Click to expand Image A general view shows the opening of the 16th session of the Human Rights Council at the United Nations European headquarters in Geneva, on February 28, 2011. © 2011 Reuters

Harsh Criminal Sentencing

Summary

In the United States, state and federal courts regularly impose disproportionate criminal sentences, often in a racially disparate manner. This contributes to the large number of people behind bars in the country. In 2018, people in the state of Florida voted to end laws banning those with felony convictions from voting but questions remain about how to effectively implement the state’s reforms. Thirty-three other states in the United States deny people the right to vote due to their criminal histories. Finally, 30 states continue to impose the death penalty.

Relevant ICCPR Articles

Articles 2, 6, 7, 8, 9, 14 and 26.

Prior Recommendations

In its 2006 Concluding Observations, the Committee reminded the United States of the desirability of abolishing the death penalty, (para. 29), and expressed concern about the use of solitary confinement, noting that its prolonged use cannot be reconciled with the requirement that the aim of the penitentiary system be reformation and social rehabilitation of prisoners (para. 32).

In its 2014 Concluding Observations, the Committee also addressed the death penalty, offering detailed recommendations, including the establishment of a moratorium on the death penalty at the federal level. (para. 8). It also: recommended the United States continue and step up its efforts to robustly address racial disparities in the criminal justice system; reform mandatory minimum sentencing statutes (para. 6); ensure the voting rights of all felons who have fully served their sentences, and improve registration processes (para. 24); and expressed concern again about the US’ use of prolonged solitary confinement, particularly on juveniles and people with mental disabilities (para. 20).

Current US Government Policy or Practice

State and federal jails and prisons continue to hold over 2 million people, with another 4.5 million on probation or parole.[1] Women are the fastest growing correctional population nationwide, increasing by more than 700 percent between 1980 and 2016.[2] Oklahoma incarcerates more women per capita than any other US state.[3] In September, Human Rights Watch documented the lasting harm of jailing mothers pretrial, many of whom simply cannot afford bail, in that state.[4] Many states force prisoners to work for minimal wages, sometimes less than a dollar a day, and often doing jobs that do not help prisoners obtain marketable skills upon release.[5]

In the United States, people often receive life sentences or their equivalent for a range of violent crimes; as well as for property and drug-related offenses. In 2017 then US Attorney General Jeff Sessions rescinded policies instructing prosecutors to avoid charging crimes that would trigger disproportionately long mandatory minimum sentences and were aimed at curtailing racial disparities in sentencing.[6] In 2018, Sessions also rescinded a Justice Department policy giving federal prosecutors discretion to not prosecute marijuana offenses in jurisdictions where marijuana has been decriminalized.[7]

Millions of people still cannot vote due to felony disenfranchisement laws, though in a positive step, Florida voters recently approved a ballot initiative restoring the right to vote for 1.4 million residents with felony convictions.[8] The initiative was one of several that states passed that advanced criminal legal system reform.[9]

The laws of 30 states still allow for the death penalty. In 2018 alone, 25 people in eight states were executed, all in the south and mid-west of the country.[10] US President Donald Trump and former US Attorney General Jeff Sessions have called for the death penalty for drug sellers.[11]

Human Rights Committee General Comments and Related UN Body Recommendations

The Human Rights Committee has stated that state actions that restrict rights “must demonstrate their necessity and only take such measures as are proportionate to the pursuance of legitimate aims in order to ensure continuous and effective protection of Covenant rights.”[12] “Restrictive measures must conform to the principle of proportionality —”[13] a principle reflected in Inter-American Court of Human Rights jurisprudence[14] and emphasized by the UN Working Group on Arbitrary Detention.[15] To the extent possible, prison labor should help prisoners prepare for a return to society and should never seek to cause suffering.[16]

“The criminal justice system should provide a wide range of noncustodial measures, from pre-trial to post-sentencing dispositions. The number and types of noncustodial measures available should be determined in such a way so that consistent sentencing remains possible.”[17]

As a point of comparison, the International Criminal Court, which has jurisdiction over grave crimes such as genocide, may impose up to 30 years or a life sentence but that sentence must be reviewed when the person has served two thirds of it or 25 years in the case of a life sentence.[18]

Recommended Questions

What steps, if any, will the federal government take to ensure the successful restoration of the right to vote in states like Florida?

What more will the federal government, in addition to the small steps taken by passing the First Step Act, do to reform mandatory minimum sentencing; ensure federal criminal sentences are not disproportionate to the offense; and incentivize states to adopt proportionate regimes of criminal sentencing?

Suggested Recommendations

The State Party should restore Justice Department policies affording greater discretion to federal prosecutors in drug cases.

The State Party should take concrete measures to support the right to vote without impediment or discrimination; press state governments to reinstate voting rights to people who have been convicted of felonies and to review with an eye to reforming state policies that deny voting rights to imprisoned persons.

The State Party should review its state and federal criminal sentencing to ensure that all sentences are proportionate to the offense and offender, including with a view to abolishing the death penalty, and should in no circumstances impose the death penalty for drug offenses.

Racial Disparities, Drug Policy, Hate Crimes, and Policing

Summary

Racial disparities permeate every part of the US criminal legal system, with particularly acute problems in drug policy and policing. These disparities violate the United States’ obligation to prohibit racial discrimination. The number of hate crimes has reportedly increased over the past several years.

Relevant ICCPR Articles

Articles 2, 7, 9, 10, 12, 14, 17 and 26.

Prior Recommendations

In its 2014 Concluding Observations, the Committee recommended that the State Party “continue and step up its efforts to robustly address racial disparities in the criminal justice system.” (paras. 6 and 7).

