
access to impartial and independent tribunals to
adjudicate alleged violations of their rights.
427. The policies and protections of the federal,
state and local civil service systems offer all
Americans the promise of being treated equally in civil
service employment. Women and minorities are still
overrepresented at the lower levels of pay and
authority, but their status in public sector employment
exceeds their status in private sector employment. As of
2003, women constitute 45 percent of federal civilian
government employees.
428. U.S. Congress. A record 83 women serve in
the 109th United States Congress (2005-2007):
69 in the House of Representatives and 14 in the Senate.
In addition, three women serve as Delegates to the House
from Guam, the Virgin Islands and Washington, DC.
429. Of the 83 women serving in Congress, 24.7
percent of the women are women of color. A total of 14
Black women, 7 Hispanic women, and 3 Asian women are
currently serving in Congress. Women make up
approximately 14 percent of the United States Congress.
430. In the 109th Congress, Representative
Nancy Pelosi (D-CA), the House Democratic Leader, became
the first woman to lead her party in Congress. Five
other women hold leadership positions in Congress.
431. State elective executive offices. Women
made substantial gains at the state level in the 1992
elections. The number of women holding statewide
elective executive posts increased four percentage
points, from 18.2 percent (59 women) to 22.2 percent (72
women).
432. Currently, a record number of 8 women are
simultaneously serving as Governor of the 50 states.
Additionally, a woman was recently elected to serve as
the first woman Governor of Puerto Rico. Eight women are
serving as Lieutenant Governors of their state.
433. Women appointed to government positions.
With the increased awareness of women as active voters
and elected officials has come an increase in the number
of women appointed to cabinet-level positions in
federal, state, and local government, women judges, and
women as members of special advisory commissions on a
wide range of specialized topics. Nevertheless, the
systematic inclusion of women at all levels of the
planning process in policymaking is far from complete.
434. National executive offices. Two women
currently serve at Cabinet-level positions in the
Administration: Condoleezza Rice is the Secretary of
State and Margaret Spellings is the Secretary of
Education.
Minorities in government
435. The representation of minorities at all levels of
public service continues to increase.
436. U.S. Congress. Like women, minorities
have made significant gains in Congressional
representation as a result of the 2005 elections.
Currently, 42 Blacks are members of the House and 1 is a
member of the Senate. There are 24 Hispanics in the
House, and 2 in the Senate. There are 4 Asian Americans
in the House, and 2 in the Senate.
Article 26 - Equality before the law
437. As indicated in the discussion of the Initial
Report, all persons in the United States are equal
before the law. Subject to certain exceptions, such as
the reservation of the right to vote to citizens, they
are equally entitled to all the rights specified in the
Covenant. In addition, as discussed at length under
Article 2, all persons in the United States enjoy the
equal protection of the laws. Any distinction must at
minimum be rationally related to a legitimate
governmental objective, and certain distinctions such as
race can be justified only by a compelling governmental
interest, a standard that is almost never met.
Article 27 - The rights of minorities to culture,
religion and language
438. Linguistic freedom. The First Amendment to
the Constitution guarantees all persons in the United
States the right to converse or correspond in any
language they wish. Virtually every major language is
spoken somewhere in the United States, and there are no
restrictions on the use of foreign language in the print
or electronic media. Under Sections 203 and 4(f)(4) of
the Voting Rights Act, 42 U.S.C. 1973b and
1973aa-1a, the states and political subdivisions are
required to provide multilingual election services for
all elections in those jurisdictions in which members of
a single language minority with limited English
proficiency constitute more than 5 percent of the voting
age population or more than 10,000 citizens of voting
age. The language minorities that are covered are
limited to persons who are American Indian, Asian
American, Alaskan Natives, or of Spanish Heritage. This
requirement of the Voting Rights Act is scheduled to
expire in 2007 unless renewed by Congress. In those
jurisdictions that are not covered by the language
minority provisions of the Voting Rights Act, Section
208 of the Act, 42 U.S.C. 1973aa-6, mandates that any
voter who requires assistance to vote by reason of an
inability to read or write the English language may be
given assistance by a person of the voter's choice,
other than the voter's employer or agent of that
employer or officer or agent of the voter's union.
