Second and Third Periodic Report of the United States of America to the UN Committee on Human Rights Concerning the International Covenant on Civil and Political RightsSubmitted by the United States of America to the UN Committee on Human Rights Concerning the International Covenant on Civil and Political Rights I. INTRODUCTION II. IMPLEMENTATION OF SPECIFIC PROVISIONS OF THE COVENANT Article 1 - Self-determination……………………………………………………………… 3 III. Committee Suggestions and Recommendations Annexes: 1. The Government of the United States of America welcomes this opportunity to provide the Human Rights Committee the U.S. combined second and third periodic report on measures giving effect to U.S. undertakings under the International Covenant on Civil and Political Rights ("the Covenant") in accordance with Article 40 thereof. The organization of this periodic report follows the General Guidelines of the Human Rights Committee regarding the form and content of periodic reports to be submitted by States Parties (CCPR/C/66/GUI/Rev.2). 2. The following information supplements that provided in the U.S. Initial Report of July 1994 (CCPR/C/81/Add.4, published 24 August 1994; and HRI/CORE/1/Add.49, published 17 August 1994). It also supplements the information provided by the U.S. delegation at the meetings of the Human Rights Committee, which discussed the Initial Report on 31 March 1995 (CCPR/C/SR. 1401-1402 and SR. 1405-1406, published 24 April 1995). The information also takes into account the concluding observations of the Committee, CCPR/C/79/Add.50; A/50/40, paras. 266-304, published 3 October 1995, and the 27 July 2004 letter of the Committee to the United States in which the Committee invited the United States to address several of its specific concerns. 3. In this consolidated report, the United States has sought to respond to the Committee’s concerns as fully as possible, notwithstanding the continuing difference of view between the Committee and the United States concerning certain matters relating to the import and scope of provisions of the Covenant. In particular, in regard to the latter, the United States respectfully reiterates its firmly held legal view on the territorial scope of application of the Covenant. See Annex I. II. IMPLEMENTATION OF SPECIFIC PROVISIONS OF THE COVENANT Article 1 - Self-determination 5. The Insular Areas. The United States continues to exercise sovereignty over a number of Insular Areas, each of which is unique and constitutes an integral part of the U.S. political family. 6. Paragraphs 12-25 of the Initial Report set forth the policy of the United States of promoting self-government in the Insular Areas of the United States. At that time, the Insular Areas of the United States included the Commonwealth of Puerto Rico, Guam, the U.S. Virgin Islands, American Samoa, and the Commonwealth of the Northern Mariana Islands; the United States also administered Palau, at the time the sole remaining entity of the Trust Territory of the Pacific Islands. 7. The Insular Areas of the United States remain the same, but the status of Palau has changed. In 1986, the government of Palau and the government of the United States signed a Compact of Free Association, which was enacted into law by the U.S. Congress in the same year. However, the Compact was not ratified by the people of Palau until a November 1993 plebiscite. Approval of that plebiscite led, on 1 October, 1994, to the termination of the Trusteeship, independence for Palau and the commencement of Palau’s relationship of free association with the United States. Palau became a member of the United Nations on 15 December, 1994. 8. The Commonwealth of Puerto Rico. As reported in paragraph 14 of the Initial Report, the people of Puerto Rico expressed their views in a public referendum in November 1993, in which continuation of the commonwealth arrangement received the greatest support, although nearly as many votes were cast in favor of statehood. By contrast, a small minority of some 5 percent chose independence. The people of Puerto Rico more recently expressed their views in a public referendum held on 13 December, 1998. The plebiscite allowed for five options: (1) a "territorial" commonwealth (0.1%); (2) free association (0.3%); (3) statehood (46.5%); (4) independence (2.5%); and (5) "none of the above" (50.3%). The majority, thus, chose "none of the above." To address the schism in Puerto Rico between those in favor of maintaining the commonwealth status and those in favor of statehood, in 2000, the U.S. Congress held hearings on the right of Puerto Rico to self-determination and passed legislation assigning $2.5 million to educate Puerto Rico residents about their self-determination choices regarding the Island’s future status. American Indians 11. History of Indian Trust Accounts. The federal government‑Indian trust relationship dates back over a century. As to individual Indians, pursuant to its assimilationist policy in the 19th century, Congress passed the General Allotment Act of 1887, also known as the "Dawes Act." 25 U.S.C. § 331, et seq. (as amended). Under the General Allotment Act, beneficial title of allotted lands vested in the United States as trustee for individual Indians. See Cobell v. Norton, 240 F.3d 1081, 1087 (D.C. Cir. 2001). The trust had a term of 25 years, at which point a fee patent would issue to the individual Indian allottee. See id. Allotment of tribal lands ceased with the enactment of the Indian Reorganization Act of 1934 ("IRA"). See id. (citing 48 Stat. 984 (codified as amended at 25 U.S.C. § 461 et seq.)). Allotted lands remained allotted, but the IRA provided that unallotted surplus Indian lands return to tribal ownership. See id. (citing 25 U.S.C. § 463). In keeping with the government's assimilationist allotment policies, the 1934 Act extended the trust period indefinitely for allotted lands. See id. The federal government retained control of lands already allotted but not yet fee‑patented, and thereby retained its fiduciary obligations to administer the trust lands and funds arising therefrom for the benefit of individual Indian beneficiaries. See id. These lands form the basis for some of the Individual Indian Money ("IIM") accounts, which are monitored by the Secretary of the Interior. See id. As to the Indian tribes, the United States also holds lands in trust for the tribes. The Secretary of the Interior may collect income from tribal trust property and may deposit it for the benefit of the relevant tribe in the United States Treasury (or other depository institution). 12. The American Indian Trust Fund Management Reform Act. After Congress amended the Indian Self‑Determination Act in 1994, tribes had the opportunity (subject to the approval of the Bureau of Indian Affairs of the Department of the Interior) to manage their own trust accounts (including IIM accounts). If a tribe chose not to manage its own trust accounts, or if the BIA found that a tribe could not fulfill the fiduciary obligations therein, the government retained control over the accounts. See Cobell, 240 F.3d at 1088. In 1994, Congress also enacted the Indian Trust Fund Reform Act, which recognized the federal government's preexisting trust responsibilities. Pub. L. No. 103‑412 (1994). That Act, among other things, outlined the "Interior Secretary's duties to ensure 'proper discharge of the trust responsibilities of the United States.'" Id. at 1090 (quoting 25 U.S.C. § 162a(d)). 13. In 1996, several beneficiaries of IIM accounts brought a class action (the Cobell case) seeking declaratory and injunctive relief, alleging that the Secretaries of the Interior and Treasury breached their fiduciary duties by mismanaging IIM accounts. See Cobell, 240 F.3d at 1087. The district court found for the plaintiffs in the initial phase of the case, and the U.S. Court of Appeals for the District of Columbia Circuit affirmed and remanded for further proceedings. See id. at 1110. In September 2003, the district court entered a "structural injunction" setting forth detailed requirements for both trust administration and accounting. See Cobell v. Norton, 283 F. Supp. 2d 66 (D.D.C. 2003). That ruling is currently on appeal. 14. In 2002 and thereafter, various tribes sued the government in federal district court and the Court of Federal Claims, claiming that the government had failed to provide accountings of their trust funds and trust assets and had mismanaged those funds and assets. As relief, the plaintiffs seek accountings and money damages. Currently, there are 25 tribal trust accounting and asset mismanagement cases pending against the government. 15. Committee Recommendation: That steps be taken to ensure that previously recognized aboriginal Native American rights cannot be extinguished. The term "recognized aboriginal rights" does not have a meaning per se in U.S. Indian law and practice. Moreover, under U.S. law recognized tribal property rights are subject to diminishment or elimination under the plenary authority reserved to the U.S. Congress for conducting Indian affairs. 16. Committee Recommendation: That the government ensure that there is a full judicial review in respect of determinations of federal recognition of tribes. The U.S. regulatory process for recognizing tribal governments is set forth in 25 C.F.R. Part 83; it provides that determinations may be reviewed in federal court. In particular, an administrative decision not to recognize a tribe can be challenged in federal court. Also, Congress retains the authority, subject to some constitutional constraints, to recognize Indian groups as tribes. 17. Committee Recommendation: That the Self-Governance Demonstration Project and similar programs be strengthened to continue to fight the high incidence of poverty, sickness and alcoholism among Native Americans. The Self-Governance Demonstration Project became a permanent program for the U.S. Department of the Interior in 1994 and for the U.S. Department for Health and Human Services in 2003. See 25 U.S.C. § 458aa et seq. As of 2003, more than 200 tribes had participated in the program under 81 agreements with the United States which were funded at a total cost of $304,857,315. The Self-Governance Program continues to be credited with the improved delivery of services to American Indians and Alaska Natives. 