American Prisons: Some Perspectives

Today’s New York Times carries an editorial entitled “Prison Nation” in which recent statistics on the United States’ prison population released by the Pew Centre on the States are considered. According to these statistics, contained in a report entitled One in 100: Behind Bars in America 2008, the US’ prison population stands at approximately 1.6 million and racial disparities among those imprisoned are stark. The editorial argues that these statistics “point to a terrible waste of money and lives” and “underscore the urgent challenge facing the federal government and cash-strapped states to reduce their overreliance on incarceration without sacrificing public safety”. The editorial also acknowledges, however, that persuading politicians to reduce their reliance on incarceration will be difficult, “not least because building and running jailhouses has become a major industry”.

The editorial calls to mind two interesting publications. The first is an excellent edited collection entitled (coincidentally) Prison Nation: The Warehousing of America’s Poor (Amazon) which contains essays on inter alia privatization of prisons, racial disparities, sexual abuse, the HIV/AIDS crisis in American prisons.

The second is the Concluding Observations of the CERD on fifth and sixth periodic reports of the United States, which were released on February 28th. In these Concluding Observations the CERD expressed concern about “the persistent racial disparities in the criminal justice system…including the disproportionate number of persons belonging to racial, ethnic and national minorities in the prison population” (paragraph 20), the fact the “young offenders belonging to racial, ethnic and national minorities, including children, constitute a disproportionate number of those sentenced to life imprisonment without parole” (paragraph 21), and “the persistent and significant racial disparities with regard to the imposition of the death penalty, particularly those associated with the race of the victim” (paragraph 23).

Indirect Discrimination in Denominational Schools’ Admission Policies

The Jewish Free School (JFS) is considered the best Jewish school in the United Kingdom. As a result the school is over-subscribed. As in Ireland (under s. 7(3)(c) of the Equal Status Act 2000), denominational schools in the UK are entitled to favour children of the same denomination as the school in enrollment procedures. In the case of the JFS one of the selection criteria was to “be recognised as being Jewish by the Office of the Chief Rabbi of the United Hebrew Congregation of the Commonwealth” (JFS Admission Policy). It appears that the Chief Rabbi was, in the case of admissions to JFS, using a sub-rule for admissions that considered whether a child was ethnically Jewish (i.e. having at least one Jewish parent or grandparent), with ethnic Jews being preferred in the case of over subscription to the school.

Yesterday the Chief Schools Adjudicator ruled that the exclusion of a child whose mother (who incidentally is head of English at the school) was a convert to Judaism and not, therefore, ethnically Jewish, was “indirect” discrimination. Importantly, however, the CSA also held that there was no race-relations implication in preferring Jewish students over non-Jewish students, finding instead that this was a matter of religion.

The question of ‘indirect discrimination’ in school admission policies may become germane in Ireland as schools (particularly at primary level) continue to be oversubscribed. Can a Catholic school, for example, not only prefer Catholic children to non-Catholic children in its admission policies but then prefer some Catholic children to others if the number of applicants still out-strips the number of available places? Would it be permissible to narrow down the field of applicants based on the frequency of a child’s attendance at church services? Or based on whether their parents went to Catholic schools? Or based on whether their parents are Catholic? It is clear that the JFS admission criteria were not attempts to assess levels of genuineness of religious conviction or levels of religious conviction; Judaism is an ethnicity as well as a religion, the same is possibly not true of Catholicism (although see O’Toole, “Ethnic Catholicism in Boston” (1992) New England Quarterly 117 for an alternative view). However questions of indirect discrimination may begin to arise in Ireland, and the JFS case suggests that s. 7(3)(c) of the Equal Status Act may not allow for such admission policies on the part of denominational schools.

This story is also reported in The Guardian and Ha’aretz.