In its 2006 Concluding Observations, the Committee stated the State Party should “continue and intensify its efforts to put an end to racial profiling used by federal as well as state law enforcement officials.” (para. 24); and reminded the State Party “of its obligation under Articles 2 and 26 of the Covenant to respect and ensure that all individuals are guaranteed effective protection against practices that have either the purpose or the effect of discrimination on a racial basis.” (para. 6). It also instructed the United States to “acknowledge its legal obligation under Articles 2 and 26 and ensure that its hate crime legislation, both at the federal and state levels, address sexual orientation-related violence.” (para. 25)

Current US Government Policy or Practice

Racial disparities permeate every part of the US criminal legal system. Black people are 13 percent of the population but close to 40 percent of those in prisons.[19] They are incarcerated at more than five times the rate of white people. Black people use illegal drugs at similar rates to white people but suffer drug arrests at significantly higher rates.[20]

In 2018, police reportedly shot and killed 996 people in the US.[21] Of those killed, whose race is known, 26 percent were black.[22] Of the unarmed people of known race killed by police, 38 percent were black.[23] The Justice Department rolled back efforts to investigate local police departments following credible reports of systemic constitutional violations. Some state governments have taken on this oversight role. Racial disparities in police use of force, arrests, citations, and traffic stops continue.[24]

Multiple organizations[25] and the government,[26] which use different methodologies to collect different types of information about hate crimes, reported an increase in the number of hate-motivated incidents from prior years.

Since 2012, the US has reportedly held defendants in incommunicado detention for long of periods of time, in some cases up to 90 days, on board US Coast Guard boats before bringing them to US shores and prosecuting them for alleged drug crimes. In many cases, the defendants have reported serious mistreatment.[27]

Human Rights Committee General Comments and Related UN Body Recommendations

The Committee has repeatedly reminded States that the obligation of non-discrimination requires protection against discrimination in law as well as in fact.[28] Similarly, the International Convention on the Elimination of all Forms of Racial Discrimination (CERD), which the United States has ratified, defines race discrimination as conduct that has the "purpose or effect" of restricting rights on the basis of race.[29] It proscribes race-neutral practices curtailing fundamental rights that unnecessarily create statistically significant racial disparities even in the absence of racial animus and[30] requires remedial action.[31] In its General Comment 18, the Committee explained that the Covenant’s “Article 20, paragraph 2, obligates States parties to prohibit, by law, any advocacy of national, racial or religious hatred which constitutes incitement to discrimination.”[32]

Recommended Questions

Why do so few incidents of police use of force in the United States lead to findings that officers were at fault, and measures of legal accountability for those responsible?

Since racial disparities in drug arrests cannot be explained by differences in drug usage between racial groups, why do such disparities persist?

Please explain, through detailed reference to data, and not through reference to isolated prosecutions of discrimination in federal courts, how the State Party believes it is upholding its obligation to address racial discrimination in fact in its state and federal criminal legal systems?

What steps if any has the State Party taken to ensure all rights within the Covenant, including the right to life, are enjoyed by all people in the United States, along with equality before the law and equal protection of the law, without discrimination?

How does the US explain the reported prolonged, incommunicado detention, delayed presentment, and mistreatment of hundreds of detainees on board US Coast Guard ships?

Suggested Recommendations

The State Party should increase and strengthen its efforts to investigate and hold accountable local police departments following credible reports of violations under US or international human rights law.

The State Party should collect and publicize on an annual basis nationwide data on incidents of federal and state law enforcement use of force and the race of those affected and law enforcement officers involved, as well as any investigations and all measures of accountability taken.

The State Party should take all effective steps necessary to end the experience of racial discrimination in fact in US state and federal criminal legal systems and should ensure all rights within the Covenant, including the right to life, are enjoyed by all people in the United States, along with equality before the law and equal protection of the law, without discrimination.

Ensure those detained on board US Coast Guard ships are treated humanely and their right to be brought before a judge without unreasonable delay under Article 9 of the Covenant is respected.

Children in the Adult Criminal and Juvenile Legal Systems

Summary

Despite important and meaningful reforms, the United States continues to sentence children to life without the possibility of parole, in violation of its treaty obligations. In addition, children of color face disproportionately harsh treatment in the federal and state criminal legal system. The system-wide prosecution, trial and incarceration of children as adults persists in the United States, often in violation of the principle of proportionality and of the human rights of children.

Relevant ICCPR Articles

Articles 2, 6, 7, 9, 12, 14, 17 and 26.

Prior Recommendations

The Committee has repeatedly called on the United States to ensure that no person under the age of eighteen at the time of offense “is sentenced to life imprisonment without parole, and… adopt all appropriate measures to review the situation of persons already serving such sentences.” (2006 Concluding Observation, para. 34; 2014 Concluding Observation, para. 23).

The Committee has also recommended that the United States “ensure that juveniles are separated from adults during pretrial detention and after sentencing, and that juveniles are not transferred to adult courts. It should encourage states that automatically exclude 16- and 17-year-olds from juvenile court jurisdictions to change their laws.” (2014 Concluding Observation, para. 23).

See above recommendations regarding racial discrimination and the principle of proportionality.

Current US Government Policy or Practice

The juvenile arrest rate has been declining[33] but dramatic racial disparities persist: children of color are disproportionately represented at every stage,[34] and in 37 states rates of incarceration were higher for black children than for white.[35] Between 32,000 and 60,000 children under 18 are estimated to be admitted annually to adult jails.[36] All 50 states continue to prosecute some children in adult criminal courts,[37] and approximately 1,300 people have life without parole sentences for crimes committed under 18.[38]

In 2018, the Washington State Supreme Court ruled that life sentences without parole for crimes committed below age 18 violated the state constitution.[39] In all, 21 states and the District of Columbia now prohibit juvenile life without parole.[40] Also in 2018, California passed a law that ends the sentencing of 14 and 15-year-olds in adult court.[41] In April last year, New York ended the automatic trial of 16 and 17-year-olds in adult court, although children of these—or younger—ages, who are accused of violent crimes, will still begin their cases in adult court with the possibility of transfer to the juvenile system.[42] Other US states, including Florida, continue to mandate the direct prosecution of children in their adult criminal legal systems.[43] In addition, juveniles continue to be subjected to periods of solitary confinement in juvenile facilities as well as in adult state jails and prisons throughout the country.[44]

Human Rights Committee General Comments and Related UN Body Recommendations

In its General Comment 21, para. 13, the Committee states that the Convention requires that “accused juvenile persons shall be separated from adults;” that “cases involving juveniles must be considered as speedily as possible;” and that juveniles shall be “segregated from adults and be accorded treatment appropriate to their age and legal status in so far as conditions of detention are concerned . . . .” The Committee also states its view that the Convention’s “article 6, paragraph 5, suggests that all persons under the age of 18 should be treated as juveniles, at least in matters relating to criminal justice.”