18. Committee Request: Describe the constitutional and political processes -- including the legislative, administrative or other measures in force -- which in practice allow the exercise of the right of self-determination within the U.S. Under the concept of tribal self-determination, the tribes have the right to operate under their own governmental systems within the American political framework. In Article 1, Section 8, Clause 3 of the United States Constitution, tribes are recognized as political entities with a government-to-government relationship with the United States. The United States enables, assists, and supports the exercise of tribal self-determination. One example of this government support of the exercise of tribal self-determination and self-governance is through Indian Self-Determination Contracts and Grants for the entire range of governmental programs frequently administered by tribal governments, including health, education, human services, public safety and justice, community development, resources management, trust services, and general administration. 19. Current policy. As stated by President George W. Bush on 23 September 2004, "my administration is committed to continuing to work with federally recognized tribal governments on a government to government basis and strongly supports and respects tribal sovereignty and self-determination for tribal governments in the United States." George W. Bush, Memorandum for the Heads of Executive Departments and Agencies. President Bush stated that his administration would continue to provide Native Americans "with new economic and educational opportunities." Proclamation No. 7500, 66 Fed. Reg. 57, 641 (Nov. 12, 2001). See also, George W. Bush, Letter Celebrating the 35th Anniversary of President Richard Nixon's Special Message to Congress on Indian Affairs, (July 1, 2005); George W. Bush, Proclamation of National American Indian Heritage Month, (Nov. 4, 2004); and, George W. Bush, Government-to-Government Relationship with Tribal Governments, (Sept. 23, 2004). 20. Committee Request: Describe the factors or difficulties which prevent the free disposal by peoples of their natural wealth and resources contrary to the provisions of Article 1 of the Covenant and the extent to which such prevention affects the enjoyment of other rights set forth in the Covenant. Under the concept of tribal self-determination, the tribes have the right to operate under their own governmental systems within the American political framework. In some circumstances, the United States may require that Native Americans secure the consent of the federal government prior to disposing of their property or natural resources. Native Americans are the owners of land and resources, which may be held in either trust or in fee. In either case, there are processes available for the disposal or alienation of the land or the natural resources if they so choose, with the consent of the federal government. 21. Committee Request: Discuss any restrictions or limitations even of a temporary nature imposed by law or practice on the enjoyment of the right to self-determination. Under U.S. law, tribes enjoy self-determination regarding issues that have an impact on them or have a nexus with their endeavors, affairs, operations, members, etc. U.S. law, however, makes tribal sovereignty subject to the plenary power of Congress. 22. As reported in paragraph 47 of the Initial Report, in the area of criminal jurisdiction, Congress during the 1950s gave several of the states authority to exercise concurrent jurisdiction on Indian reservations. 18 U.S.C. § 1162; 28 U.S.C. § 1360. Also, in 1968 Congress limited the tribal exercise of criminal jurisdiction to misdemeanors. 25 U.S.C. § 1302(7). While the Supreme Court subsequently concluded that tribes do not have criminal jurisdiction over non-Indians, Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), last year the Supreme Court affirmed that Indian tribes do have the jurisdiction and authority to prosecute non-member Indians for crimes committed on their reservations. See United States v. Lara, 541 U.S. 193 (2004). 23. Committee Request: Describe any factors or difficulties affecting the enjoyment of the right to self-determination by persons within the jurisdiction of the State. Under the concept of tribal self-determination, the tribes have the right to operate under their own governmental systems within the American political framework. To the extent that an owner of trust or fee property is required to obtain federal approval of development of land, a delay may occur in obtaining that federal approval. With regard to political status and cultural development, Indians are citizens of the United States and enjoy the same rights as other citizens. However, when indigenous individuals are in tribal jurisdiction, as a member of the tribe, enjoyment may be limited by the tribe, consistent with the federal Indian Civil Rights Act, 25 U.S.C. 1301. Indigenous governments control tribal membership and therefore set the rules for the enjoyment of culture and values within the tribe, outside of U.S. jurisdiction, so long as they are not in violation of federal law. Tribes generally maintain exclusive jurisdiction over any misdemeanor committed by a tribal member within that tribe’s jurisdiction. 24. Committee Request: Describe any measures taken to promote the right of self-determination in Non-Self-Governing and Trust Territories under the control of the United States. Please see paragraphs 5 through 8 of this report. 25. Committee Request: That the United States should show broader willingness to recognize Indian tribes. As reported in the Initial Report, since 1978, the United States has been open and accommodating of petitions for recognition. Efforts have been made to streamline the process and isolate its work from undue influence. The Federal Acknowledgment Program maintains a public listing of petitioners which evidences the large volume of petitions actively being considered by the United States. A discussion of the acknowledgment process can be found in paragraphs 51-53 of the Initial Report. Thus far, the status of 60 groups has been resolved either by the U.S. Department of the Interior or through special legislation. Article 2 - Equal protection of rights in the Covenant 26. The enjoyment by all individuals within the United States of the rights enumerated in the Covenant without regard to race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, was elaborated upon in paragraphs 77-100 of the Initial Report. 27. Since submission of its Initial Report, the United States has ratified the International Convention on the Elimination of All Forms of Racial Discrimination; that Convention entered into force for the United States on 20 November, 1994. The United States Initial Report under that Convention was submitted to the UN Committee on the Elimination of Racial Discrimination in September 2000. Committee on the Elimination of Racial Discrimination; Third periodic reports of States Parties due in 1999: United States of America, U.N. Doc. CERD/C/351/Add.1 (2000). The United States was examined by that Committee on that report in August 2001. Concluding Observations of the Committee on the Elimination of Racial Discrimination: United States of America, Comm. on the Elimination of Racial Discrimination, 59th Sess., U.N. Doc. CERD/C/59/Misc.17/Rev.3 (2001). 28. Classifications. Under the doctrine of equal protection, it has long been recognized that the government must treat persons who are "similarly situated" on an equal basis, but can treat persons in different situations or classes in different ways with respect to a permissible state purpose. The general rule is that legislative classifications are presumed valid if they bear some reasonable relation to a legitimate governmental purpose. See FCC v. Beach Communication, Inc., 508 U.S. 307 (1993); McGowan v. Maryland, 366 U.S. 420, 425-36 (1961). The most obvious example is economic regulation. Both state and federal governments are able to apply different rules to different types of economic activities, and the courts will review such regulation under a very deferential standard. See, e.g., Williamson v. Lee Optical Co., 348 U.S. 483 (1955). Similarly, the way in which a state government chooses to allocate its financial resources among categories of needy people will be reviewed under a very deferential standard. See Dandridge v. Williams, 397 U.S. 471 (1970). 29. Suspect classifications. On the other hand, certain distinctions or classifications have been recognized as inherently invidious and therefore have been subjected to more exacting scrutiny and judged against more stringent requirements. For example, classifications on the basis of racial distinctions are automatically "suspect" and must be justified as necessary to a compelling governmental purpose and as narrowly tailored to achieving a valid compelling government interest. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995); Korematsu v. United States, 323 U.S. 214 (1944); Brown v. Board of Education, 347 U.S. 483 (1954); McLaughlin v. Florida, 379 U.S. 184 (1961); Loving v. Virginia, 388 U.S. 1 (1967). 30. This rule was recently reiterated by the Supreme Court in Johnson v. California, 125 S. Ct. 1141 (2005). Petitioner, a prison inmate, sued the California Department of Corrections (CDC), alleging that the CDC's unwritten policy of segregating new and transferred prisoners by race violated the inmate’s constitutional right to equal protection of the laws. The CDC contended that the policy was necessary to prevent violence caused by racial prison gangs and was thus reasonably related to legitimate penological interests. 