Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

Article 1(d) of the Convention 

1. In its previous direct requests, the Committee has noted the statement of the Government representative to the Conference Committee in June 2002, indicating that, after a thorough examination of federal and state prison law and practice, the Government’s 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. The Committee noted the further assertion that persons jailed under these circumstances were considered “pre-trial detainees” rather than ordinary prisoners; that Federal Bureau of Prisons Regulations and other federal guidelines prohibited the imposition of forced or compulsory labour on pre-trial detainees; and that TAPILS had been unable to find a single instance in which labour was exacted contrary to these guidelines. The Committee took note of these indications and the conclusions reached by TAPILS with regard to the treatment in practice of persons sent to jail as a result of contempt orders in labour strikes. Noting, however, that its mandate was to ascertain the compliance of both law and practice with ratified Conventions, the Committee requested the Government to supply further information and explanations regarding relevant state legislation, including legislation in the states of Michigan, Missouri and Nevada, as well as any measures taken or contemplated to ensure their conformity with the Convention.

2. The Committee notes the Government’s indication in its latest report that the laws in question of the states of Michigan, Missouri and Nevada, “do not and should not raise any issues of concern” under the Convention, and its suggestion that this is so because “[no] actual problems have ever arisen or have ever threatened to arise” in these states.

Michigan 

3. In its previous comments the Committee referred to sections 423.202 and 423.202a of the Michigan Compiled Laws [Public Employment Relations Act of 1947, as amended] which, taken together with other legal provisions, prohibit strikes by public employees, enforce the ban on such strikes by means of mandatory court injunctions, and punish defiance of such injunctions with contempt rulings that may involve the imposition of compulsory labour. The Committee notes the Government’s indication that section 423.202a(10) of the Michigan Compiled Laws “has been construed and applied by the courts of that state” as requiring a showing of “violence, irreparable injury, or breach of the peace”, and thus “in such a way that imprisonment for violation of a strike-related injunction is permitted only under circumstances that are strikingly similar to those recognized as ‘special circumstances’ by the Committee”.

4. The Committee considers that the criterion of “breach of the peace”, cited by the Government as one of the prerequisites under Michigan law for the issuance of injunctions in public teacher strikes, is too vague to enable the Committee to ascertain whether it might have a bearing on the application of the Convention. It therefore requests the Government to supply further information on the application by the courts of this criterion including copies of relevant court decisions. The Government is otherwise requested to indicate any measures taken or contemplated in order to ensure that no penalties involving compulsory labour can be imposed for having participated in strikes.

Nevada

5. In its previous comments, the Committee drew the attention of the Government to certain provisions of Nevada state law. It noted, among other things, that under section 211.120 of the Nevada Revised Statutes, the board of county commissioners and the governing body of an incorporated city shall make all necessary arrangements to utilize the labour of 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, whereas under section 211.130, 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.

6. The Committee notes the reference by the Government in its report to section 211.130.1 of the Nevada Revised Statutes Annotated, under which a prisoner’s incarceration is deemed to include labour only if the prisoner is “sentenced to a term of imprisonment”, and its view that, “Because an officer of an employee organization who is jailed for disobeying a no-strike injunction is not ‘sentenced to a term of imprisonment’, but instead retains for all practical purposes the keys to his or her continued confinement, he or she may not be required to perform inmate labour.” The Committee would be grateful if the Government would also supply comments and information that clarify, in relationship to section 211.130 on “sentenced” prisoners, the meaning and practical application of section 211.120 of the Revised Nevada Statutes, in so far as it provides for the utilization of the labour of the prisoners “committed” to any jail within any county, city, or town within the state, for a term of imprisonment.

Article 1(e)

7. In its previous comments the Committee noted government statistical data showing racial disproportionalities in the composition of inmate populations and significant racial disparities in prison incarceration rates in federal and state prisons and local jails, including disproportionate numbers of African American males subjected to arrests, convictions and sentencing in drug offences. Since a prison sentence normally involves an obligation to perform labour, the Committee asked the Government to comment on the data and on 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.

