American Hypocrisy: How the United States' System of Mass Incarceration and Police Brutality Fail to Comply With Its Obligations Under the International Convention on the Elimination of All Forms of Racial Discrimination

• Jurisdiction: United States,Federal
• Citation: Vol. 45 No. 3
• Publication year: 2017

AMERICAN HYPOCRISY: HOW THE UNITED STATES' SYSTEM OF MASS INCARCERATION AND POLICE BRUTALITY FAIL TO COMPLY WITH ITS OBLIGATIONS UNDER THE INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION

R. Danielle Burnette^*

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TABLE OF CONTENTS

I. INTRODUCTION ...............................................................................573

II. THE SHOOTING OF MICHAEL BROWN AND RACIAL DISCRIMINATION IN THE CRIMINAL JUSTICE SYSTEM ....................575

A. Mike Brown + Police Brutality................................................575
B. Racial Discrimination..............................................................578

1. Racial Profiling..................................................................578
2. Disparate Incarceration and Sentencing...........................580

C. Failure to Indict Police............................................................582

III. INTERNATIONAL AND DOMESTIC LAW ...........................................584

A. The International Convention on the Elimination of All Forms of Racial Discrimination...............................................584

1. History and Ratification.....................................................584
2. Relevant Provisions...........................................................585

a. Scope and Definitions of Racial Discrimination.........585
b. State Obligations under the Convention.....................586
c. The Committee and Its Work.......................................588

3. Enforcement Mechanisms..................................................590

B. Domestic Law...........................................................................591

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1. Federal Law.......................................................................591
2. State Law...........................................................................593
3. United States Supreme Court Rulings................................594

IV. APPLICATION OF THE INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION TO UNITED STATES FEDERAL AND STATE LAW ...................................595

A. Indicators of Racial Discrimination.........................................595
B. Violations of the International Convention on the Elimination of All Forms of Racial Discrimination.................601

V. RECOMMENDATIONS AND CONCLUSION ........................................606

A. Better Enforcement...................................................................606
B. Better Legislation.....................................................................606
C. Better Access to Justice............................................................607
D. Better Accountability................................................................607
E. Better Police Training..............................................................607

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I. INTRODUCTION

With her strong military and large capitalist economy, few have dared challenge America for her spot. Founded as a refuge for the outcasts of England, America quickly became the destination of many seeking shelter from oppressive governments and insurgents. In fact, the words engraved on the Statue of Liberty, America's symbol of freedom, welcome those most in need:

"Give me your tired, your poor, Your huddled masses yearning to breathe free, The wretched refuse of your teeming shore. Send these, the homeless, tempest-tost to me, I lift my lamp beside the golden door!"¹

Not only does the United States welcome the huddled masses to seek refuge within her borders, she also readily sends forth her military to combat injustice abroad. Yet while she combats injustice abroad, she allows it to fester within her borders.

This is the American Hypocrisy: the ability of the United States to see the inequities of other countries while turning a blind eye to her own. Racial discrimination has been an unfortunate component of American society since its founding. operating under a system of race-based slavery, the writers of the Declaration of Independence open with the obvious untruth that all men are created equal. Since that time, the American hypocrisy and racial discrimination has continued to affect the lives of minorities. In the 1940s during World War II, the United States joined the fight against the Holocaust while thousands of African-Americans were lynched.² In the 1960s, America led the charge to stop the spread of communism in Vietnam while neglecting the struggle for civil rights within the United States. And today, America is working diligently to fight violence abroad while failing to address the domestic violence within her borders.

In the last couple of years the shooting deaths of several African-American males at the hands of law enforcement officers, and the failure to indict the officers responsible, galvanized protesters across the United States to raise awareness and demand changes in policing practices. Beginning in 2014 with the shooting of Michael Brown and continuing through 2016 with the shootings of Alton Brown and Philando Castile, these deaths are

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emblematic of a tragic, wider trend with respect to the treatment of African-American males in the U.S. criminal justice system. Sadly, these deaths are nothing new: the abuse, and even murder, of blacks was a historical practice. However, with the advent of camera phones and social media, the incidents are now documented and widely disseminated, thereby bringing the topic into national focus.