31. The Supreme Court held that the policy was subject to strict judicial scrutiny since it was based on racial classification, and thus the classification was required to be narrowly tailored to further compelling CDC interests. The court found that compromising the inmate's equal protection rights was not necessarily needed for proper prison administration. The CDC's discretion and expertise in the unique area of managing daily prison operations did not warrant deference to the CDC's use of race as a means of controlling prison violence. 32. The court has also affirmed the application of an intermediate level of scrutiny to classifications by gender. See United States v. Virginia, 518 U.S. 515 (1996) (stating military college’s male-only policy was unconstitutional because the state failed to provide an "exceedingly persuasive justification" for categorically excluding admission of women). 33. Corrective or affirmative action. It remains a matter of continuing interest in the United States whether legislation may classify by race for purposes of compensating for past racial discrimination. The general rule that has evolved is that because race is a "suspect classification," in this context as in all others, it will be subject to "strict scrutiny" by the courts. See, e.g., Adarand Constructors, Inc. v. Perla, 515 U.S. 200 (1995); Richmond v. Croson, 488 U.S. 469 (1989). However, where an employer or other entity has engaged in racial discrimination in the past, it will generally be permitted (and may sometimes be required) to accord narrowly tailored racial preferences for a limited period of time, to correct the effects of its past conduct. See Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986). Government entities, however, may also attempt to address discriminatory acts of others when the effects of such discrimination may be extended by government policies. 34. Black Farmers. One of the major issues addressed by the U.S. Department of Agriculture (USDA) is the ongoing implementation of the historic civil rights Consent Decree in the federal district court case of Pigford v. Veneman, 355 F. Supp. 2d 148 (D.D.C. 2005); see also Pigford v. Glickman,185 F.R.D. 82 (D.D.C. 1999). Pigford is a class action lawsuit brought by African American farmers who alleged that USDA discriminated against them on the basis of their race in its farm credit and non-credit benefit programs. 35. On 14 April, 1999, the U.S. District Court for the District of Columbia approved a Consent Decree resolving the case. See Pigford v. Glickman, 185 F.R.D. 82 (D.D.C. 1999).(A consent decree is an order of a judge based upon an agreement, almost always put in writing, between the parties to a lawsuit instead of continuing the case through trial or hearing. A consent decree is a common practice when the government has sued to make a person or corporation comply with the law or the defendant agrees to the consent decree in return for the government not pursuing criminal penalties.) 36. The Pigford Consent Decree set up a claims process under which the individual claims of class members would be adjudicated. Class members could either choose Track A, which is an expedited process with a lesser evidentiary standard and automatic relief for prevailing claimants; or Track B, which entitles the claimant to a one-day hearing before the Consent Decree Arbitrator in which the typical evidentiary standard applies and the claimant can receive any relief that the Arbitrator awards. 37. As of 7 December, 2004, over 22,000 individuals filed timely and eligible claims and chose Track A for relief. Less than 200 individuals have chosen Track B. The independent Adjudicator has issued decisions on most of these claims. Over 61 percent of Track A claimants have prevailed. The federal government has paid out over $660 million on Track A claims and USDA has forgiven over $15 million in debt. Many claimants who did not prevail on their claims have filed petitions with the Monitor for review of these decisions. Once the Monitor completes her review, the claim may be sent back to the Adjudicator or Arbitrator for reexamination pursuant to the Monitor’s direction. 38. The Consent Decree implementation has continued for over 5 years because far more claims were filed than anyone anticipated when the document was signed and approved. At the time the Consent Decree was signed, class counsel anticipated that only 2,000-5,000 claimants would file claims under the Decree. However, over 20,000 individuals filed claims under the Consent Decree. Accordingly, it has taken a substantial time for these claims to be processed and all that this entails under the Consent Decree process. Virtually all of these claims have now been processed and decisions issued on the claims. 39. USDA has voluntarily taken several measures to benefit Consent Decree claimants beyond those required by the Consent Decree and subsequent Court orders. These measures include refunds to prevailing claimants of administrative offsets on discharged debts; extension of the time for prevailing claimants to take advantage of injunctive relief; and providing additional loan servicing rights, affording some claimants an opportunity to restructure their remaining debt. 40. Federal statutes. The Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc, et seq., (2004), prohibits governments from imposing a substantial burden on the exercise of religion or otherwise discriminating against individuals or organizations based on their religion through land use regulation. RLUIPA also prohibits government-run institutions, such as prisons, jails, and hospitals, from imposing a substantial burden on the religious exercise of an institutionalized individual. The Attorney General can bring civil actions for injunctive relief to enforce compliance with RLUIPA. 41. The Developmental Disabilities Assistance and Bill of Rights Act of 2000, 42 U.S.C. § 15001 (2004), provides support for individuals with disabilities to be more independent and have greater control and choice over where they live and contribute in their communities. The Help America Vote Act of 2002, 42 U.S.C. § 15301 (2004), established standards and funding to strengthen the federal voting process by making it easier for individuals with disabilities to vote. In 1998, Congress extended to technology the prohibition against discrimination on the basis of disability. Through section 508 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(d)(2004),the federal government is required to make its electronic and information technology accessible to and usable by its customers and employees with disabilities. Through eight different statutes, a protection and advocacy system is funded in each U.S. state to assist individuals with disabilities to preserve, restore, or secure their rights under the law, including the right to vote. 43. Legal aliens enjoy equal protection rights as well. Distinctions between lawful permanent resident aliens and citizens require justification, but not the compelling state interests required for distinctions based on race. Consistent with article 25 of the Covenant, aliens are generally precluded from voting or holding federal elective office. A number of federal statutes, some of which are discussed above, prohibit discrimination on account of alienage and national origin. 44. Throughout the Immigration and Nationality Act, Congress distinguishes lawful permanent residents (LPRs) and non-LPRs. The federal courts have held that Congress may draw such distinctions consistently with the Equal Protection Clause of the Fifth Amendment so long as there is a facially legitimate and bona fide reason for treating the two classes disparately. See, e.g., De Leon-Reynoso v. Ashcroft, 293 F.3d 633 (3d Cir. 2002); Jankowski-Burczyk v. INS, 291 F.3d 172 (2d Cir. 2002); Lara-Ruiz v. INS, 241 F.3d 934 (7th Cir. 2001). 45. With the creation of the Department of Homeland Security (DHS) in 2003, Congress established an Officer for Civil Rights and Civil Liberties. The Officer is charged with reviewing and assessing information concerning abuses of civil rights, civil liberties, and discrimination on the basis of race, ethnicity and religion, by employees or officials of the Department of Homeland Security. The Officer has a unique internal function of assisting the senior leadership to develop policies and initiatives in ways that protect civil rights and civil liberties. The Officer conducts outreach activities to non-governmental organizations and others to communicate the Office’s role and the Department’s commitment to the protection of individual liberties. The DHS Office for Civil Rights and Civil Liberties has been actively working to develop relationships with the Arab-American and Muslim-American communities. Reaching out to immigrant communities is an important part of a dialogue to address concerns regarding racial, ethnic, and religious discrimination. 46. Education. The Equal Protection Clause of the United States Constitution bars public schools and universities from discrimination on the grounds of race, sex, religion, or national origin. Under Title IV of the Civil Rights Act of 1964, the U.S. Department of Justice may bring suit against a school board that deprives children of equal protection of the laws, or against a public university that denies admission to any person on the rounds of "race, color, religion, sex or national origin." The Department of Justice continues to enforce court-issued consent decrees against local school boards that had engaged in racial segregation in the past in cases that may date back 40 years. The Department of Justice also investigates and brings new cases of education discrimination. 47. The Department of Justice has investigated a number of cases involving discrimination against or harassment of Muslim or Arab children in public schools. For example, the Department brought an action against a school district that barred a Muslim girl from wearing a hijab to school, resulting in a consent decree that will protect the rights of students to wear religious garb. Similarly, the Department obtained a settlement in a case in which another girl was harassed by a teacher and students because she was a Muslim. 