The Committee also recommends that the US “impose strict limits on the use of solitary confinement” and prohibit its use against juveniles and individuals with serious mental disabilities.[45]

Recommended Questions

What steps if any will the federal government take to end juvenile life without parole sentencing in the federal system?

What steps if any will the federal government take to incentivize states to end: 1) juvenile life without parole sentencing; 2) the prosecution and transfer of children to adult courts; 3) the solitary confinement of persons under age 18 in any custodial facility in the country; 4) the disproportionate treatment of children of color?

Suggested Recommendations

The State Party should end the sentencing of juveniles to life without parole in the federal system and provide meaningful incentives to all constituent states to end the practice.

The State Party should ensure that juveniles are separated from adults during pretrial detention and after sentencing, and that juveniles are not either directly prosecuted in or transferred to adult courts.

The State Party should end the solitary confinement of juveniles in all custodial settings.

Poverty and the Criminal Legal System

Summary

In the United States, criminal law and policy often has a disparate impact upon the poor. This is especially the case when states impose costs upon accused and convicted individuals in an attempt to recoup costs associated with running policing systems, jails, courts, and prisons. As many criminal legal systems in the United States attempt to move away from using cash bail, pretrial detention, and other custodial curtailments on liberty, the State Party’s federal and state legal systems are increasingly using artificial intelligence, such as algorithmic risk scores, which can cement racial and income disparities in people’s enjoyment of their rights to privacy and liberty.

Relevant ICCPR Articles

Articles 2, 6, 14, and 26.

Prior Recommendations

In its 2006 Concluding Observations, the Committee expressed its concern regarding the treatment of poor people, and in particular African Americans in the Hurricane Katrina evacuation and reconstruction efforts, and recommended the US increase efforts to “ensure that the rights of the poor, and in particular African-Americans, are fully taken into consideration . . . .” (para. 26).

In its 2014 Concluding Observations the Committee expressed concern about the criminalization of homelessness, including everyday activities such as eating, sleeping, and sitting in particular areas. (para. 19).

Current US Government Policy or Practice

Poor people accused of crimes are often jailed because judges require money bail as a condition of release, forcing people not convicted of any crime to stay behind bars for long periods of time awaiting trial, and resulting in coerced guilty pleas.[46] A movement to reduce the use of money bail is growing but many states, including California—which passed a bill[47] eliminating money bail in August this year[48]—are replacing money bail with risk assessment tools that could entrench discrimination while failing to lower rates of pretrial incarceration.[49]

Many local jurisdictions impose excessive fees and fines for even minor violations of law. If unpaid, these debts can result in disproportionate punishment across poor communities, and arrests that feed a cycle of incarceration and increased poverty.[50] Similarly, some states privatize misdemeanor probation services, which often puts poor people at risk of incarceration because they cannot afford to pay an exorbitant combination of court fines and probation company fees.[51]

Human Rights Committee General Comments and Related UN Body Recommendations

Under Article 2 of the Covenant, persons should not experience discrimination or be disadvantaged before the law due to their economic status. As the Committee has noted in its General Comment 32, “Procedural laws or their application that make distinctions based on any of the criteria listed in article 2, paragraph 1 or article 26 . . . to the enjoyment of the guarantees set forth in article 14 of the Covenant, not only violate the requirement of paragraph 1 of this provision that ‘all persons shall be equal before the courts and tribunals,’ but may also amount to discrimination.” In June 2018, the United Nations special rapporteur on extreme poverty and human rights issued a report sharply criticizing the US for its policies towards the poor.[52]

Recommended Questions

What steps if any is the State Party taking to ensure that algorithmic scoring tools and electronic monitoring are not unnecessarily curtailing the rights to privacy and liberty for persons involved in the criminal legal system?

How can principles of non-discrimination and equality before courts and tribunals be upheld in the United States when poor people are mandated to pay for the costs of their involvement in the criminal legal system, and experience disproportionately harsh consequences when they are unable to pay fines and fees imposed by US criminal legal systems?

Suggested Recommendations

Ensure that algorithmic scoring tools and electronic monitoring do not unnecessarily curtail the rights to privacy and liberty for persons involved in the criminal legal system.

Due to their discriminatory effects, do not allow courts to rely on algorithmic scoring tools in sentencing or in decisions around pre-trial detention and release.

The State Party should press local and state governments to end their reliance on user fees to fund criminal justice and other state systems, and to establish safeguards to ensure that legal financial obligations do not create undue hardship for those who cannot afford to pay.

Rights of Non-Citizens

Summary

United States immigration laws and policies are abusive on a number of levels. The US has also continued to erect new barriers that threaten the right of people to seek asylum from persecution. In deportation proceedings, US law generally affords little or no weight to the rights to home and family unity and to be protected from arbitrary interference with home and privacy. Moreover, the United States has subjected immigrants to prolonged periods of immigration detention, including mandatory detention, has forcibly separated children from their parents after apprehension by immigration authorities, and has detained adults and children, in harsh and difficult conditions, including in conditions involving inadequate medical care that are linked to deaths.

Relevant ICCPR Articles

Articles 2, 9, 12, 17, 23, and 26.

Prior Recommendations

In its 2016 Concluding Observation the Committee expressed concern about the increased level of militarization on the southwest border with Mexico. (para. 27).

In its 2014 Concluding Observations, the Committee recommended that the United States “review its policies of mandatory detention and deportation of certain categories of immigrants in order to allow for individualized decisions; take measures to ensure that affected persons have access to legal representation; and identify ways to facilitate access to adequate health care, including reproductive health-care services, by undocumented immigrants and immigrants and their families who have been residing lawfully in the United States for less than five years.” (para. 15).

