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Article 1(d) of the Convention. 1. In his statement to the Conference Committee in 2002, the Government representative addressed the "question whether persons imprisoned for participating in strikes considered legal by ILO standards, but illegal under United States law, might be required to perform prison labour prohibited by the Convention. This situation could occur under United States law for certain non-essential public or private sector workers, such as teachers, who disobeyed a court order enjoining strike activity and who were subsequently imprisoned for being in contempt of court". After a thorough examination of federal and state prison law and practice, the Tripartite Advisory Panel on International Labour Standards (TAPILS) had found that the imprisonment of strikers for contempt of court was a rare occurrence in the United States. Furthermore, persons jailed under these circumstances were considered "pre-trial detainees" rather than ordinary prisoners, and "Federal Bureau of Prisons regulations applicable to all federal prisons, as well as many state and local prisons, prohibited the imposition of forced or compulsory labour on pre-trial detainees". Federal guidelines developed by the Department of Justice urged all other state and local prisons to apply the same prohibition of forced labour. In addition, the American Corrections Association (ACA), the private organization most concerned with state and local prison practices, had developed accreditation standards that were nearly identical to the Bureau of Prisons regulations and the Department of Justice guidelines. All of these regulations and guidelines indicated that pre-trial detainees could not be required to work, other than doing housekeeping tasks in their own cells or in the community living area. TAPILS had been unable to find a single instance in which labour was exacted contrary to these guidelines. As to the possibility of contempt of court being classified as either civil or criminal, TAPILS had examined in great detail the law and practice with regard to contempt of court, including an examination of actual instances in which individuals had been sent to jail as a result of contempt orders in labour strikes. It had determined that, with regard to labour strikes, the treatment of individuals jailed as a result of criminal contempt did not differ from that of individuals jailed for civil contempt.

2. The Committee has taken due note of these indications. It also notes from "Prisoners in 2003", the US Department of Justice Bureau of Justice Statistics Bulletin of November 2004, that out of a total of 2,085,620 persons held in state or federal prisons or in local jails on 31 December 2003, only 161,673 were in the custody of federal prisons, while 1,225,175 were in state prisons and 691,301 in local jails. According to the Federal Bureau of Prisons Weekly Population Report of 18 November 2004, the Federal Bureau of Prisons was responsible for the custody and care of a total of 181,405 federal offenders, 153,793 of which were confined in Bureau-operated correctional institutions and detention centres, while the remaining 27,612 persons were confined in privately operated prisons, detention centres, community correction centres, and juvenile facilities, as well as some facilities operated by state or local governments. It would appear that these 181,405 persons came under the scope of the Federal Bureau of Prisons regulations, while a ten times higher number of persons was held elsewhere in state prisons and local jails, where these regulations do not apply and neither the Department of Justice guidelines, nor the ACA standards are binding as a matter of law, so that state and local laws and regulations prevail.

3. The Committee is fully appreciative of the conclusions reached by TAPILS with regard to actual practice in the treatment of persons sent to jail as a result of contempt orders in labour strikes. Nevertheless, under its terms of reference, the Committee is bound to ascertain the compliance of both law and practice with ratified Conventions. It accordingly requests the Government to supply further information and explanations regarding relevant state legislation, such as the following, including any measures taken or contemplated to ensure their conformity with the Convention.

Michigan

Chapter 423, section 202 of the Michigan Compiled Laws [Public Employment Relations, Act 336 of 1947] provides: "Sec. 2. A public employee shall not strike and a public school employer shall not institute a lockout." Under section 202a of Chapter 423, a public school employer may bring an action to enjoin a strike by public school employees in violation of section 2 in the circuit court for the county in which the affected public school is located. A court having jurisdiction of an action brought under this subsection shall grant injunctive relief if the court finds that a strike has occurred. Failure to comply with an order of the court may be punished as contempt (subsection 10). It appears from Chapter 600, sections 1715 and 1845, read together with Chapter 801, sections 1 and 10(1) of the Michigan Compiled Laws, that punishment for contempt may be imprisonment in a county jail, where an obligation to work may be established by resolution of the county board of commissioners for prisoners over the age of 18 years under a sentence of imprisonment, capable of performing manual labour.