48. The U.S. Department of Education administers a number of programs that provide opportunities for the participation of all students, including minorities and women in elementary, secondary and higher education programs, including magnet schools; educational equity programs for women and other students; assistance to school districts and others for the education of Native Hawaiians, Native Americans and Alaskan Natives; financial aid for all students including those who are minorities or women; and grants to strengthen historically Black colleges and universities and other minority serving institutions. In addition, the Elementary and Secondary Education Act of 1965 (ESEA), as reauthorized by the No Child Left Behind Act of 2001 (20 U.S.C. 6301 et seq.) (NCLB Act), promotes high educational standards and accountability in public elementary and secondary schools, and thus provides an important framework for improving student performance for all students. The reauthorized ESEA requires, as a condition of a state’s receipt of funds under the "Title I" program, that the results of annual statewide testing be published and broken out, at the school, school district, and state levels, by poverty, race, ethnicity, gender, migrant status, disability status, and limited English proficiency to ensure that no group is left behind. Each state is required to establish academic content and achievement standards and define adequate yearly progress, for the state as a whole and for schools and school districts, toward ensuring that all students meet these standards. Adequate yearly progress must include measurable annual objectives for continuous and substantial improvement for all public elementary and secondary students and for the achievement of economically disadvantaged students, students from major racial and ethnic groups, students with disabilities, and students with limited English proficiency. If a school or school district fails to make adequate yearly progress, the school or district is subject to a sequence of steps to address the situation, moving from improvement, to corrective action, and to restructuring measures designed to improve performance to meet state standards. The reauthorized ESEA also focuses on reading in the early grades through comprehensive reading programs anchored in scientific research and through enabling limited-English proficient (LEP) students to learn English quickly and effectively through scientifically based teaching methods. 49. The Department of Education’s Office for Civil Rights (OCR) enforces laws that prohibit discrimination on the basis of race, color, national origin, sex, disability, and age in programs that receive federal financial assistance from the Department of Education. These laws include: Title VI of the Civil Rights Act of 1964 (prohibiting discrimination based on race, color and national origin); Title IX of the Education Amendments of 1972 (prohibiting sex discrimination in education programs); Section 504 of the Rehabilitation Act of 1973 (prohibiting disability discrimination); Age Discrimination Act of 1975 (prohibiting age discrimination); and Title II of the Americans with Disabilities Act of 1990 (prohibiting disability discrimination by public entities, whether or not they receive federal financial assistance). 56. In the area of funding for religious schools, the Supreme Court has consistently held in recent years that where an education benefit, such as a scholarship, is provided to students on a religion-neutral basis, and the students are free to use the benefit toward the education of their choice, whether secular or religious, providing such a benefit does not violate the non-Establishment principle. See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639 (2002). The Supreme Court has also upheld various other forms of aid to students at religious schools so long as it is secular in nature, is distributed on a religion-neutral basis, and is not open to diversion to religious uses. Thus the Court in Mitchell v. Helms, 530 U.S. 793 (2000) upheld a federal program in which equipment such as computers was loaned to schools, both religious and secular, for purposes of instruction in secular subjects. Likewise, in Agostini v. Felton, 521 U.S. 203 (1997), the Court upheld a program in which public school employees went to private schools to provide supplemental instruction to poor children with disabilities. 57. Beginning in 2004, the U.S. Department of Education began administering the D.C. Choice Incentive Program. The purpose of the program is to give the parents of school children in the District of Columbia (DC) the opportunity to exercise greater choice in the education of their children by giving eligible low-income D.C. school children scholarships to attend private schools, including private religious schools. 59. Remedies. As reported in paragraph 98 of the Initial Report, U.S. law provides extensive remedies and avenues for seeking compensation and redress for alleged discrimination and denial of constitutional and related statutory rights. In addition to those previously reported, under the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141 (2004), the Attorney General can bring a civil action for equitable relief against a governmental authority to eliminate a pattern or practice of constitutional violations committed by law enforcement officers. Article 3 - Equal rights of men and women 60. Constitutional protections. As discussed in paragraphs 101 – 109 of the Initial Report, the rights enumerated in the Covenant and provided by U.S. law are guaranteed equally to men and women in the United States through the Equal Protection and Due Process Clauses of the Fourteenth and Fifth Amendments of the United States Constitution. These provisions prohibit both the federal government and the states from arbitrarily or irrationally discriminating on the basis of gender. 61. Gender Classifications. In Craig v. Boren, 429 U.S. 190 (1976), the Supreme Court articulated a standard which governed the field of gender distinctions for several years: "[t]o withstand constitutional challenge . . . classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives. Id. at 197; see also, Califano v. Goldfarb, 430 U.S. 199 (1977); Taylor v. Louisiana, 419 U.S. 522 (1975). 62. However, in United States v. Virginia, 518 U.S. 515 (1996), the Supreme Court articulated the current standard for equal protection review of gender distinctions. The justification for such distinctions must be "exceedingly persuasive." Id. at 533. "The burden of justification is demanding and it rests entirely on the state. The state must show ‘at least that the [challenged] classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.’" Id., (quoting Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982)). Furthermore, "[t]he justification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females." Id. 63. In Nguyen v. INS, 533 U.S. 53 (2001), the Supreme Court applied the Virginia standard to uphold a federal immigration statute that makes gender-based distinctions in the methods of establishing citizenship for a child born out-of-wedlock overseas where one parent is a U.S. citizen and the other is an alien. The statute, 8 U.S.C. • 1409(a), requires that certain steps be taken to document parenthood when the citizen-parent is the child’s father but not when the citizen-parent is the child’s mother. The Court found that the statute substantially serves the important governmental objectives of ensuring the existence of a biological relationship between the citizen-parent and the child, as the mother-child relationship is verifiable from the child's birth. Id. at 62. The Court also reasoned that the statute ensures at least the opportunity for the development of ties between the child and the citizen-parent, and, in turn, the United States, as the very event of birth provides such an opportunity for the mother and child. Id. at 64-65. Because fathers and mothers are not similarly situated with regard to proof of parentage, the Court held that the gender-based distinctions in the statute were justified. Id. at 63, 73. The Court also noted that the additional requirements imposed upon fathers were "minimal" and that the statute did not impose "inordinate and unnecessary hurdles to the conferral of citizenship on the children of citizen fathers[.]" Id. at 70-71. 64. On 23 June, 2000, Executive Order 13160 was issued prohibiting discrimination on the basis of a number of classifications, including sex, in federally-conducted education and training programs. 65 Fed. Reg. 39,775 (2000). This order applies to all federally conducted education and training programs as a supplement to existing laws and regulations that already prohibit many forms of discrimination in both federally conducted and federally assisted educational programs. 65. Discrimination based on pregnancy. The Pregnancy Discrimination Act (PDA) of 1978, 42 U.S.C. • 2000e(k)(2004), amended Title VII of the Civil Rights Act of 1964 to provide that discrimination "on the basis of sex" includes discrimination "because of or on the basis of pregnancy, childbirth, or related medical conditions[.]" The PDA requires that pregnancy be treated the same as other physical or medical conditions. 66. The PDA has been held to protect not only female employees, but also the spouses of male employees. In Newport News Shipbuilding and Dry Dock Co. v. E.E.O.C., 462 U.S. 669, 684-85 (1983), the Supreme Court held that a provision in an employer’s health insurance plan that provided female employees with hospitalization benefits for pregnancy-related conditions, but provided less extensive benefits for spouses of male employees, discriminated against male employees in violation of the Civil Rights Act of 1964, as amended by the PDA. The Court stated that the PDA "makes clear that it is discriminatory to treat pregnancy-related conditions less favorably than other medical conditions." Id. at 684. 