Current US Government Policy or Practice

More than 2,500 families were forcibly separated in 2018 after entering irregularly at the US border as the Trump administration ramped up criminal prosecutions of parents traveling with children.[53] In one of many cases that came to symbolize the cruelty of the Administration’s policies, a 10-year-old girl with Down Syndrome was separated from her mother. Though a federal court and tremendous public outcry put a stop to mass separations in late June, reunifications of hundreds of families lagged for months.[54] According to media reports families continued to be separated on a smaller scale after Trump issued an executive order supposedly ending the practice.[55] Ramped-up criminal prosecutions for illegal entry continued. Mental health professionals warned that separation was very likely to cause trauma, both immediate and long-lasting.[56]

Hundreds of parents were deported separately from their children.[57] A June administrative ruling by former Attorney General Jeff Sessions placed new restrictions on access to asylum for people claiming persecution by non-state actors, including victims of domestic and gang violence.[58] In November, the administration issued an interim final rule barring migrants who enter between ports of entry from seeking asylum, in violation of international human rights law and in apparent violation of US law as well;[59] it was temporarily enjoined by a federal judge.[60] A march by migrants on November 26 seeking asylum at the US-Mexico border ended with clashes between some migrants and US border agents, who lobbed teargas projectiles at groups of migrants that included young children.[61]

The US Supreme Court upheld an executive order issued by Trump banning travel to the US from several predominantly Muslim countries,[62] which Human Rights Watch and those challenging the ban in court said was discriminatory.[63] The administration also announced Temporary Protected Status would expire for almost 400,000 immigrants from Sudan, Haiti, El Salvador, Nicaragua, Honduras, and Nepal from late 2018 to early 2020, confronting most with likely deportation and separation from home and family.[64] Arrests and deportations of undocumented people arrested in the interior of the United States, often after minimal contact with the criminal justice system or in large-scale workplace raids continued to mount without regard to their rights to home and family.[65]

Immigration authorities sought to detain more people in the already-sprawling immigration detention system. Immigration authorities sought to remove legal limits to detaining children in families indefinitely.[66] Of 15 recent deaths in immigration detention, Human Rights Watch found that eight were linked to poor medical care.[67]

The fate of almost 800,000 young immigrants who hold work permits and protection from deportation under Deferred Action for Childhood Arrivals (DACA) remained uncertain as court challenges continued around the administration’s 2017 decision to end the program. Proposed regulatory changes to the definition of “public charge” under US immigration law threatened to disrupt essential public health and benefit programs supporting many US citizen children of non-citizens.[68] A variety of policies, including changes to federal rules that sought to limit asylum for victims of gang and domestic violence, [69]and new “Migration Protection Protocols” requiring asylum seekers seeking to enter the United States from Mexico to remain in that country while their claims are adjudicated, threatened their right to seek asylum from persecution in the United States.[70]

Human Rights Committee General Comments and Related UN Body Recommendations

US deportation and detention policies threaten family rights

The Committee in General Comment 15 has stated that the right to family unity entails limits on states’ power to regulate immigration,[71] and, in its General Comment 19, that the right to found a family under the Covenant includes the right “to live together.”[72] In Winata v. Australia, the Committee found a violation where Australia sought to deport two Indonesian nationals whose 13-year-old son, Barry, had been born in, and had become a citizen of, Australia. The Committee held that in the circumstances of that case, Australia would have to demonstrate that it had interests more compelling than the mere enforcement of immigration laws to justify deporting the child’s parents.[73]

The Committee has since applied the same analysis in other cases, with varying results.[74] One clear constant in the Committee’s jurisprudence is that any interference with a person’s family caused by deportation is inevitably “arbitrary” if the state fails to weigh that human rights impact in the balance against its own interests in deporting the person. This is precisely what US immigration law does as a matter of routine.

In its recent decision to separate families arriving at the US border, the US federal government failed to weigh the harm to immigrant families before instituting its harsh separation and detention policies, the harmful effects of which are being felt to date by children and their parents. The UN special rapporteur on the rights of non-citizens has stated, “[D]eportation is justified only if the interference with family life is not excessive compared to the public interest to be protected.”[75]

US deportation law and policy may threaten rights to protection of privacy and home

The Committee has found that the definition of “one’s own country” under Article 12(4) of the Covenant is broader than the concept of a person’s country of nationality.[76] In two cases involving people who were brought to Australia and Canada from other countries as young children, the Committee found a violation of Article 12(4) where the state sought to deport those individuals later on in life.[77] The facts in both of these cases are closely analogous to the situation of US “Dreamers.” The Human Rights Committee has stated in its General Comment 16 that the term “home” as defined in Article 17 is “to be understood to indicate the place where a person resides or carries out his usual occupation.”[78]

Restrictions on the access to asylum in the United States threaten to breach the obligation of non-refoulement

In its General Comment 31, the Committee explained that “the article 2 obligation entails an obligation not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by articles 6 and 7 of the Covenant, either in the country to which removal is to be effected or in any country to which the person may subsequently be removed.[79] The non-refoulement obligation applies to indirect acts that have the effect of returning people to harm, including “detention in poor conditions for indefinite periods, refusing to process claims for asylum or prolonging them unduly, or cutting funds for assistance programmes for asylum seekers,”[80] as well as returns to third countries that in turn deport people to countries where they would face irreparable harm.[81]

US immigration detention threatens respect for dignity of persons, rights of children

The Committee has noted in its General Comment 35 that “detention must be justified as reasonable, necessary and proportionate in the light of the circumstances and reassessed as it extends in time.”[82] The United Nations Working Group on Arbitrary Detention has argued that “immigration detention should gradually be abolished.... If there has to be administrative detention, the principle of proportionality requires it to be a last resort.”[83]

In its General Comment 35, the Committee noted that “decisions regarding the detention of migrants must also take into account the effect of the detention on their physical or mental health”[84] The inadequate medical care provided to immigrants in certain cases violates the Committee’s requirement that State Parties provide “adequate medical care during detention.”[85]

Immigration detention of children, alone, or with their families is inconsistent with international standards, particularly the fundamental principle—reflected in both international and US law—that the “best interest of the child” should govern the state’s actions toward children.[86] For these and other reasons, international standards recognize that children should not be detained solely because of their or their parents’ immigration status.[87] Moreover, deprivation of liberty has a negative effect on children’s capacity to realize other fundamental rights, including the rights to education, health, and family unity, and can result in constructive (or indirect) refoulement.[88]

Recommended Questions

How can the State Party square its treaty obligations with its policies and practices that have: 1) led to the deaths of immigrant detainees due to inadequate medical care and that have 2) separated families during the course of detention and deportation policies and that have 3) effected the detention of children?

What steps if any will the State Party take to ensure the non-refoulement of people seeking asylum from persecution in the United States?