Missouri

The Missouri Revised Statutes, at section 295.010 of Chapter 295, includes transportation among the utilities declared to be life essentials of the people; under section 295.180, such utilities may be taken over and operated by the state where there occurs a strike. Thereupon, such strike becomes unlawful under section 295.200, and wilful disobedience of a court injunction to enforce any provision of this chapter or any rule or regulation prescribed by the governor thereunder may be punished as for criminal contempt under subsection 6, read together with section 526.220 of Chapter 526 (Injunctions) and section 476.110 of Chapter 476 (Courts-General Provisions). Under section 476.120, punishment for contempt may be by fine or imprisonment in the jail of the county where the court may be sitting. Under subsection 4 of section 217.543 of Chapter 217, the jailer of any city not within a county having custody of pre-trial detainees or persons serving sentences for violation of state or local laws shall require the inmate or detainee to participate in work or educational or vocational programmes and other activities that may be necessary to the supervision and treatment of the inmate or detainee.

Nevada

Under Title 23, Chapter 288 of the Nevada Revised Statutes, strikes against the state or any local government employer are declared illegal (section 288.230). Under section 288.240, commencement or continuance of such strike shall be enjoined by court order upon application by the state or local employer, and if a strike is commenced or continued in violation of such order, any officer of an employee organization who is wholly or partly responsible for such violation may be punished under section 288.250 by a fine of not more than $1,000 for each day of continued violation, or by imprisonment as provided in NRS 22.110. Section 22.110 provides that when the contempt consists in the omission to perform an act which is yet in the power of the person to perform, such person may be imprisoned until he or she performs it. Title 16, Chapter 208 of the NRS defines a "prison" to mean any place designated by law for the keeping of persons held in custody under process of law, or under lawful arrest (section 208.075), and a "prisoner" includes any person held in custody under process of law, or under lawful arrest (section 208.085). Under Chapter 211 of Title 16, the board of county commissioners and the governing body of an incorporated city shall make all necessary arrangements to utilize the labour of the prisoners committed to any jail within any county, city, or town within the state, for a term of imprisonment by the judges of the several district courts within the state or the justices of the peace in any township throughout the state (section 211.120). All prisoners sentenced by the judge of any district court, or by the justice of the peace of any justice’s court, and sentenced to a term of imprisonment in any county, city or town jail or detention facility shall be deemed to have been also sentenced to labour during such term, unless the judge or justice of the peace sentencing the prisoner, for good cause, orders otherwise (section 211.130).

Article 1(e). 4. The Committee notes from the US Department of Justice Bureau of Justice Statistics Bulletins of April 2003 and November 2004 that on 30 June 2002 as well as on 1 July 2003, the number of inmates in state or federal prisons and local jails per 100,000 residents of each population group was more than twice as high for those of Hispanic origin than for "White" residents (excluding Hispanics); for "Black" residents (again excluding Hispanics) the corresponding rate was over seven times the "White" incarceration rate in the case of men, and about five times in the case of women. The Committee also has noted that, based on the National Corrections Reporting Program, 1996, and Bureau of Census, 2000 data, the Human Rights Watch organization states in its April 2003 backgrounder on "Incarcerated America" that "This racial disparity bears little relationship to racial differences in drug offending. For example, although the proportion of all drug users who are black is generally in the range of 13 to 15 per cent, blacks constitute 36 per cent of arrests for drug possession. Blacks constitute 63 per cent of all drug offenders admitted to state prisons. In at least fifteen states, black men were sent to prison on drug charges at rates ranging from twenty to fifty-seven times those of white men". Since a prison sentence normally involves an obligation to perform labour, the Committee hopes that the Government will be in a position to comment in its next report on the abovementioned figures and any measures taken or contemplated to ensure that there is no racial, social or national discrimination in the imposition of prison sentences involving an obligation to perform labour.