439. No Child Left Behind. The No Child Left Behind Act of 2001
(NCLB Act) also will go a long way to ensure that all
children receive a quality education, through its
comprehensive overhaul of the Elementary and Secondary
Education Act of 1965 (ESEA). Title I of the ESEA
provides financial assistance to school districts with
high concentrations of students from low-income families
to improve the academic achievement of students who are
failing, or at risk of failing, to meet state academic
standards. The NCLB Act strengthens Title I
accountability by requiring states to implement
statewide accountability systems for all schools and
students. Each state is required to establish academic
content and achievement standards and define adequate
yearly progress, for the state as a whole and for
schools and school districts, toward ensuring that all
students meet these standards. Adequate yearly progress
must include separate measurable annual objectives for
continuous and substantial improvement for all public
elementary and secondary students and for the
achievement of economically disadvantaged students,
students from major racial and ethnic groups, students
with disabilities, and students with limited English
proficiency. These accountability systems also will
include annual testing for students in grades 3-8. The
reauthorized ESEA requires, as a condition of a states
receipt of Title I funds, that the results of annual
statewide testing be published and broken down, at the
school, school district, and state levels, by poverty,
race, ethnicity, gender, migrant status, disability
status, and limited English proficiency to ensure that
no group is left behind.
440. If a school or school district fails to make
adequate yearly progress, the school or district is
subject to a sequence of steps to address the situation,
moving from improvement, to corrective action, and to
restructuring measures that will seek to get them on
course to meet state standards. Parents and students
attending these schools must be given the opportunity to
attend another public school within the district. A
school district with persistently failing schools must
set aside a portion of its Title I funds for
"supplemental educational services" (tutoring or other
academic support provided outside the regular school
day). If a school meets or exceeds adequate yearly
progress objectives or closes achievement gaps, it will
be eligible for state achievement awards. These measures
will provide incentives for schools and districts to
improve and increase choice for parents and students.
441. In addition, the ESEA, as reauthorized by the
NCLB Act, recognizes reading as the fundamental building
block of a childs education. It includes President
Bushs commitment to ensure that every child can read by
the end of the third grade. The Reading First initiative
substantially increases the U.S. investment in early
reading programs based on scientific research. This
should reduce the number of children identified for
special education due to lack of appropriate reading
instruction. States and districts receive grants that
may be used for screening and diagnostic assessments to
identify students in grades K-3 at risk of reading
failure as well as to provide professional development
in reading instruction for K-3 teachers. Assistance for
pre-K reading programs also is provided. Finally, states
receive grants that focus on scientifically based
research to prepare and recruit high-quality teachers.
442. Serving Limited English Proficient Children.
The NCLB Act simplified federal support for English
language instruction by combining categorical bilingual
and immigrant education grants into a state formula
program. This formula program assists states and school
districts in doing the comprehensive planning needed to
implement programs for limited English proficient (LEP)
students that help these students learn English as
quickly and effectively as possible, through
scientifically based teaching methods, and to help these
students to achieve the same high academic standards as
other students. This formula program also increases
flexibility and accountability for states and districts
in addressing the needs of LEP students. In addition,
under the reauthorized Title I program, all LEP students
must be tested for English language proficiency, as well
as for reading and language arts in English, after they
have attended a U.S. school for three consecutive years,
subject to certain exceptions.
443. Furthermore, the Office of English Language
Acquisition, Language Enhancement, and Academic
Achievement for Limited English Proficient Students
(OELA), formerly the Office of Bilingual Education and
Minority Languages Affairs, provides national leadership
in promoting high-quality education for the nations
population of LEP students. OELA's mission is to ensure
that all limited English proficient students learn
English and achieve to the same high academic
achievement targets in content areas of reading, math,
and science that states set for all students, as well as
to build partnerships between parents and the
communities. OELA administers grant programs that help
every child learn English and content matter at high
levels and collaborates with other federal, state, and
local partners to strengthen and coordinate services for
LEP children and promote best practices.
444. The Department of Justice enforces section 204
the Equal Educational Opportunities Act, 20 U.S.C.
1703, which forbids states from denying equal
educational opportunity to an individual on account of
his or her race, color, sex, or national origin, by such
actions as failing to take appropriate steps to overcome
language barriers that impede equal participation by its
students in its instructional programs.