What steps if any will the State Party take to reform its deportation laws and policies to ensure that individuals’ rights to family, and non-interference with home and privacy are adequately weighed against any legitimate government interest in deporting that person?

Suggested Recommendations

The State Party should review its policies of mandatory detention and deportation in order to allow for individualized decisions in both instances.

The State Party should reverse all policies that put at risk of refoulement refugees seeking asylum from persecution in the United States.

The State Party should ensure that immigration detention is only used if reasonable, necessary and proportionate in the light of the circumstances and that there are mechanisms to reassess its proportionality as it extends in time. The State Party should take measures to end immigration detention of persons below the age of 18 when the sole basis of detention is immigration status.

Women’s and Girls’ Health

Summary

The United States has a patchwork of healthcare coverage and access that leaves many women and girls uninsured, and contributes to an environment where women die at high rates, compared to other similarly resourced countries, from preventable maternal and gynecological cancer related deaths. Recently, state and federal authorities have adopted a variety of laws and policies that further threaten women’s and girls’ rights to health.

Relevant ICCPR Articles

Articles 2, 3, 6 and 26.

Prior Recommendations

In its 2006 Concluding Observations, the Committee recommended that the United States, “should take all steps necessary, including at state level, to ensure the equality of women before the law and equal protection of the law, as well as effective protection against discrimination on the ground of sex, in particular in the area of employment.” (para. 28).

Current US Government Policy or Practice

This Committee raised concerns in 2014 that the Affordable Care Act (ACA) did not extend healthcare coverage to millions of undocumented immigrants. The ACA did however create access to care for millions of people. States that expanded Medicaid eligibility saw the greatest gains in coverage. The ACA has been targeted consistently for repeal, and a tax reform that eliminated the individual mandate could lead to 13 million people to be without insurance coverage.[89] In addition, the Medicaid program, private insurance subsidies, non-discrimination protections for lesbian, gay, bisexual, and transgender (LGBT) people, and other key elements of the ACA were targets of federal and state action to restrict access to health care. Many states, with federal support, have imposed or are seeking waivers to impose work requirements, drug testing, and other barriers to Medicaid eligibility for low income individuals.

Human Rights Watch documented the harmful effects of the Trump administration’s policies on access to health care for LGBT individuals, including strengthening of moral and religious objections to provision of health care without adequate consideration of protections from discrimination and the barriers to health care, including HIV prevention and treatment, for transgender women in the US.

Human Rights Watch has also documented[90] how failure to expand Medicaid eligibility, along with a mix of other policies and practices, in Alabama, has contributed to a high rate of preventable cervical cancer deaths that disproportionately impacts Black women in the state. The Alabama public health care system is not structured to ensure consistent access to care for poor women. Alabama, along with Texas, has the lowest Medicaid eligibility levels in the nation and is seeking a waiver to make eligibility even more difficult.[91]

The US is also taking steps that would reduce access to other safety net programs and insurance coverage for reproductive healthcare services or which would allow discrimination in the healthcare system.

Congress passed legislation in 2017 making it easier for states to restrict Title X grants by creating eligibility requirements that could exclude certain family planning providers, like Planned Parenthood.[92] Title X is a national family planning program that funds services to more than 4 million Americans. The Department of Health and Human Services (HHS) proposed a “gag” rule in May to stop doctors receiving Title X funding from giving women the full range of pregnancy options and to eliminate a requirement that doctors give neutral and factual information to pregnant women.[93]

In 2017, HHS issued a rule exempting nearly any employer claiming religious[94] or moral[95] objections to birth control from the ACA’s requirement that they provide contraceptive coverage as part of their employee health insurance plans. In March 2018, it proposed another rule that would dramatically expand healthcare providers’ ability to turn away patients based on religious or moral objections, including women seeking reproductive health services and lesbian, gay, bisexual, and transgender people.[96] At time of writing, the rule had not been finalized.

This is coupled with actions taken at the state level in several jurisdictions to adopt highly restrictive laws on abortion and reproductive health.[97]

The US has also adopted a policy that strips US health funding from foreign nongovernmental organizations if they use funds from any source to supply information about abortions, provide abortions, or advocate to liberalize abortion laws. Human Rights Watch research in 2017 demonstrated that some organizations providing essential health services are already reporting negative impacts.[98]

Human Rights Committee General Comments and Related UN Body Recommendations

The right to health is inseparable from provisions on the right to life and the right to be free from discrimination, protections included the ICCPR. The Committee, in its most recent General Comment 36, stated clearly that “The duty to protect life also implies that States parties should take appropriate measures to address the general conditions in society that may give rise to direct threats to life or prevent individuals from enjoying their right to life with dignity.”[99] The Committee further states these general conditions may include health care and that the right to life may require developing strategic plans to advance enjoyment of the right to life, such as “for improving access to medical examinations and treatments designed to reduce maternal and infant mortality."[100] It also has made clear that restrictions on women’s or girls’ ability to seek abortion must not “jeopardize their lives, subject them to physical or mental pain or suffering which violates article 7, discriminate against them or arbitrarily interfere with their privacy,” and that new barriers to accessing abortion should not be introduced, “including barriers caused as a result of the exercise of conscientious objection by individual medical providers.”[101]

Recommended Questions

Why do so many laws and policies related to health and healthcare seek to restrict or heavily regulate services used nearly exclusively by women and girls?

Millions of people living in the United States lack healthcare coverage, exacerbating barriers to care and worsening health outcomes for many already marginalized populations. What if anything is the State Party doing to address this lack of access to care, and does it believe recent policies and laws that have the effect of restricting access to some key services conform with its obligations?

Please explain, with detailed reference to data, whether and how the State Party believes it is upholding its obligation to protect the right to life, in relation to deaths that could reasonably be prevented through access to healthcare, with a focus on preventable maternal deaths and deaths from cervical and other preventable gynecological cancers.

Suggested Recommendations

The State Party should take steps to increase access to all necessary health services to reduce preventable deaths, such as infant and maternal deaths, deaths from HIV, and preventable gynecological cancers.

The State Party should collect and publicize data on the impact range of recent laws, policies and regulations on unplanned pregnancies rates, maternal mortality and morbidity and infant mortality.

The State Party should take all effective steps necessary to end discrimination in access to healthcare.

