The US should seize the opportunity for global leadership on racial justice

The United States signed the United Nations racial discrimination treaty in the summer of 1966, less than a year after the passage of the Voting Rights Act and two years after the enactment of the Civil Rights Act. The Senate took another 28 years to consent to ratification. 

Even though the treaty has long been the law of the land, it has never been fully implemented. The United States has about as contentious a relationship with the human rights movement as it does with domestic campaigns against racism and xenophobia. 

Today and Friday, at United Nations hearings in Geneva, the Biden administration has a chance to commit to real progress on both, as the U.N. Committee for the Elimination of Racial Discrimination examines the U.S.’s record of combating racial discrimination.

In nearly three decades, the U.S. has failed to make enough progress on eliminating discrimination to make good on its treaty obligations. A report published this week by the American Civil Liberties Union and Human Rights Watch (we are co-authors) details many of the biggest shortcomings.

Racial minorities in the U.S. experience much less economic security than their white counterparts — the average white family has many times the wealth of the average Black family — and that racial wealth gap has actually grown since the U.S. signed up to the treaty. Black and brown communities endure severe disadvantages due to the ongoing effects of discriminatory policies in land and home ownership, denial of health care and segregation in education. The ongoing COVID pandemic has only exacerbated these disparities.

In our view, there are three key areas where decisive executive action by the Biden administration could significantly improve U.S. compliance with this important treaty: reparations, criminal justice and immigration. 

First, the Biden administration could announce a federal commission (and more actively support pending legislation) to develop reparations proposals for the descendants of enslaved peoples. The review of the U.S. record comes at a moment of reckoning with the legacies of enslavement, colonial rule and racism worldwide. The U.N. High Commissioner for Human Rights has called on the U.S. and other governments to make this a “turning point” in her recent report on racial discrimination and excessive use of force by law enforcement. 

President Biden could lead on this issue by taking executive action creating a reparations commission and by supporting initiatives to address the enduring legacy of slavery. A reparations commission would be empowered to explore a full range of remedial policies that could eliminate discrimination in — and promote substantive equality across — wealth, income, health and maternal mortality, access to social services and educational opportunities. The administration should also direct this commission to assess whether establishing minimum federal benefit levels would alleviate persistent racial disparities in these areas. The Biden administration has the perfect opportunity this week to advance remedial principles enshrined in the U.N. racial discrimination treaty and make reparations a part of federal policy.

Second, the Biden administration could announce a set of federal reforms to be implemented by the Department of Justice. Much (though by no means all) of the systemic racism embodied in the U.S. leadership as the preeminent incarceration nation is driven by state and local law enforcement and prosecutors disproportionately enforcing laws forged in a context of white supremacy. But the federal government has a lot of power and influence to wield. 

For instance, the Biden administration can declare a moratorium on the federal death penalty; pursue commutation of all federal death sentences; establish a presumption of release for those serving unjust, excessive sentences by issuing mass, categorical clemency grants; fund local pilot programs that explore alternatives to policing and pre-trial incarceration; condition federal funds to law enforcement on robust early warning and accountability systems (rather than funding more policing); and, finally, unconditionally decline to prosecute children as adults in the federal system. 

The Department of Justice could also study the need to abolish the exception in the Constitution’s 13th Amendment that permits forced labor as punishment for a crime. These steps — all within the power of the president and attorney general — would bring the U.S. into greater compliance with the U.N. racial discrimination treaty and serve as a clarion call for justice reform actions to be taken around the country that would dismantle major drivers of racism in the abuse of state power. 

Third, the Biden administration could take decisive action aimed at reducing discrimination in the enforcement of immigration laws. The U.S. has acknowledged to the U.N. that “discrimination against immigrants” is one factor driving the “subtle and elusive” forms of discrimination that “persist in American society.” The administration can take immediate action to address those forms of discrimination by phasing out immigration detention — starting with immediately shuttering facilities where officials have repeatedly abused immigrants’ rights — and establishing a clear prohibition on the use of racial profiling in border or immigration enforcement. 

Federal power should never be differentially applied by law enforcement based on actual or perceived race, ethnicity, religion, nationality or English proficiency, and the Biden administration has the power to operationalize that principle. At the state level, the Department of Justice could bring civil rights litigation to eliminate discriminatory local initiatives targeting immigrants, such as Texas’ Operation Lonestar. Finally, the administration could study immigration laws that must be repealed or reformed because they effectuate racial animus or have a discriminatory effect, as one federal judge has found in relation to the federal illegal reentry statute. Actions like these would reduce racial disparities in immigration enforcement and help the U.S. live up to the commitment it made decades ago when it signed up to the treaty to protect migrants’ rights as human rights. 

This is a special moment in the fight for racial justice in the U.S. On the heels of the Trump administration, which often framed its policies in explicitly racist or xenophobic terms and against the stark racial disparities in COVID’s toll, the public is especially conscious of the importance of valuing Black and brown lives degraded by systemic racism. The Biden administration has already signaled a willingness to take up the cause of eliminating discrimination by promoting racial equity. 

Hearings this week in Geneva will show just how far the U.S. has to go. President Biden should take advantage of this singular opportunity to recognize the work that remains to be done — and to begin to do it.  

Ian M. Kysel is an assistant clinical professor of Law at Cornell Law School. Anjana Malhotra is a senior attorney at the National Center for Law and Economic Justice. G. Alex Sinha is an Associate professor at the Maurice A. Deane School of Law at Hofstra University.