445. Finally, as discussed above, OCR enforces Title
VI of the Civil Rights Act of 1964 and its implementing
regulations, which prohibit discrimination based on
race, color, and national origin by recipients of
federal financial assistance. In Lau v. Nichols,
414 U.S. 563 (1974), the U.S. Supreme Court affirmed the
former Department of Health, Education, and Welfares
Office for Civil Rights Memorandum of 25 May, 1970,
which directed school districts to take affirmative
steps to help LEP students overcome language barriers
and to ensure that they can participate meaningfully in
each districts educational programs. To comply with
Title VI, programs to educate national origin minority
group children with limited proficiency in English must
be: 1) based on a sound educational theory; 2)
adequately supported so that the program has a realistic
chance of success (with adequate and effective staff and
resources); and 3) periodically evaluated and revised,
if necessary.
446. OCRs policy is designed to ensure that LEP
children at the elementary and secondary level learn
English and enter the educational mainstream. School
districts have substantial flexibility in implementing
programs and services to meet the needs of LEP students,
so long as the programs and services are effective.
Neither OCR nor the Department of Education requires or
advocates a particular program of instruction for LEP
students.
III. Committee Suggestions and Recommendations
447. The Committee recommended that the United States
review its reservations, declarations and understandings
with a view to withdrawing them, in particular
reservations to Article 6, paragraph 5, and Article 7 of
the Covenant.
448. Comment: The United States has reviewed its
reservations, declarations and understandings to the
Covenant, and concluded that they are appropriate. With
reference to Article 6(5) and Article (7) of the
Covenant, the United States notes that its reservations
are founded in United States constitutional principles.
In that regard, with respect to Article 6(5), the United
States also notes that, since its Initial Report, the
Supreme Court has ruled that the execution of offenders
who were under 18 years of age at the time of their
offense is prohibited by the United States Constitution.
See Roper v. Simmons, 125 S. Ct. 1183
(2005).
449. The Committee hopes that the government of the
United States will consider becoming a Party to the
First Optional Protocol to the Covenant.
450. Comment: The United States has considered this
issue and has no current intention of becoming a Party
to the First Optional Protocol to the Covenant.
451. The Committee recommends that appropriate
inter-federal and state institutional mechanisms be
established for the review of existing as well as
proposed legislation and other measures with a view to
achieving full implementation of the Covenant, including
its reporting obligations.
452. Comment: The United States has considered this
issue, and on December 18, 1998, the President issued
Executive Order 13107 regarding the implementation of
human rights treaties. This order declares, inter
alia, that it "shall be the policy and practice of
the government of the United States,
fully to implement
its obligations under the international human rights
treaties to which it is a Party and that all executive
departments and agencies
shall maintain a current
awareness of United States international human rights
obligations that are relevant to their functions and
shall perform such functions so as to respect and
implement those obligations fully."
453. The order further establishes an Interagency
Working Group on Human Rights Treaties "for the purpose
of providing guidance, oversight, and coordination with
respect to questions concerning the adherence to and
implementation of human rights obligations and related
matters. The principal functions of this group include,
inter alia, (i) coordinating the
preparation of reports that are to be submitted by the
United States in fulfillment of its international human
rights treaty obligations, (ii) coordinating responses
to complaints submitted to the United Nations, the
Organization of American States, and other international
organizations alleging human rights violations by the
United States, and (iii) developing effective mechanisms
to review legislation proposed by the Administration for
conformity with international human rights obligations
and that these obligations are taken into account in
reviewing legislation under consideration by the
Congress. Consistent with the order, a variety of
inter-agency procedures now exist to ensure that the
matters addressed by the order are coordinated among all
relevant agencies.
454. With respect to complying with its reporting
obligations on a timelier basis, since the fall of 2003,
the Department of State has more than doubled the
resources it has dedicated to the purpose of completing
such reports. The United States government is committed
to submitting timely treaty reports.
455. The Committee emphasizes the need for the
government to increase its efforts to prevent and
eliminate persisting discriminatory attitudes and
prejudices against persons belonging to minority groups
and women including, where appropriate, through the
adoption of affirmative action. State legislation which
is not yet in full compliance with the
non-discrimination Articles of the Covenant should be
brought systematically into line with them as soon as
possible.