Sexual Orientation and Gender Identity

Summary

A variety of policies in state and federal law heighten discrimination against persons based on sexual orientation and gender identity.

Relevant ICCPR Articles

Articles 2 ,17, 18, 19, 21, 22 and 26.

Prior Recommendations

The Committee recommended in its 2006 Concluding Observations that the United States “should acknowledge its legal obligation under articles 2 and 26 to ensure to everyone the rights recognized by the Covenant, as well as equality before the law and equal protection of the law, without discrimination on the basis of sexual orientation. The State Party should ensure that its hate crime legislation, both at the federal and state levels, address sexual orientation-related violence and that federal and state employment legislation outlaw discrimination on the basis of sexual orientation.” (para. 25).

Current US Government Policy or Practice

In February 2017, the Departments of Justice and Education withdrew guidance clarifying that discrimination against transgender students constitutes sex discrimination under federal law. The withdrawal of these protections jeopardizes transgender students’ safety, health, privacy, and ability to learn.[102] LGBT students also experience bullying and harassment in schools; restrictions on freedom of expression, assembly, and association; and restrictions on access to information, particularly in seven states with laws prohibiting LGBT-inclusive curricula in sexuality education.[103]

In July 2017, President Trump announced on Twitter that transgender people would no longer be permitted to serve in the US military. The ban has been blocked by federal courts and has not yet taken effect.[104]

The Department of Health and Human Services has announced plans to roll back a federal rule clarifying that the Affordable Care Act’s prohibition on sex discrimination includes discrimination based on gender identity. LGBT people face significant barriers when seeking health care in the US, and these rule changes will exacerbate existing health care disparities.[105]

In 2018, the Bureau of Prisons announced it would default to housing transgender prisoners according to their sex assigned at birth, a decision which will exacerbate the alarming rates of physical and sexual abuse that transgender persons experience in detention.[106]

In 2018, Oklahoma, Kansas, and South Carolina enacted laws permitting adoption and foster care providers asserting a religious objection to refuse to place children with LGBT people. Similar laws exist in Alabama, Michigan, North Dakota, South Dakota, Texas, and Virginia. A similar provision was added to an appropriations bill in the US House of Representatives but did not become law.

Mississippi permits a wide range of service providers to refuse goods and services to LGBT people based on the provider’s religious or moral objections. Tennessee allows counselors and therapists to decline to work with LGBT patients if they assert a religious or moral objection. These “license to discriminate” laws deprive LGBT people of goods and services, make them reluctant to seek out goods and services, and harm their dignity.[107]

Federal law does not expressly prohibit discrimination based on “sexual orientation” or “gender identity” in employment, education, housing, or health care. Nineteen states have laws expressly banning discrimination based on both sexual orientation and gender identity in employment, housing, and public accommodations.[108] Wisconsin and New York prohibit discrimination based on sexual orientation but not gender identity, and Utah only prohibits discrimination in employment and housing.[109] Michigan, New York, and Pennsylvania interpret their statutory prohibition on sex discrimination to include discrimination based on sexual orientation and/or gender identity.[110]

Human Rights Committee General Comments and Related UN Body Recommendations

The Human Rights Committee has repeatedly recognized that discrimination based on sexual orientation and gender identity is impermissible under the ICCPR.[111]

The Human Rights Committee has recognized that LGBT youth should be safe from violence and bullying in school environments. Article 9 of the ICCPR guarantees the right to liberty and security of person. This encompasses an obligation on the part of governments to protect people’s right to personal security against attacks by private persons.[112] Under Article 24 of the ICCPR, the US government has an additional responsibility to undertake “such measures of protection” to protect the rights of children “as are required by [their] status as minor[s].”[113] The Human Rights Committee has previously expressed concern about violence and harassment against LGBT people.[114]

Article 17 of the ICCPR specifies that “[n]o one shall be subjected to arbitrary or unlawful interference with [their] privacy.”[115] State efforts to guarantee that right should include steps to respect the gender identity of transgender people and refrain from classifying or treating transgender individuals in a manner that could “out” them against their will to other members of the community.

The UN Human Rights Committee has clarified that the freedom of thought, conscience, and religion does not protect religiously motivated discrimination against women, or racial and religious minorities.[116] It has urged states considering restrictions on the manifestation of religion or belief to “proceed from the need to protect all rights guaranteed under the Covenant, including the right to equality and non-discrimination.”[117]

Article 19 of the ICCPR protects the freedom of expression and freedom to seek, receive, and impart information.[118] The ICCPR also recognizes the right of peaceful assembly under Article 21 and the right to freedom of association with others under Article 22.[119] The many obstacles that LGBT youth encounter when forming or operating LGBT student groups threaten to unduly limit or restrict LGBT students’ rights to expression, association, and assembly in schools. The absence of education related to LGBT issues and the continued existence of so-called “no promo homo” laws undermines the right to freedom of expression for both students and teachers. The UN Human Rights Committee, reviewing a conviction under Russia’s law prohibiting “propaganda of homosexuality among minors,” concluded that “there is no doubt that there has been a restriction on the exercise of the author’s right to freedom of expression” under such laws and that the restriction constituted a violation of Article 19.2 read in conjunction with Article 26 of the Covenant.[120]

Recommended Questions

As it weakens sex discrimination protections for LGBT people, what concrete steps if any is the federal government taking to prohibit discrimination based on sexual orientation and gender identity in keeping with Articles 2 and 26 of the ICCPR?

What steps if any is the government taking to ensure that religious exemptions do not infringe on the rights of LGBT individuals?

Suggested Recommendations

The State Party should expressly prohibit discrimination on the basis of sexual orientation and gender identity in employment, education, housing, health care, and other relevant domains.

The State Party should withdraw its ban on transgender military service.

The State Party should withdraw its policy housing transgender prisoners according to their sex assigned at birth and undertake a holistic assessment that respects a person’s gender identity.

The State Party should strengthen protections for LGBT youth in schools by enacting LGBT-inclusive anti-bullying laws, repealing no promo homo laws, promulgating LGBT-inclusive curricula, and prohibiting discrimination against LGBT youth in schools.

The State Party should press states to repeal “license to discriminate” laws that permit religious or moral objectors to deny LGBT people goods and services they provide to the general public.

