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 Abstract

Excerpted From: Zachary Parrish, Locked up and Locked down in the Land of the Free: A Look at the United States' Prisons and Covid-19's Disproportionate Effect on Black Americans' Right to Health, 37 American University International Law Review 391 (2022) (314 Footnotes) (Full Document)

The United States is infamous for having a large percentage of its population in prison. Each year since 2002, the United States has reported a higher incarceration rate than any other country in the world. Another unfortunate but widely prevalent issue that the United States has is systemic racism. The combination of the United States' struggles with systemic racism and mass incarceration makes for a disproportionately devastating impact on Black Americans. As a result, Black Americans make up a disproportionate amount of the prisoners that fill American prisons.

Nonetheless, the United States took several steps in the right direction for civil rights, including signing and ratifying the International Convention on the Elimination of All Forms of Racial Discrimination (the Convention). This Convention was created to “adopt all measures for speedily eliminating racial discrimination in all its forms and manifestations, and to prevent and combat racist doctrines.” Among many rights arising from this treaty, Article 5 of the Convention includes the right to health.

Although there is evidence that Black Americans are disproportionately impacted by health issues in prisons, the Convention's right to health became especially relevant with the outbreak of COVID-19, the highly infectious disease that caused a global pandemic in 2020. According to health experts, COVID-19 is at its most lethal when people are gathered in large masses, especially for those without protections such as masks and adequate access to sanitizing equipment who are unable to maintain a distance of six feet between each other. American prisons often did not provide these protections to their inmates. As such, the disproportionate mass incarceration of Black Americans, fueled in large part by systemic racism, exacerbated the impact of COVID-19 on imprisoned Black Americans in a deadly way.

This Comment argues that the United States violated Articles 2 and 5 of the International Convention on the Elimination of All Forms of Racial Discrimination through its institutionalized discriminatory practices, which have caused Black Americans to die at highly disproportionate rates within its prisons. Part II of this Comment provides background information on the mass incarceration of and systemic racism against Black Americans, describes how COVID-19 has hit the Black American community the hardest within prisons, outlines the primary goals of the Convention and the right to health, examines cases where the right to health was violated, and explores the United States' history with human rights treaties. Part III of this Comment argues that the United States is bound by the Convention and violated it in light of the COVID-19 pandemic and its disproportionate effect on Black American inmates. Part IV recommends three actions that the United States should take in response to the COVID-19 pandemic to comply with the Convention, they are: (1) release prisoners of nonviolent crimes that are considered at high-risk for COVID-19, (2) ensure adequate personal protective equipment for prisoners and staff, and (3) cease the use of solitary confinement as a means of social distancing. Part IV then suggests three actions the United States should take to stay in compliance with the Convention in anticipation of a future pandemic: (1) provide a consistent and accurate flow of information regarding safety precautions, (2) implement independent quality oversight in all prisons, and (3) reform the criminal justice system.

[. . .]

The United States is often criticized in the international community both for having the highest proportion of its citizens behind bars globally, and for its history of racism against Black Americans. Despite its many reservations, the United States ratified the Convention and committed itself to eliminating racial discrimination, including any discrimination that pertains to the right to health. However, the racially discriminatory practices within the criminal justice system disproportionately deprived Black American prisoners of their right to health.

The United States violated Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination by not administering adequate living conditions in their prisons during the COVID-19 pandemic, which led to disproportionately high deaths of Black Americans. It must comply with the Convention that it ratified and take swift action to ensure more lives are not lost because of racial discrimination.

Zachary A. Parrish is a Juris Doctor/Master's Degree Candidate, 2022, at American University Washington College of Law in Washington, D.C., where he has focused his studies on international human rights and criminal defense.

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