67. In International Union v. Johnson Controls, Inc., 499 U.S. 187, 206 (1991), the Supreme Court held that a battery manufacturer’s policy prohibiting women capable of bearing children from working in jobs involving lead exposure violated Title VII of the Civil Rights Act of 1964, as amended by the PDA. The Court recognized that the PDA prohibits discrimination not only on the basis of pregnancy, but also on the basis of a woman's capacity to become pregnant. Id. 68. The PDA has been found to apply to contraceptive coverage in employer health insurance plans. On 14 December, 2000, the U.S. Equal Employment Opportunity Commission (EEOC) decided that the exclusion of prescription contraceptives from a health insurance plan that covered other comparable medical treatments was a violation of Title VII of the Civil Rights Act of 1964, as amended by the PDA. However, this was an administrative reasonable cause determination, and not an authoritative construction of the PDA. 70. Title IX is primarily enforced by the Department of Education’s Office for Civil Rights which investigates complaints, issues policy guidance, and provides technical assistance to schools (such as training, and sponsorship of and participation in civil rights conferences). Students and school employees may also bring private lawsuits against schools for violations of Title IX. 71. Furthermore, every federal agency that provides financial assistance to education programs is required to enforce Title IX. In August 2000, twenty federal agencies issued a final common rule for the enforcement of Title IX. In addition, Executive Order 13160, issued in June 2000, prohibits discrimination based on sex, race, color, national origin, disability, religion, age, sexual orientation, and status as a parent in education and training programs conducted by the federal government. 72. Prohibition of Discrimination in Education on the Basis of Pregnancy. The Title IX implementing regulation at 34 C.F.R. 106.40(a) specifically prohibits educational institutions that are recipients of federal financial assistance from applying any rule concerning a student's actual or potential parental, family, or marital status, which treats students differently on the basis of sex. The Title IX implementing regulation at 34 C.F.R. 106.40(b)(1) prohibits a recipient from discriminating against any student, or excluding any student from its education programs or activities, including any class or extracurricular activity, on the basis of such student's pregnancy or pregnancy related condition, unless the student requests voluntarily to participate in a separate portion of the program or activity of the recipient. The Title IX implementing regulation at 34 C.F.R. 106.40(b)(3) provides that if a recipient operates a portion of its education program or activity separately for pregnant students, to which admittance is completely voluntary on the part of the student, a recipient shall ensure that the instructional program in the separate program is comparable to that offered to non-pregnant students. 73. The Title IX implementing regulation at 34 C.F.R. 106.40(b)(2) provides that a recipient may require a pregnant student to obtain the certification of a physician that the student is physically and emotionally able to continue participation in the normal education program or activity so long as such a certification is required of all students for other physical or emotional conditions requiring the attention of a physician. With respect to a recipient that does not have leave of absence policies for students, or in the case of a student who does not otherwise qualify for leave under such a policy, the Title IX implementing regulation at 34 C.F.R. 106.40(b)(5) provides that a recipient shall treat pregnancy and pregnancy-related conditions as a justification for a leave of absence for so long a period of time as is deemed medically necessary by the student's physician, at the conclusion of which the student shall be reinstated to the status which she held when the leave began. 75. Sexual Harassment. Sexual harassment has been found to be a form of sex discrimination. Thus, federal statutes prohibiting discrimination on the basis of sex in employment, Title VII of the Civil Rights Act of 1964, 42 U.S.C. • 2000e et seq, and in federally assisted education programs, Title IX of the Education Amendments of 1972, 20 U.S.C. 1681, also prohibit sexual harassment. In a series of decisions, the Supreme Court has established the principles underlying the application of these statutes to sexual harassment. First, it is clear that same-sex harassment is actionable, as long as the harassment is based upon sex. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998). With respect to employment, where harassment by a supervisor results in a "tangible employment action" such as demotion, discharge, or undesirable reassignment, the employer is liable for a Title VII violation. Even if there has been no such tangible employment action by the employer, there may nonetheless be a Title VII violation if workplace harassment is "sufficiently severe or pervasive to alter the conditions of [the victim’s] employment and create an abusive working environment." See, Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (citations and internal quotation marks omitted). In such cases, however, an employer may avoid liability if it demonstrates that: 1) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and 2) the employee unreasonably failed to take advantage of any preventive opportunities provided by the employer or to avoid harm otherwise. See, e.g., Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); Burlington Indus. v. Ellerth, 524 U.S. 742, 765 (1998). 76. With respect to education, educational institutions that receive federal financial assistance may be liable for damages in sexual harassment suits if school officials have actual notice of the harassment, and respond to that notice with deliberate indifference. See, e.g., Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60 (1992); Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998); Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999). 77. Compensation for sex discrimination. Section 706(g) of the Civil Rights Act of 1964 provides that courts may enjoin respondents from engaging in unlawful employment practices, and order such affirmative action as may be appropriate, including reinstatement or hiring of employees with or without back pay, or any other equitable relief the court may require. 42 U.S.C. • 2000e-5(g)(1). Section 102 of the Civil Rights Act of 1991 provides that Title VII claims not involving disparate impact may result in compensatory and punitive damages in addition to the relief authorized by Section 706(g) of the Civil Rights Act. 42 U.S.C. • 1981a(a)(1). Punitive damages are allowed when the plaintiff can demonstrate that the defendant acted with malice or reckless indifference to the plaintiff’s federally protected rights, but are not allowed against governmental entities. 42 U.S.C. • 1981a(b)(1). The sum of compensatory and punitive damages for each plaintiff cannot exceed $50,000 for employers with between 14 and 100 employees, $100,000 for employers with 100 to 200 employees, $200,000 for employers with 201 to 500 employees, and $300,000 for employers with more than 500 employees. 42 U.S.C. • 1981a(b)(3). Federally assisted educational institutions may also be liable for damages for sex discrimination. See Gebser, supra. 78. Family Leave. The federal Family and Medical Leave Act (FMLA), 29 U.S.C. • 2601 et seq., guarantees that employees who work for companies with 50 or more employees can take up to 12 weeks of unpaid leave a year for the birth or adoption of a child, or for a serious health condition of the employee or a family member of the employee, including a child, spouse or parent. The FMLA defines a serious health condition as an illness, injury, impairment, or physical or mental condition that involves in-patient care in a hospital, hospice, or residential medical care facility, or continuing treatment by a health care provider. 29 U.S.C. • 2611(11). 79. The FMLA allows states to provide additional protections, and several states have family leave laws that are more generous than the FMLA. For example, some states have family and medical leave laws that apply to employers with fewer than 50 employees, provide longer time periods for family and medical leave, use a more expansive definition of "family member," or require leave for participation in children’s educational activities. 80. Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (PDA), also imposes certain obligations on employers with respect to maternity leave. The PDA requires that women affected by pregnancy or childbirth be treated the same as others for all employment-related purposes, including receipt of benefits under fringe benefit programs and leave time. Although an employer need not treat pregnancy more favorably than other conditions, an employer may choose to do so. See California Federal Savings & Loan Ass’n v. Guerra, 479 U.S. 272, 285 (1987) (agreeing with lower court that "Congress intended the PDA to be a ‘floor beneath which pregnancy disability benefits may not drop – not a ceiling above which they may not rise’") (quoting California Federal Savings & Loan Ass’n v. Guerra, 758 F.2d 390, 396 (9th Cir. 1985)). 81. Violence Against Women. On 13 September, 1994, the U.S. Congress passed the Violence Against Women Act (VAWA), a comprehensive legislative package aimed at ending violence against women. Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. • 13701 (2004). 82. VAWA was designed to improve criminal justice responses to domestic violence, sexual assault, and stalking and to increase the availability of services for victims of these crimes. VAWA requires a coordinated community response to domestic violence, sexual assault, and stalking crimes, encouraging jurisdictions to bring together multiple players to share information and to use their distinct roles to improve community responses. These players often include: victim advocates; police officers, prosecutors, judges, probation and corrections officials; health care professionals; leaders within faith communities; survivors of violence against women; and others. 