Surveillance and Data Protection

Summary

The United States engages in a variety of surveillance methods at the federal, state, local, and tribal levels that may constitute unnecessary or disproportionate infringements on the right to privacy, or that may not be done in accordance with clear, publicly accessible laws. US federal laws also provide only weak and incomplete protections for the privacy of personal data. Moreover, US law provides inadequate access to remedies for individuals who may have experienced a violation of their right to privacy under Article 17.

Finally, US law and policy is especially problematic in protecting the rights of persons subjected to US surveillance executed outside the territory of United States. Due to the global reach and routing of internet communications, including those sent to, from, or even within the United States, such persons may be located anywhere in the world—including in the US.

Relevant ICCPR Articles

Articles 2 and 17.

Prior Recommendations

In its 2006 Concluding Observations, the Committee instructed the United States to “ensure that any infringement on individual’s rights to privacy is strictly necessary and duly authorized by law, and that the rights of individuals to follow suit in this regard are respected.” (para. 21).

In its 2014 Concluding Observations, the Committee expressed detailed concerns about United States surveillance and data practices and recommended that the United States, inter alia, “Take all necessary measures to ensure that its surveillance activities, both within and outside the United States, conform to its obligations under the Covenant, including article 17; in particular, measures should be taken to ensure that any interference with the right to privacy complies with the principles of legality, proportionality and necessity, regardless of the nationality or location of the individuals whose communications are under direct surveillance. . . .” (para. 22).

Current US Government Policy or Practice

Since 1981, US intelligence agencies have had the power under Executive Order 12333 to execute surveillance techniques outside the US that may entail massive communications monitoring—including of correspondence or other data belonging to people within or outside the US—and are not subject to judicial or other independent authorization.[121] Executive Order 12333 was the subject of comment during the second cycle of the Universal Periodic Review of the United States, but the Order and its potential for abuse remain unchanged.[122] In 2017, Human Rights Watch revealed a US government policy allowing unknown forms of monitoring under Executive Order 12333 of people in the US whom the government regards as “homegrown violent extremists” based on criteria it has not disclosed.[123]

In January 2018, Congress re-authorized Section 702 of the Foreign Intelligence Surveillance Act, a law permitting the warrantless surveillance of foreign people and entities overseas, as well as the capture and searching of the communications of people in the US in the process.[124] Under laws such as Section 702 and Executive Order 12333, the US continues to provide significantly weaker protections for the right to privacy for “non-US persons.”[125]

Under the Supreme Court’s 2012 ruling in Clapper v. Amnesty, a remedy against abuse in the surveillance context is not meaningfully available. The decision effectively requires plaintiffs show that they have been or will be monitored in order to establish standing to challenge the legality of a surveillance law or practice. Due to the secretive nature of intelligence surveillance establishing these facts is virtually impossible.

After Clapper, one of the few means by which surveillance might be established is in the context of a criminal prosecution, when defendants have rights to discover and challenge how the government obtained evidence. However, in January 2018, Human Rights Watch reported that US authorities may be failing to notify criminal defendants about the use of secret intelligence surveillance or other potentially controversial monitoring to obtain evidence in their cases, instead deliberately concealing the true origins of information by finding alternative ways to obtain it.[126] This practice, known as “parallel construction,” can prevent legitimate rights-based challenges.

The director of National Intelligence reported in May 2018 that the number of telephone call records that intelligence authorities collect under the USA Patriot Act more than tripled in 2017, to more than 534 million.[127] The next month, the National Security Agency revealed that it was deleting years’ worth of these records after receiving data it “was not authorized to receive.”[128]

In March 2018, Congress adopted the Clarifying Lawful Overseas Use of Data (“CLOUD”) Act, which allows foreign governments (pursuant to agreements with the US executive branch) to demand data from US companies under weak and incomplete rights standards.[129] At time of writing, the US was negotiating an agreement with the United Kingdom under the law, which would empower the UK to demand data under standards lower than those required by the US Constitution. The UK would then be able to pass this data back to the US, enabling US authorities to evade domestic privacy laws.

Federal legal protections for personal data held by private companies remain insufficient,[130] as demonstrated by data analysis firm Cambridge Analytica’s massive access to Facebook users’ data.[131] Regarding most types of personal data, individuals lack rights to transparency about, or correction or deletion of, information held by other entities, or easy access to effective remedies for abuses.

In a positive development, the Supreme Court decided in June 2018 in Carpenter v. United States that police need a warrant for access to extensive historic mobile phone location data, which reveals a person’s past movements and may be highly sensitive.[132]

Human Rights Committee General Comments and Related UN Body Recommendations

Martin Scheinin, then-UN special rapporteur on human rights and counter-terrorism, stated in 2013 that the United States has “been involved, and continue[s] to be involved, in activities that are in violation of [its] legally binding obligations under the [ICCPR].” He asserted that US surveillance lacks an adequate legal basis, intrudes into the “inviolable core of privacy,” is not necessary in a democratic society, leaves room for unfettered discretion, is disproportionate with respect to its benefits, and is open to abuse.[133]

With regard to the problematic situation by which States Parties may engage in extraterritorial human rights abuses due to their interpretation of their surveillance powers, the UN special rapporteur on the promotion and protection of the right to freedom of opinion and expression, while noting problematic United States law on this point, has raised “serious concern with regard to the extra-territorial commission of human rights violations and the inability of individuals to know that they might be subject to foreign surveillance, challenge decisions with respect to foreign surveillance, or seek remedies.”[134]

With regard to personal data protection, the Committee has explained in its General Comment 16 that “In order to have the most effective protection of his private life, every individual should have the right to ascertain in an intelligible form, whether, and if so, what personal data is stored in automatic data files, and for what purposes. Every individual should also be able to ascertain which public [authorities] or private individuals or bodies control or may control their files. If such files contain incorrect personal data or have been collected or processed contrary to the provisions of the law, every individual should have the right to request rectification or elimination.”

Recommended Questions

Will the State Party declassify and publish all policies and legal interpretations concerning surveillance powers under Executive Order 12333?

Will the State Party ensure that in every criminal prosecution in which US authorities have obtained information through surveillance activities, the defendant receives timely notice and an opportunity to challenge the legality of the monitoring regardless of whether the information was later re-obtained in a different way?

What steps will the State Party take to increase federal protections for personal data, including that held by private companies, in law and practice?