8. The Committee notes the Government’s indication in its report that, “U.S. law and policy clearly prohibit racial discrimination in the criminal justice system”, and that it cites the equal protection guarantees under the United States Constitution. It suggests that the United States law provides for several procedural mechanisms by which redress for racially discriminatory prison sentencing may be sought on equal protection grounds, including individual claims as well as lawsuits the Attorney‑General may initiate, which challenge patterns and practices of conduct by law enforcement authorities that deprive prisoners of their constitutional rights. The Committee would appreciate being supplied statistical data and other information from the Government about the actual use of such mechanisms to assert claims of racial discrimination in prison sentencing.

9. The Committee notes the report of November 2004 of the United States Sentencing Commission, “Fifteen Years of Guidelines Sentencing”, which, in part, addresses the issue of racial and other forms of discrimination in the federal sentencing process, in relation to the 1984 Sentencing Reform Act and the system of federal mandatory sentencing guidelines the latter provided for. The Committee notes the acknowledgement in that report, that: “Concern over possible racial or ethnic discrimination in federal sentencing remains strong today, 15 years after implementation of guidelines designed to eliminate it”. The Committee notes the further indication that: “It is clear that the Commission must address these concerns and identify whether discrimination based on demographic status persists and, if so, how it is manifested and what can be done to eliminate it”. Regarding research studies carried out on the question of discrimination under the sentencing guidelines, the report indicates that: “Different studies yield different answers as to whether discrimination influences sentences at all and, if so, how much. These studies also disagree on which racial and ethnic groups are discriminated against and exactly where in the criminal justice process this discrimination occurs”. The Committee hopes that the Government will in its next report provide comments about the role and impact of the system of federal sentencing guidelines and other aspects of sentencing reform on racial and other forms of discrimination in federal sentencing, and that it will also supply information concerning measures the United States Sentencing Commission is taking to identify the causes of such discrimination and to determine why it persists, how it is manifested, and what can be done to eliminate it, as well as information regarding the latest research studies on racial and other forms of discrimination in the sentencing process and in the criminal justice system generally.

10. The Committee notes the 2006 report of the United States Department of Justice, “Juvenile Offenders and Victims: 2006 National Report”, which cites research findings that “minority (especially black) youth are over-represented at most stages of the juvenile justice system”, and it identifies “a challenge for research to determine if there is a unique effect of discrimination on justice system decision-making”. The report indicates that the Juvenile Justice and Delinquency Prevention Act (JJDPA) requires states to assess their level of disproportionate minority confinement (DMC), and that a 2002 amendment to the JJDPA, “recognizing that disparity may exist at many decision points (not just detention and corrections)”, broadened the DMC concept from “confinement” to “contact”. The report explains that, “Under this new conceptualization, as youth pass through the different stages of the juvenile justice system, they make contact with a series of decision-makers, each of whom could render a decision that potentially could result in racial disparity. Measuring the disparity at each decision-making point gives a better understanding of where disparity is introduced and/or magnified in the handling of cases by the juvenile justice system.” The report also refers to a new tool developed by the Office of Juvenile Justice and Delinquency Prevention (OJJDP) called the DMC Relative Rate Index (RRI), which is intended to measure the levels of disparity at each decision point. The Committee hopes that the Government will supply information concerning the application of the revised DMC statistical method under the Juvenile Justice and Delinquency Prevention Act, as well as the use of the DMC Relative Rate index tool by the Office of Juvenile Justice and Delinquency Prevention, including information about how these tools are being used to help determine the extent to which discrimination accounts for racial disparities in the sentencing and confinement of youth offenders and otherwise affects justice system decision-making, and how they may also be used to help identify its sources.

Trafficking in persons

11. In its previous observations the Committee noted the Government drew attention to the Trafficking Victims Protection Act of 2000 (TVPA), as supplemented by the Trafficking Victims Protection Reauthorization Act (TVPRA) of 2003 and the Trafficking Victims Protection Reauthorization Act of 2005, which created new federal crimes, including a “forced labour” crime in a new section 1589 inserted in Title 18 of the United States Code, and which also strengthened penalties for trafficking-related offences and afforded new protection and expanded services to trafficking victims. The Committee also noted that an Interagency Task Force to Monitor and Combat Trafficking in Persons was established in February 2002, and a report from the task force indicating that, “Since the enactment of the TVPA in October 2000, the Department of Justice (DOJ) prosecuted 79 traffickers in FY [fiscal year] 2001 and 2002, three times as many as the previous two years, opened 127 investigations of trafficking cases, and conducted the largest ever training for federal prosecutors and agents in October 2002.”