83. VAWA and subsequent legislation created new federal crimes involving interstate domestic violence, interstate violation of a protection order, interstate stalking, and firearms, strengthened penalties for repeat sex offenders, and required states and territories to enforce protection orders issued by other states, tribes and territories. VAWA also created legal relief for certain battered immigrants to prevent abusers from discouraging undocumented alien victims from calling the police or seeking safety due to their unlawful status. 84. VAWA also created the National Domestic Violence Hotline and authorized funds to support domestic violence shelters, rape prevention education, domestic violence intervention and prevention programs, and programs to improve law enforcement, prosecution, court, and victim services responses to violence against women. 85. The Violence Against Women Act of 2000 (VAWA 2000), Pub. L. No. 106-386, 114 Stat. 1464, enacted on 28 October, 2000, and codified at 42 U.S.C. • 3796gg, continued and strengthened the federal government’s commitment to helping communities change the way they respond to these crimes. VAWA 2000 reauthorized critical grant programs created by VAWA and subsequent legislation and established new programs such as initiatives addressing elder abuse, violence against women with disabilities, and supervised visitation with children in domestic violence cases. VAWA 2000 also strengthened the original law by improving protections for battered immigrants, sexual assault survivors, and victims of dating violence and creating a new federal cyberstalking crime. 86. The Office on Violence Against Women (OVW). This office, a component of the U.S. Department of Justice, was created in 1995. OVW implements VAWA and subsequent legislation and provides national leadership against domestic violence, sexual assault, and stalking. Since its inception, OVW has launched a multifaceted approach to responding to these crimes. In 2002, Congress passed the Violence Against Women Office Act (Pub.L. 107-273, Div. A, Title IV, Nov. 2, 2002, 116 Stat. 1789) which statutorily established the office. A description of the comprehensive programs to protect women from violence implemented by OVM, recent initiatives to protect women from what is referred to as "stalking", and other federal and state initiatives on this subject is provided in Annex II. 87. Women and the economy. Several U.S. federal agencies sponsor programs to advance the ability of women to participate in the workplace. One such agency is the Women’s Bureau at the U.S. Department of Labor. The Women’s Bureau promotes 21st century solutions to improve the status of working women and their families. For example, GEM-Nursing (Group E-Mentoring in Nursing) encourages young men and women ages 15 to 21 to choose careers in nursing through a Web site featuring information on nursing occupations and associations, e-mentoring, and regional events. It is modeled after GEM-SET (Girls’ E-Mentoring in Science, Engineering, and Technology) which seeks to increase the number of girls age 13 to 18 who pursue careers in science, engineering, and technology through a Web site offering online resources, e-mentoring, and information about regional events. Other Women’s Bureau programs address financial security and workplace flexibility. To improve women’s financial savvy, the Women’s Bureau developed the Wi$e Up project for Generation X women ages 22 to 35. Wi$e Up includes an eight-unit curriculum available online and in classroom settings, e-mentoring, and monthly teleconferences featuring speakers on financial topics. To promote workplace flexibility options, the Women’s Bureau developed Flex-Options for Women. This project brings together corporate executives and entrepreneurs who volunteer to mentor business owners interested in creating or enhancing flexible workplace policies and programs. 88. Institutional mechanisms for the advancement of women. The Women’s Bureau was created by Congress in 1920 to "formulate standards and policies that shall promote the welfare of wage-earning women, improve their working conditions, increase their efficiency, and advance their opportunities for profitable employment." The Director of the Women’s Bureau is the principal advisor to the Secretary of Labor on issues affecting women in the labor force. The Women’s Bureau’s Fiscal year 2003-8 Strategic Plan includes the following goals: to increase women’s employment in high-growth, demand-driven occupations; increase opportunities for women to take steps to improve their economic security and retirement savings; and enhance women’s quality of life by increasing the number of employer flexible programs and policies. Article 4 - States of Emergency 89. Consistent with the information reported in paragraphs 110 – 127 of the Initial Report, since submission of that report, the United States has not declared a "state of emergency" within the meaning of Article 4 or otherwise imposed emergency rule by the executive branch. 90. However, as reported in that section of the Initial Report, there are statutory grants of emergency powers to the President. Since the submission of the Initial Report, the President has invoked the National Emergencies Act, 50 U.S.C. • 1601 et seq., to declare a national emergency in the following situations: 91. This invocation was misinterpreted by the (OSCE) as action which required derogation under Article 4 of the Covenant. In correspondence with the OSCE, the United States explained that under U.S. law, declarations of national emergency have been used frequently, in both times of war and times of peace, in order to implement special legal authorities and that the Executive Orders made as a result of the September 11 attacks did not require derogation from its commitments under the Covenant. 92. Judicial review. There have been no adverse federal judicial rulings concerning the exercise of emergency powers by the federal authorities since the submission of the Initial Report. 93. In Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004), the Supreme Court stated that the United States is entitled to detain enemy combatants, even American citizens, until the end of hostilities, in order to prevent the enemy combatants from returning to the field of battle and again taking up arms. The Court recognized the detention of such individuals is such a fundamental and accepted incident of war that it is part of the "necessary and appropriate" force that Congress authorized the President to use against nations, organizations, or persons associated with the September 11 terrorist attacks. 124 S.Ct. at 2639-42 (plurality op.); id., at 2679 (Thomas J., dissenting). A plurality of the Court addressed the entitlements of a U.S. citizen designated as an enemy combatant and held that the Due Process Clause of the United States Constitution requires "notice of the factual basis for [the citizen-detainee’s] classification, and a fair opportunity to rebut the government’s factual assertions before a neutral decision maker." Id. at 2648. A plurality of the Court observed: "There remains the possibility that the [due process] standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal," and proffered as a benchmark for comparison the regulations titled, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, Army Regulation 190-8, •1-6 (1997). Id. at 2651. 94. On 28 February, 2005, a federal district court held that the Non-Detention Act, 18 U.S.C. • 4001(a), forbids the federal government from detaining Jose Padilla as an "enemy combatant" and that the President lacks any inherent constitutional authority to detain Padilla. See Padilla v. Hanft, 2005 U.S. Dist. LEXIS 2921 (D.S.C. Feb. 2005). In September of 2005, the district court’s decision was reversed by the Fourth Circuit. 2005 U.S. App. LEXIS 19465 (4th Cir. 2005). The Fourth Circuit held that the United States Congress in the Authorization for Use of Military Force Joint Resolution, 115 Stat. 224, provided the President all powers "necessary and appropriate to protect American citizens from terrorist acts by those who attacked the U.S. on September 11, 2001." Id. at *30. Those powers included the power to detain identified and committed enemies such as Padilla, who associated with al Qaeda and the Taliban regime, took up arms against the United States in its war against these enemies, a power without which the President could well be unable to protect American citizens. Id. at *31. Article 5 - Non-derogable nature of fundamental rights 95. There is no change from the information reported in paragraphs 128 – 130 of the Initial Report. 96. Right to life, freedom from arbitrary deprivation. The United States constitutional recognition of every human’s inherent right to life and the doctrine that that right shall be protected by law were explained in paragraphs 131 - 148 of the Initial Report. 97. In addition, the Born-Alive Infants Protection Act of 2002, which was signed into federal law on 5 August, 2002, makes it clear that "every infant member of the species homo sapiens who is born alive at any stage of development" is considered a "person", "human being", and "individual" under federal law. See 1 U.S.C. • 8. This is true regardless of the nature of the birth, and whether the live birth resulted from a failed abortion procedure. Id. 98. Congress also enacted the Unborn Victims of Violence Act of 2004 "to protect unborn children from assault and murder." See Pub. L. No. 108-212. Federal law now provides that whoever, in the course of committing certain federal crimes, "causes the death of . . . a child, who is in utero at the time the conduct take place," is guilty of a separate offense and shall be punished as if that death had occurred to the unborn child's mother. See 18 U.S.C. • 1841(a). If the person engaging in such conduct intentionally kills the unborn child, he will be punished for intentionally killing a human being. See 18 U.S.C. • 1841(a)(2)(C). This law does not, however, authorize the prosecution of any woman with respect to her unborn child, see 18 U.S.C. § 1841(c)(3), nor does it criminalize "conduct relating to an abortion for which the consent of the pregnant woman, or a person authorized by law to act on her behalf, has been obtained or for which such consent is implied by law." See 18 U.S.C. § 1841(c)(1). 