Suggested Recommendations

The State Party should respect the right to privacy of non-US persons outside the United States. Due to the nature of global communications, this will also help ensure respect for US persons’ rights.

The State Party should ensure that authorities only engage in surveillance when specifically authorized by a judge or similarly independent body, and when the activity is necessary and proportionate to achieving a legitimate aim.

The State Party should facilitate greater congressional and judicial oversight and review of intelligence surveillance activities.

The State Party should prohibit authorities from engaging in or requesting parallel construction. Any surveillance leading to information that informs a criminal investigation should be disclosed to the defendant.

National Security

Summary

The United States reportedly changed its policy with respect to the use of armed drones without public notice – which already implicates the right to life – by eliminating the requirements that the individual targeted pose an “imminent threat” to the United States and that there be “near certainty” the target is present at the attack site. The US has assisted non-state armed groups running detention facilities in northern Syria and has transferred detainees under unclear processes to safeguard against abuse to several countries. The US also continues to hold 40 men at the Guantanamo Bay detention facility, 31 of them indefinitely without charge, and was reportedly considering transferring new detainees there.

Relevant ICCPR Articles

Articles 2, 4, 6, 7, 9, and 14.

Prior Recommendations

In 2006, the Committee offered detailed recommendations related to detentions at the Guantanamo Bay detention facility, transfers of detainees to the custody of other governments or forces, and accountability for the use of torture and mistreatment after the September 11, 2001 attacks on the US World Trade Center. (paras. 14, 15, 16, 18, 20, 21). Specifically, it recommended that the United States “take all necessary measures to ensure that individuals, including those it detains outside its own territory, are not returned to another country by way of inter alia, their transfer, rendition, extradition, expulsion or refoulement if there are substantial reasons for believing that they would be in danger of being subjected to torture or cruel, inhuman or degrading treatment or punishment.” It also recommended that the US have mechanisms in place to ensure credible investigations of torture and mistreatment of persons transferred in these ways; such transfers are adequately monitored; and that victims of mistreatment or torture in such contexts have an effective remedy. (para. 16).

In 2014, the Committee reiterated its recommendation that the US strictly apply the absolute prohibition against refoulement under Articles 6 and 7 of the Covenant; expedite the transfer of Guantanamo detainees designated for transfer out of the facility; review the cases of those it continues to detain; end detention without charge or trial at Guantanamo; and ensure that any detainees charged with crimes are prosecuted in the criminal justice system rather than military commissions and are afforded fair trial guarantees. (para. 13, 21).

The Committee also urged the US to revisit its position regarding legal justifications for the use of deadly force through drone attacks, urging the US to ensure that any use of armed drones fully complies with obligations under Article 6 of the Covenant; that the US disclose the criteria used for targeting in drone strikes; provide for independent supervision and oversight in their use; take all feasible precautions to protect civilians; conduct independent, impartial, prompt and effective investigations of violations of the Covenant, and in such cases, establish accountability and provide victims or their families with an effective remedy. (para. 9).

Current US Government Policy and Practice

The US has been assisting Syrian Democratic Forces (SDF) to run and secure detention facilities in northern Syria where, as of July 2018, the SDF were holding nearly 600 men from 47 countries accused of being Islamic State (ISIS) fighters or members.[135] The US had also transferred[136] at least eight[137] detainees from SDF custody to Lebanon, seven to Macedonia, and other foreign nationals[138] to Iraq. One dual US-Saudi citizen was held in US custody for over a year[139] before the US, pressured through litigation, released him. The US was also reportedly considering transferring hundreds more detainees from SDF custody to Iraq, Tunisia, other countries, and possibly Guantanamo Bay for detention.[140] It was not clear what kind of process to safeguard against abuse the US was providing detainees transferred, but the transfers raised concerns that detainees may face torture, ill-treatment or unfair trial, and not have an opportunity to challenge their transfers before they occur.[141]

The US continues to hold 31 men indefinitely without charge at Guantanamo, all of whom have been there for 12 years or longer. It also continued to hold 7 men for trial for alleged terrorist offenses, including the September 11, 2001 attacks on the US, in Guantanamo’s military commissions system. The military commissions do not meet international fair trial standards and have been plagued by procedural problems and years of delay. Two men convicted by the commissions are serving their sentences at Guantanamo.[142] The US has still not adequately accounted for its past use of torture. It has not adequately investigated or prosecuted those responsible or provided redress to victims.[143]

Human Rights Committee General Comments and Related UN Body Recommendations

In 2014, the UN Committee Against Torture, in their Concluding Observations reiterated that indefinite detention at Guantanamo constitutes per se a violation of the Convention against Torture, urged the US to end detentions there, comply with non-refoulement obligations, and conduct thorough and credible investigations into past use of torture and mistreatment.[144]

Recommended Questions

What laws or policies govern the US transfer of detainees to the custody of other governments or forces, including what safeguards are used to ensure no violations of the Covenant occur as a result of such a transfer. Can detainees challenge the decision to transfer?

Since continued indefinite detention without charge at Guantanamo violates the State Party’s Convention obligations, when will the detention facility there be closed, individuals held there transferred to safe countries, or properly charged with a criminal offense and provided fair trials?

What if any steps have been taken to ensure that US use of armed drones is consistent with Article 6? Specifically, have any steps been taken to disclose publicly the legal basis for identifying targets, to protect civilians in target areas, and to conduct independent, impartial, thorough and transparent investigations of potential violations of the Covenant, including providing redress to victims and their families where appropriate?

Suggested Recommendations

The State Party should strictly apply the absolute prohibition against refoulement including whenever it plays any kind of material role in the custody, control, or extraterritorial transfers of detainees, and ensure people have an opportunity to contest their transfers through fair process.

The US has made progress in reducing the population at Guantanamo, but it should end indefinite detentions without charge there and ensure those who are accused of wrongdoing are prosecuted in a fair system, not the military commissions at Guantanamo. It should also independently investigate and prosecute those responsible for torture and Ill-treatment of detainees in US custody after the September 11, 2001 attacks and cooperate with international tribunals investigating the same incidents.

Disclose the legal and policy framework for the use of armed drones, including the selection and identification of targets, methods of investigation to ensure accountability, and any process for providing redress to victims and their families in case of violations.

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