The United States has obligated itself to comply with several international treaties designed to rectify and prevent human rights violations and racial discrimination. The stories of Michael Brown and the numerous other victims of police brutality and racial profiling raise serious human rights concerns including "the right to life, the right to security of the person, the right to freedom from discrimination, and the right to equal protection of the law."³ Moreover, these violations implicate the provisions of Article 2 of the International Convention on the Elimination of All Forms of Racial Discrimination (the Convention). The Convention requires States Parties to propose a policy for eliminating all forms of racial discrimination and imposes an obligation to refrain from engaging in any practice of discrimination and to review national and local laws to nullify any discrimination policies.⁴ Having ratified the Convention, the United States has a legal obligation to protect and fulfill these human rights and to comply with the Convention's mandates. However, the attachment of several restrictions to enforcement has crippled the Convention, rendering it nearly without force in the United States.

This Note will discuss whether the deaths of African-American males by law enforcement officers, in light of the long history of racial discrimination in the American criminal justice system, violates the duties and obligations set forth in the Convention. The premise of this Note is that the discriminatory policing tactics employed by law enforcement officers and the disparate treatment of African-Americans within the criminal justice system are contrary to the mandates of the Convention, and without more action by the U.S. Congress, these problems will continue to plague racial minorities. Part II will detail the facts of the shooting of Michael Brown and provide a brief history of racial discrimination in the American criminal justice system. Part III will discuss the Convention's history and relevant provisions and will also provide a detailed look at the domestic laws that are designed to address police use of force. Part IV will analyze the United States' obligations to

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policing and use of force under international law. Lastly, Part V will provide recommendations for complying with international law.

II. THE SHOOTING OF MICHAEL BROWN AND RACIAL DISCRIMINATION IN THE CRIMINAL JUSTICE SYSTEM

A. Mike Brown + Police Brutality

On August 9, 2014, a surveillance camera captured footage of eighteen-year-old Michael Brown stealing cigarillos from a convenience store in Ferguson, Missouri. Police were dispatched, and Officer Darren Wilson arrived at the scene.⁵ An altercation ensued between Wilson and Brown. Brown allegedly reached through the window of the police car Wilson was sitting in and punched Wilson in the face.⁶ Brown was standing at the window of Wilson's car when the officer fired two shots—one grazed Brown's thumb, and the other missed him.⁷ Brown began to run, and Wilson pursued him on foot.⁸ Brown came to a stop and moved toward Wilson, who fired ten more shots at Brown.⁹ Brown was hit twice in the head and died shortly thereafter.¹⁰

Three months later, a St. Louis County, Missouri grand jury voted not to indict Wilson for Brown's death.¹¹ News of the decision set the city ablaze. Peaceful protests outside the courthouse gave way to violent riots. Rioters looted businesses, threw objects at police officers, and vandalized property.¹² While a dozen buildings burned across the city, police officers used tear gas and smoke to disperse the crowds of demonstrators. Governor Jay Nixon deployed the Missouri National Guard to help quell the unrest.¹³

Fueled by the fatal shooting of Trayvon Martin a year earlier, Brown's death and the failure to indict Wilson sparked a nationwide debate on police brutality, excessive use of force, law enforcement accountability, and the relationship between police officers and the communities they serve.

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Unfortunately, the deaths of Brown and Martin are not isolated incidents. Hundreds of men and women are killed by police each year, though the exact number is unknown because no uniform, centralized records are kept.¹⁴ Limited information suggests that African-American men are disproportionately affected by use of excessive or deadly force by police officers.¹⁵ According to Amnesty International, the death of Michael Brown and countless others...