99. Assisted suicide. In recent years, debate has intensified in the United States over the question of whether terminally ill people should have the legal right to obtain a doctor's help in ending their lives. The campaign to legalize assisted suicide, also called the right-to-die movement, has been under way since the 1970s but became prominent in the 1990s, at least partly because of the actions of Dr. Jack Kevorkian, a retired Michigan pathologist. Kevorkian helped at least 50 people to die since 1990. In 1999, a Michigan jury convicted Kevorkian of second-degree murder and he is currently serving a 10 to 25 year prison sentence. 100. In November 1994, Oregon became the first state to make assisted suicide legal. Its law, passed by a slim margin in a voter referendum, allows doctors to prescribe a lethal dose of drugs to terminally ill patients who meet certain criteria. In June 1997, the Supreme Court upheld two state laws that barred assisted suicide. See, e.g., Vacco v. Quill, 521 U.S. 793 (1997); Washington v. Glucksberg, 521 U.S. 702 (1997). While finding that states could make assisted suicide illegal, the court also made it clear that states could legalize assisted suicide if they so chose. The debate over assisted suicide continues in the United States. Legislation legalizing the practice has been introduced in a number of states. However, physician-assisted suicide remains illegal in every state except Oregon. 101. The Attorney General has determined that assisting suicide is not a legitimate medical purpose and therefore that the Controlled Substances Act of 1970 ("CSA"), 21 U.S.C. § 801, bars physicians from prescribing federally-controlled substances to assist in a suicide. The validity of the Attorney General's determination is the subject of litigation and is scheduled for decision by the Supreme Court during the October Term 2005. See Gonzales v. Oregon, 125 S.Ct. 1299 (2005). 102. The Supreme Court has recognized that a state has "legitimate interests from the outset of the pregnancy in protecting . . . the life of the fetus that may become a child." See Planned Parenthood v. Casey, 505 U.S. 833, 846 (1992). Accordingly, it has held that "subsequent to viability, the state, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." Id. at 879. At the same time, the Supreme Court has held that a state may not place an "undue burden" on a woman's ability to abort a pregnancy prior to viability, and has invalidated some legislative efforts to protect an unborn child's right to life on this ground. See e.g, Casey, 505 U.S. 833; Stenberg v. Carhart, 530 U.S. 914 (2000) (invalidating a state-law ban on a procedure known as "partial birth abortion," because it failed to allow an exception for the mother's health, and because the vagueness of the statute's definition of the procedure it prohibited had the effect of placing an "undue burden" on a woman's ability to obtain abortion by prohibiting certain common methods of abortion). 103. In 2003, Congress enacted a federal prohibition on partial-birth abortion, finding that "[i]mplicitly approving such a brutal and inhumane procedure by choosing not to prohibit it will further coarsen society to the humanity of not only newborns, but all vulnerable and innocent human life, making it increasingly difficult to protect such life." See Pub. L. No. 108-105 at § 2(14)(M). This statute includes a more precise definition of the procedure it prohibits. In addition, the statute contains a congressional finding that "partial-birth abortion is never necessary to preserve the health of a woman, poses serious risks to a woman's health, and lies outside the standard of medical care." See Pub. L. No. 108-105 at § 2(13). The validity of this statute is currently the subject of litigation. 105. Criminal defendants in the United States, especially those in potential capital cases, enjoy many procedural guarantees, which are well respected and enforced by the courts. These include: the right to a fair hearing by an independent tribunal; the presumption of innocence; the minimum guarantees for the defense; the right against self-incrimination; the right to access all evidence used against the defendant; the right to challenge and seek exclusion of evidence; the right to review by a higher tribunal, often with a publicly funded lawyer; the right to trial by jury; and the right to challenge the makeup of the jury, among others. 106. In two major decisions described also in paragraphs 108 and 109, the Supreme Court cut back on the categories of defendants against whom the death penalty may be applied. In Roper v. Simmons, 125 S. Ct. 1183 (2005), the Court held that the execution of persons who were under the age of eighteen when their capital crimes were committed violates the Eighth and Fourteenth Amendments. In Atkins v. Virginia, 536 U.S. 304 (2002), the Court held that the execution of mentally retarded criminal defendants was cruel and unusual punishment, in violation of the Eighth and Fourteenth Amendments. The Supreme Court has repeatedly refused to consider the contention that a long delay between conviction and execution constitutes cruel and unusual punishment under the Eighth Amendment. See, e.g., Foster v. Florida, 537 U.S. 990 (2002). Also, the lower federal courts and state courts have consistently rejected such a claim. See, e.g., Knight v. Florida, 528 U.S. 990, 120 S.Ct. 459, 461 (1999) (THOMAS, J., concurring in denial of certiorari).
• Timothy McVeigh was executed by lethal injection at the U.S. Penitentiary at Terre Haute, Indiana, on 11 June, 2001. He had been charged with multiple offenses arising out of the 19 April, 1995, bombing of the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma, and resulting deaths of 168 victims. After a jury trial in the U.S. District Court for the District of Colorado, McVeigh was convicted of conspiracy to use a weapon of mass destruction, in violation of 18 U.S.C. § 2332a; use of a weapon of mass destruction, in violation of 18 U.S.C. § 2332a; destruction of government property by means of an explosive, in violation of 18 U.S.C. § 844(f); and eight counts of first degree murder, in violation of 18 U.S.C. § 1111 and 18 U.S.C. § 1114. McVeigh appealed to the court of appeals, which affirmed the convictions and death sentences. United States v. McVeigh, 153 F.3d 1186 (10th Cir. 1998). McVeigh then filed a petition for writ of certiorari in the U.S. Supreme Court, which denied the petition. McVeigh v. United States, 526 U.S. 1007 (1999). McVeigh later filed a motion to vacate his sentence under 28 U.S.C. § 2255 in the district court, which denied the motion and declined to issue a certificate of appealability. United States v. McVeigh, 118 F. Supp. 2d 1137 (D. Colo. 2000). McVeigh applied to the court of appeals for a certificate of appealability, which the court denied. McVeigh’s execution followed that decision. • Juan Raul Garza was executed by lethal injection at Terre Haute on 19 June, 2001. After a jury trial in the U.S. District Court for the Southern District of Texas, Garza was convicted of numerous offenses, including engaging in a continuing criminal enterprise, in violation of 21 U.S.C. § 848(a) & (c), and committing three murders while engaged in and in furtherance of a continuing criminal enterprise, in violation of 21 U.S.C. § 848(e). He was sentenced to death for each of the murders. The court of appeals affirmed. United States v. Flores, 63 F.3d 1342 (5th Cir. 1995). The U.S. Supreme Court denied his petition for a writ of certiorari. 519 U.S. 825 (1996). Garza filed a motion to vacate his sentence under 28 U.S.C. • 2255, and the district court denied the motion and declined to issue a certificate of appealability. Garza then applied to the court of appeals for a certificate of appealability, and the court of appeals denied the application. United States v. Garza, 165 F.3d 312 (5th Cir. 1999). The U.S. Supreme Court again denied certiorari. 528 U.S. 1006. Garza’s execution followed that denial. • Louis Jones was executed by lethal injection at Terre Haute on 19 March, 2003. A jury in the U.S. District Court for the Northern District of Texas convicted Jones, a retired U.S. Army Ranger, of kidnapping and killing Tracie McBride, a 19-year-old private in the United States Army, in violation of 18 U.S.C. § 1201(a)(2). The jury sentenced Jones to death. Jones was also convicted of assaulting Private Michael Peacock with resulting serious bodily injury, in violation of 18 U.S.C. • 113(f). Jones appealed his conviction and sentence, which the court of appeals affirmed. United States v. Jones, 132 F.3d 232 (5th Cir. 1998). The U.S. Supreme Court granted Jones’s certiorari petition and affirmed his conviction and sentence. Jones v. United States, 527 U.S. 373 (1999). The Supreme Court denied Jones’s petition for rehearing. See Jones v. United States, 527 U.S. 1058 (1999). Jones filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255. Following an evidentiary hearing, the district court denied the motion and Jones’s application for a certificate of appealability. Jones applied to the court of appeals for a certificate of appealability, which the court denied on 27 March, 2002. United States v. Jones, 287 F.3d 325 (5th Cir. 2002). The Supreme Court denied certiorari. 123 S. Ct. 549 (2002). Jones’s execution followed thereafter. 