456. Comment: The United States agrees that efforts
to prevent and eliminate public and private
discrimination consistent with our Constitution are of
the utmost importance. The Civil Rights Division of the
Department of Justice, the independent Equal Employment
Opportunity Commission, the Office of Federal Contract
Compliance Programs of the U.S. Department of Labor, and
the Office for Civil Rights of the U.S. Department of
Education, among others, vigorously enforce
anti-discrimination laws, including, among others, the
Civil Rights Act of 1964, the Voting Rights Act of 1965,
Executive Order 11246, Title IX of the Education
Amendments, the Americans with Disabilities Act of 1992,
and the Help America Vote Act of 2002.
457. At the same time, the United States government
believes that discriminatory attitudes and prejudices
are best fought by promoting equal access and individual
merit as the guiding forces behind opportunity and
advancement in society. The United States Supreme Court
has interpreted the United States Constitution's equal
protection principle to be incongruent with fostering
racial or gender preferences and classifications except
in the most compelling circumstances. See
Gutter v. Bollinger, 539 U.S. 309 (2003);
United States v. Virginia, 518 U.S. 515, 531
(1996). Under U.S. law, vague and amorphous allusions to
societal discrimination at large are not a compelling
interest; policies aimed at remedying discrimination in
a particular institution or program can be considered a
compelling interest. Croson, 488 U.S. at 499-506;
Adarand Constructors, Inc. v. Pena, 515 U.S. 200
(1995). Furthermore, we note that no provision in the
Covenant requires the use of "affirmative action" as a
governmental policy.
458. The Committee urges the State Party to revise
federal and state legislation with a view to restricting
the number of offences carrying the death penalty
strictly to the most serious crimes, in conformity with
Article 6 of the Covenant and with a view eventually to
abolishing it. It exhorts the authorities to take
appropriate steps to ensure that persons are not
sentenced to death for crimes committed before they were
18. The Committee considers that the determination of
methods of execution must take into account the
prohibition against causing avoidable pain and
recommends the State Party to take all necessary steps
to ensure respect of Article 7 of the Covenant.
459. Comment: While, consistent with reservation (2)
of the United States to the Covenant, the Covenant
imposes no constraint on the crimes for which the United
States may impose capital punishment, under the United
States Constitution the use of the death penalty is
restricted to particularly serious offenses. Also, see
our response to Comment 1. Regarding Article 7, the
United States reminds the Committee that under U.S.
reservation (3), the United States is bound by Article 7
only to the extent that "cruel, inhuman or degrading
treatment or punishment" means the cruel and unusual
treatment or punishment prohibited by the Fifth, Eighth
and/or Fourteenth Amendments to the Constitution. The
United States government takes the position that methods
of execution currently employed in the United States do
not constitute cruel and unusual punishment under our
Constitution.
460. The Committee urges the State Party to take all
necessary measures to prevent any excessive use of force
by the police; that rules and regulations governing the
use of weapons by the police and security forces be in
full conformity with the United Nations Basic Principles
on the Use of Force and Firearms by Law Enforcement
Officials; that any violations of these rules be
systematically investigated in order to bring those
found to have committed such acts before the courts; and
that those found guilty be punished and the victims be
compensated.
461. Comment: The United States refers the Committee
to the various sections of this report that demonstrate
that the United States, at the state and federal level,
prohibits and punishes excessive use of force by
government officials.
462. Regulations limiting the sale of firearms to the
public should be extended and strengthened.
463. Comment: This recommendation states a policy
preference rather than addressing a duty or obligation
under the Covenant. As the Committee is aware, the
Second Amendment of the United States Constitution
states that "[a] well regulated militia being necessary
to the security of a free State, the right of the people
to keep and bear arms, shall not be infringed." The
United States recognizes that this Amendment protects a
right of the public to possess firearms. The Second
Amendment, however, allows for reasonable restrictions
designed to prevent unfit persons from possessing
firearms or to restrict possession of firearms
particularly suited to criminal misuse, and there are
many such restrictions at both the federal and state
level. Pursuant to federal law, a person seeking to
purchase firearms from a Federal Firearm Licensee is
subject to a background check to determine whether the
transfer should be denied because the person falls
within a prohibited category. In addition, the United
States government, under its Project Safe Neighborhoods
initiative and in partnership with state and local law
enforcement, vigorously prosecutes prohibited persons
found in possession of firearms.