12. Noting also Congressional findings on trafficking incorporated into the TVPA, which, among other things, indicated that approximately 50,000 women and children are trafficked into the United States each year, the Committee asked the Government to supply further details on the measures being taken by the Government to prosecute trafficking offences and to protect rather than punish the victims of such offences, including information on the outcome of the 79 prosecutions and 127 investigations in fiscal years 2001 and 2002 referred to in the Government’s report.

13. The Committee notes the references made by the Government in its report to reports of the Department of Justice (DOJ) from 2004 and 2005. The Committee also notes a September 2006 report of the DOJ entitled, “Assessment of U.S. Government Efforts to Combat Trafficking in Persons in Fiscal Year 2005.” The latter report cites statistics showing that, in 2005, 139 trafficking investigations were pursued, ten more than in 2004; that these led to prosecutions under the TVPA involving 27 cases in which 83 defendants were charged (in comparison to ten cases and 24 defendants charged in 2004), and which, in turn, led to 26 convictions, in comparison to 15 in 2004. The report includes a breakdown of the sentences imposed: “Of the 25 defendants convicted under the TVPRA in FY [fiscal year] 2005, 23 received a prison-only term, one received both prison and supervised release, and one received a probation-only sentence. The average prison term imposed for the 23 defendants was 103 months and prison terms ranged from 14 to 270 months: ten received a prison sentence from one to five years, five received terms from five to ten years, and eight received a prison term of more than ten years. One defendant received a probation-only term of 12 months and one defendant received a split sentence of 37 months’ prison and 36 months’ probation.” The Committee notes the indication that the number of anti-trafficking task forces increased from 22 in 2004 to 32 in 2005, with an additional ten anticipated by the end of the 2006 fiscal year.

14. The Committee notes the further statement in the 2006 DOJ report: “The US Government recognizes, however, that more needs to be done to increase the number of investigations and prosecutions. It has taken several steps to do so, primarily by involving state and local authorities in the anti-trafficking fight. To improve the U.S. Government’s ability to investigate and prosecute traffickers, NIJ [National Institute of Justice] is conducting research on the best methods for detecting and investigating traffickers and the legal challenges the US Government encounters in prosecuting traffickers. These projects include: surveys of local law enforcement responses to TIP [trafficking in persons], surveys of federal and state attorneys, analysis of domestic and international TIP legislation, and surveys of law enforcement agencies to determine local definitions of TIP and the number and type of investigations conducted. This research will assist in identifying best methods for combating TIP at the state and local level.”

15. The Committee hopes that the Government will continue to supply updated statistics and data regarding the prosecution, conviction, and sentencing of trafficking offenders, including information on the progress of measures taken to increase the number of investigations and prosecutions and to involve state and local authorities in the anti-trafficking fight, as well as information on the outcomes of research and survey projects by the NIJ concerning methods for detecting and investigating traffickers and legal challenges the Government encounters in prosecuting traffickers.

16. The Committee notes, with regard to victim protection services, the indication in the 2006 DOJ report that, “In order to improve victim access to government services, the Government must continue to work on its ability to identify victims. Acting on the recommendations in the September 2005 Assessment, the Government has improved its capacity to find and rescue trafficking victims by focusing on particular work sectors or first responders, such as the work sector, victim service providers, the travel industry, and the faith-based community. Once victims are identified, the Government must improve its efforts to coordinate victim services offered by federal agencies and grant recipients. Although the Government has improved inter-agency coordination on TIP issues, increased coordination could improve victim access to services and assistance.” The Committee would be grateful for updated information from the Government in its next report about measures it is taking to improve its capacity to identify, locate and rescue trafficking victims and to improve victim access to government services, including steps to improve inter-agency coordination of victim services.