108. Juvenile Death Penalty. The application of the death penalty to those who commit capital offences at ages 16 and 17 had continued to be the subject of substantial debate in the United States. This debate was recently concluded by the Supreme Court in its ruling in Roper v. Simmons, 125 S. Ct. 1183 (2005), holding that the Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed. 109. Mental defect. The U.S. Supreme Court has restricted the death penalty, finding that it is a disproportionate punishment where the defendant is mentally retarded. See Atkins v. Virginia, 536 U.S. 304 (2002). In addition, a death penalty eligible defendant is entitled to an individualized determination that the death sentence is appropriate in his case, and the jury must be able to consider and give effect to any mitigating evidence that a defendant proffers as a basis for a sentence less than death. See Johnson v. Texas, 509 U.S. 350 (1993). Moreover, where the prosecution identifies the likelihood that a defendant will engage in violent conduct in the future as a basis for returning a death sentence and the only alternative to a death sentence is life without the possibility of parole, the jury must be informed that the defendant is parole ineligible, in other words, where a life prison sentence could not result in parole. See Simmons v. South Carolina, 512 U.S. 154 (1994). 110. Capital Punishment and Consular Notification. Since the initial report, a number of foreign nationals who were tried and sentenced to death by one of the states of the United States have sought to have their convictions or sentences overturned based upon the arresting authorities’ failure to provide timely consular notification to the foreign national as required under the Vienna Convention on Consular Relations (VCCR). Paraguay, Germany, and Mexico each brought suit against the United States in the International Court of Justice (ICJ) under the Optional Protocol to the VCCR, asking the court, inter alia, to order the United States to provide new trials and sentencing hearings to foreign nationals when the competent authorities in the United States had failed to provide consular notification as required under the VCCR. See Vienna Convention on Consular Relations (Paraguay v. U.S.), 1998; LaGrand (Germany v. U.S.), 2001; Avena and Other Mexican Nationals (Mexico v. U.S.). 111. The ICJ in LaGrand found that the appropriate remedy for cases in which German nationals are sentenced to severe penalties without having been provided consular notification was for the United States to provide, by means of its own choosing, review and reconsideration of the conviction and sentence taking into account the VCCR violation.[1] In March 2004, the ICJ reiterated in Avena that review and reconsideration was the appropriate remedy for 51 Mexican nationals who the court found had not been provided consular notification as required. [[1] In 1998, Paraguay withdrew its case, so the ICJ did not rule on the merits.] 112. On 28 February, 2005, President Bush determined that "the United States will discharge its international obligations under the decision of the International Court of Justice in Avena… by having state courts give effect to the decision in accordance with general principles of comity in cases filed by the 51 Mexican nationals addressed in that decision."[2] The U.S. government subsequently filed briefs with the U.S. Supreme Court and the Texas Court of Criminal Appeals in a case involving Ernesto Medellin, one of the individuals named in Avena. The government’s amicus briefs argue that the President’s decision is binding on state courts and, consistent with the U.S. government's longstanding interpretation of the VCCR, that the VCCR does not grant a foreign national a judicially enforceable right to challenge his or her conviction or sentence in the United States.[3] 113. The United States’ concerns that the ICJ’s decisions had interpreted the VCCR in ways not intended or anticipated by the Parties led the United States to withdraw from the Optional Protocol to the VCCR. The Optional Protocol is a purely jurisdictional treaty separate from the VCCR itself. Only about 30 percent of the countries that are Party to the VCCR have chosen to be a Party to the Optional Protocol. 114. The United States remains a Party to the VCCR and is fully committed to meeting its obligations to provide consular notification and access in the cases of detained foreign nationals. As part of its on-going effort to improve compliance with the VCCR, the Department of State’s Bureau of Consular Affairs has continued its aggressive program to advance awareness of consular notification and access. Since 1998, the State Department has distributed to federal, state and local law enforcement over 1,000,000 training videos, booklets and pocket cards that provide instructions for arrests and detentions of foreign nationals (the text of the booklet can be found at http://travel.state.gov/law/notify.html). State Department experts have conducted over 350 training seminars on consular notification and access throughout the United States and its territories. These included formal training events, presentations and other briefings at law enforcement and criminal justice agencies conferences, training academies and accreditation organizations, and judicial and legislative groups. The State Department has also produced an online training course that provides personnel with up-to-date, interactive training on the topic. 115. Victims of Crime. The Office for Victims of Crime (OVC) in the Department of Justice administers programs authorized by the Victims of Crime Act of 1984, in addition to the Crime Victims Fund (the Fund) also authorized by the same statute. The Fund is composed of criminal fines and penalties, special assessments, and bond forfeitures collected from convicted federal offenders, as well as gifts and donations received from the general public. Money deposited in this fund is used to support a wide range of activities on behalf of crime victims, including victim compensation and assistance services, demonstration programs, training and technical assistance, program evaluation and replication, and programs to assist victims of terrorism and mass violence. OVC administers two major formula grant programs: Victim Assistanceand Victim Compensation. During the past decade, these two formula grant programs have greatly improved the accessibility and quality of services for federal and state crime victims nationwide. 116. In 2003, Congress passed the Justice for All Act, which sets out the following rights of victims of federal crimes: The right to be reasonably protected from the accused; the right to reasonable, accurate, and timely notice of any public court proceeding, or any parole proceeding, involving the crime or of any release or escape of the accused; the right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding; the right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding; the reasonable right to confer with the attorney for the government in the case; the right to full and timely restitution as provided in law; the right to proceedings free from unreasonable delay; the right to be treated with fairness and with respect for the victim's dignity and privacy. 117. Officers and employees of the Department of Justice and other departments and agencies of the United States engaged in the detection, investigation, or prosecution of crime are required to make their best efforts to see that crime victims are notified of, and accorded, these rights. 118. In order to enforce these rights, the crime victim, the crime victim's lawful representative, or the government prosecutor may assert the rights in a federal court. Failure to afford a right does not provide a defendant grounds for a new trial, however, and the act does not create a cause of action for damages or create, enlarge, or imply any duty or obligation to any victim or other person for the breach of which the United States or any of its officers or employees could be held liable in damages. In addition, the Department of Justice was required, under the act, to create an ombudsman for victims rights and provide for training and possible disciplinary sanctions for employees who fail to afford victims their rights.
120. Victim Assistance. Each year, all 50 states, the District of Columbia and various U.S. territories are awarded OVC funds to support community-based organizations that serve crime victims. Approximately 5,600 grants are made to domestic violence shelters, rape crisis centers, child abuse programs, and victim service units in law enforcement agencies, prosecutors’ offices, hospitals, and social service agencies. These programs provide services including crisis intervention, counseling, emergency shelter, criminal justice advocacy, and emergency transportation. States and territories are required to give priority to programs serving victims of domestic violence, sexual assault, and child abuse. Additional funds must be set aside for underserved victims, such as survivors of homicide victims and victims of drunk drivers. 122. Victims of International Terrorism. In addition, the Victims of Crime Act (VOCA) (42 U.S.C. • 10603c) authorizes the OVC Director to establish an International Terrorism Victim Expense Reimbursement Program to compensate eligible "direct" victims of acts of international terrorism that occur outside the United States, for expenses associated with that victimization. 123. Victims of Trafficking. Victims who are considered to have been subjected to a severe form of trafficking, and who agree to assist law enforcement in the investigation of trafficking, may be eligible for immigration relief, including "continued presence" and the T-visa. These are self-petitioning visas, under the TVPA. If granted, a T-visa provides the alien with temporary permission to reside in the United States and may lead to legal resident status. The victim also receives an authorization permit to work in the United States. Article 7 - Freedom from torture, or cruel, inhuman or degrading treatment or punishment
|