464. The Committee recommends that appropriate
measures be adopted as soon as possible to ensure to
excludable aliens the same guarantees of due process as
are available to other aliens and guidelines be
established which would place limits on the length of
detention of persons who cannot be deported.
465. Comment: The Department of Homeland Security and
the Department of Justice have promulgated extensive
regulations governing the continued detention of aliens
who are subject to an order of removal, deportation, or
exclusion. See generally 8 C.F.R. 241.13,
241.14, 1241.14.
466. The United States Supreme Court has long held
that aliens who have been stopped at the border and are
seeking admission in the first instance or who have been
inspected and denied admission have no constitutional or
statutory entitlement to be admitted or released into
the United States. See generally
Zadvydas v. Davis, 533 U.S. 678, 693-694 (2001);
Shaughnessy v. United States ex rel.Mezei, 345 U.S.
206, 212 (1953); U.S. ex rel. Knauff v. Shaughnessy,
338 U.S. 537 (1950); see also
United States v. Flores-Montano, 124 S. Ct. 1582,
1585 (2004) ("The governments interest in preventing
the entry of unwanted persons . . . is at its zenith at
the international border."); Landon v. Plasencia,
459 U.S. 21, 32 (1982) ("This Court has long held that
an alien seeking initial admission to the United States
requests a privilege and has no constitutional rights
regarding his application, for the power to admit or
exclude aliens is a sovereign prerogative. . .
.[H]owever, once an alien gains admission to our country
and begins to develop the ties that go with permanent
residence, his constitutional status changes
accordingly."). In neither Zadvydas v. Davis, 533
U.S. 678 (2001), nor Clark v. Martinez, 125 S.
Ct. 716 (2005), did the Supreme Court purport to impose
constitutional limits on the governments detention
authority, especially with regard to aliens who are
dangerous to national security or who pose threats to
public safety.
467. The Committee's recommendation was given careful
consideration, but it is the view of the United States
that current U.S. law fully satisfies the obligations
the United States has assumed under the Covenant. United
States immigration law draws reasonable distinctions,
with respect to the nature and quantum of rights
afforded in the detention and removal process, between
aliens who were stopped at the border and not lawfully
admitted to the United States and those who were
lawfully admitted. Governments may make such reasonable
distinctions under national law consistent with the
Covenant. In addition, the United States has a
legitimate interest in taking steps so that aliens who
pose a threat to the public safety or national security
are removed from the country as soon as practicable and,
while awaiting removal, are subject to appropriate
custody or detention.
468. The Committee does not share the view expressed
by the government that the Covenant lacks
extraterritorial reach under all circumstances. Such a
view is contrary to the consistent interpretation of the
Committee on this subject, that, in special
circumstances, persons may fall under the subject-matter
jurisdiction of a State Party even when outside that
state's territory.
469. Comment: The United States continues to consider
that its view is correct that the obligations it has
assumed under the Covenant do not have extraterritorial
reach. Please note Annex I to this report.
470. The Committee expresses the hope that measures
be adopted to bring conditions of detention of persons
deprived of liberty in federal or state prisons in full
conformity with Article 10 of the Covenant. Legislative,
prosecutorial and judicial policy in sentencing must
take into account that overcrowding in prisons causes
violation of Article 10 of the Covenant.
471. Comment: All prisons in the United States are
subject to the strictures of the federal Constitution
and federal civil rights laws. Prisons must ensure that
"inmates receive adequate food, clothing, shelter, and
medical care and must 'take reasonable measures to
guarantee the safety of inmates.'" Farmer v. Brennan,
511 U.S. 825, 832-33 (1994). The Americans with
Disabilities Act and the Rehabilitation Act generally
require prison physical spaces and programs to be
accessible to inmates with impairments, subject to
appropriate security and safety concerns, and the
Individuals with Disabilities in Education Act requires
prisons to provide inmates with appropriate special
educational services.
472. As noted, the federal Constitution prohibits
prison conditions, including overcrowding, when such
constitutes "cruel and unusual punishment." Rhodes v.
Chapman, 452 U.S. 337, 352(1981). However, in making
such a determination, "courts cannot assume that state
legislatures and prison officials are insensitive to the
requirements of the Constitution or to the perplexing
sociological problems of how best to achieve the goals
of the penal function in the criminal justice system: to
punish justly, to deter future crime, and to return
imprisoned persons to society with an improved change of
being useful, law-abiding citizens." Id.
Overcrowding, standing alone, does not violate federal
law. Nor does the United States agree that overcrowding,
standing alone, violates Article 10(1).
473. Existing legislation that allows male officers
access to women's quarters should be amended so as to
provide at least that they will always be accompanied by
women officers.
474. Comment: It is not the practice of the federal
Bureau of Prisons or of most state corrections
departments to restrict corrections officers to work
only with inmates of the same sex. Furthermore,
requiring female officers always to be present during
male officers' access to women's quarters would be
extremely burdensome on prison resources. Appropriate
measures are taken, however, to protect female
prisoners. Staff are trained to respect offenders
safety, dignity, and privacy, and procedures exist for
investigation of complaints and disciplinary
action-including criminal prosecution-against staff who
violate applicable laws and regulations.
475. Conditions of detention in prisons, in
particular in maximum security prisons, should be
scrutinized with a view to guaranteeing that persons
deprived of their liberty be treated with humanity and
with respect for the inherent dignity of the human
person, and implementing the United Nations Standard
Minimum Rules for the Treatment of Prisoners and the
Code of Conduct for Law Enforcement Officials therein.
476. Comment: All prisoners in the United States are
guaranteed treatment that does not constitute cruel and
unusual punishment prohibited by the United States
Constitution. Also, see the response to Question
10, supra. It is also worth noting that the United
Nations Standard Minimum Rules for the Treatment of
Prisoners and the Code of Conduct for Law Enforcement
Officials are non-binding recommendations.
477. Appropriate measures should be adopted to
provide speedy and effective remedies to compensate
persons who have been subjected to unlawful or arbitrary
arrests as provided in Article 9, paragraph 5, of the
Covenant.
478. Comment: The Constitution of the United States
prohibits unreasonable seizures of persons, and the
Supreme Court has allowed the victims of such
unconstitutional seizures to sue in court for money
damages. See, e.g., Bivens v. Six
Unnamed Known Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971). In addition, the United States
reminds the Committee of the understanding (2) of the
United States concerning Article 9(5).
479. The Committee recommends that further measures
be taken to amend any federal or state regulation which
allow, in some states, non-therapeutic research to be
conducted on minors or mentally-ill patients on the
basis of surrogate consent.
480. Comment: The U.S. government's position in the
protection of human subject regulations is grounded in
extensive public review and debate, based on the
recommendations of the National Commission for the
Protection of Human Subjects of Biomedical and
Behavioral Research. Fourteen federal government
departments and agencies have adopted regulations that
provide protection for human subjects in
federally-conducted or -supported research. Under these
rules, a legally authorized representative may consent
to a subject's participation in research, including
non-therapeutic research. This includes mentally ill
subjects or subjects with impaired decision-making
capacity, including minors. The rules provide rigorous
safeguards for research subjects in general and
recognize that additional protections may be necessary
for vulnerable populations. The U.S. government does not
see a need to reexamine that position.
481. The Committee recommends that the current system in
a few states in the appointment of judges through
elections be reconsidered with a view to its replacement
by a system of appointment on merit by an independent
body.
482. Comment: The United States does not believe
there is any reason to reconsider the state practice of
election of judges. Popular election of judges, though
not provided for in the federal Constitution, is one
means of ensuring democratic accountability of the state
and local judicial branch of government. Furthermore,
each state is entitled to determine the structure of its
government, with only limited, circumscribed
restrictions in federal law.
483. The Committee recommends that steps be taken to
ensure that previously recognized aboriginal Native
American rights cannot be extinguished. The Committee
urges the government to ensure that there is a full
judicial review in respect of determinations of federal
recognition of tribes. The Self-Governance Demonstration
Project and similar programs should be strengthened to
continue to fight the high incidence of poverty,
sickness and alcoholism among Native Americans.
484. Comment: Under United States Constitutional law,
the Congress has plenary power over Native American
communal rights.
485. Indigenous groups seeking recognition as federally
recognized tribes may submit an application for
recognition to the Department of the Interior, or else
be recognized through Congressional or other Executive
Branch actions. Indigenous groups who are unsuccessful
in this process may seek review of a recognition
decision in a United States federal court.
486. The United States also provides a diverse array of
funding and training opportunities, as well as direct
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