"They keep you wrapped up in civil rights. And you spend so much time barking up the civil-rights tree, you don't even know there's a human-rights tree on the same floor.

When you expand the civil-rights struggle to the level of human rights, you can then take the case of the black man in this country before the nations in the UN. You can take it before the General Assembly. You can take Uncle Sam before a world court. But the only level you can do it on is the level of human rights. Civil rights keeps you under his restrictions, under his jurisdiction. Civil rights keeps you in his pocket. Civil rights means you're asking Uncle Sam to treat you right. Human rights are some thing you were born with. Human rights are your God given rights. Human rights are the rights that are recognized by all nations of this earth. And any time any one violates your human rights, you can take them to the world court. Uncle Sam's hands are dripping with blood, dripping with the blood of the black man in this country. He's the earth's number-one hypocrite."

The Ballot or the Bullet
Malcolm X, Cleveland, Ohio, May 3, 1964

Click here to listen to the speech.

Those of us who use civil rights law as a tool for social and racial justice are dealing with a useful tool, but a flawed tool of limited capabilities. America's legal system can be utilized to bring about change up to a certain point.

At the same time, there are a host of international human rights conventions and treaties to which the United States is a signatory. Yet, America does not seem to live up to these international standards. For all of its self-promotion as the world's best and greatest democratic system, the U.S. Constitution is restrictive, and U.S. civil rights law is not nearly as generous or inclusive as international human rights law. America, it seems, bestows rights only sparingly, with the utmost reluctance and tentativeness. This reflects the schizophrenic nature of the country: one with great promise, yet a legacy of the denial of rights to many, and the bestowing of rights only through struggle, social upheaval, bloodshed and martyrdom.

Meanwhile, the Bush criminal enterprise uses the apparatus of power to engage in the wholesale denial of our civil rights and civil liberties. Domestic spying, warrantless wiretaps, kangaroo tribunals and secret prisons, characteristics of a repressive police state, are the norm. The Justice Department has been rendered a discredited partisan tool, redesigned to eviscerate the voting rights of the poor and citizens of color, and to deliver victory to Republican political candidates. Placing the sworn enemies of civil rights in charge of the department's civil rights division is about as implausible as allowing fugitive slave catchers as conductors on the Underground Railroad. And not unlike the cold-blooded Dred Scott and Plessy courts, those who seek freedom, justice and relief from oppression should expect nothing but grief and disappointment from today's Christian conservative Supreme Court.

Human rights law offers another way. The International Convention on the Elimination of All Forms of Racial Discrimination, also known as the Race Convention, or CERD, defines the term racial discrimination as "any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life."

While the international standard for racial discrimination examines both the purpose (or intent) and effect of the discrimination, the U.S. constitutional standard cares only about purpose. In a nation rife with institutional racism from its inception, one which engages in the criminalization of race, proving intent without being able to show the effect is a difficult standard. In other words, if someone has violated you, you have to prove that the person meant to do it, but you can't discuss its impact on you. The deck is stacked against you in the process.

Through its institutional practices, the U.S. violates human rights law as a matter of course. American jurisprudence fails to acknowledge the decisive effect of slavery, the legal apartheid of the Deep South and the reign of terror during Jim Crow segregation in today's criminal justice system. It can't get beyond race because it refuses to get into it. And in many instances, it accepts racial bias as inevitable, and knowingly and willingly accommodates bias in the administration of justice.

America's school to prison pipeline is based upon race, and youth incarceration is the gateway to adult incarceration. In a nation whose incarceration rate for youth is greater than the adult incarceration rate for many countries, and whose incarceration rate for African American men is greater than that of apartheid South Africa, Black and Latino youth are far more likely than their white counterparts to wind up in the system. In many places, one is hard pressed to find white juvenile inmates in any significant numbers because they are not steered toward prison. Black youth are 16 percent of youth, yet 28 percent of those arrested, 40 percent of youth in detention, and 58 percent of youth in state prisons. It should also be noted that the U.S. is the only nation that will sentence a 13 year old to a term of life imprisonment.

While we decry torture in other nations, the practice is alive and well in the United States. The ringleader of the Abu Ghraib abuse scandal in Iraq learned the tricks of the trade as a guard at SCI Greene, a state prison in Pennsylvania. And in Chicago, over 135 African American men were tortured by police in the 1970s and 1980s in order to coerce false confessions. The victims of Vietnam War-style torture techniques, some of them ended up on death row as a result of these confessions. Guns were forced into their mouths, bags were places over their heads, and electric shocks inflicted to their genitals.

And capital punishment is plagued by racial bias. That's because the death penalty in America is inherently racist. And there's no changing that.

Capital punishment is legalized lynching, the ritualized use of deadly force to teach the community a lesson. It brings the Jim Crow lynch mob into the courtroom, legalizes it, and makes it respectable. The system which administers death is concerned far more with expediency and finality than with justice, equity or error for that matter, which explains the 124 innocent inmates exonerated from death row since 1973.

The single factor which determines who is likely to receive the death penalty is whether the victim is white. According to Amnesty International, over the past 30 years an overwhelming majority of people executed in the U.S.—over 80 percent— were convicted of killing a white victim. African Americans, however, are about half of all murder victims, and one-third of America's death row.

It is no mistake that with a few exceptions such as Pennsylvania and California, the most voracious appetites for the death penalty are found in the former states of the Confederacy, where eighty percent of executions take place. Oklahoma, Virginia and Texas alone account for over half of all executions over the past 10 years. And Texas, with less than eight percent of the nation's population and nine percent of the nation's murders, accounts for 36 percent of all executions since 1977. Texas is poised to join Louisiana and a few other states by reintroducing the South's revered tradition of imposing the death penalty for the crime of rape.

One of the higher profile cases implicating the role of racism in the application of the death penalty is that of journalist and former Black Panther Mumia Abu-Jamal. Convicted and sentenced to death by a mostly white jury for the 1981 murder of Philadelphia police officer Daniel Faulkner, the trial judge, Alfred Sabo—who presided over 32 death row convictions during his career, 24 of which were reversed— was heard saying "I'm going to help them fry the nigger." The prosecutor used over two-thirds of his strikes to remove African American jurors, yet only 20% to 25% of white jurors. Philadelphia's District Attorney's office very actively employed racist tactics in the jury selection process during that time. And a 1998 study revealed that, even after accounting for case differences, the chances of receiving a death sentence in Philadelphia are four times higher if the defendant is African-American.

Mumia's case has received worldwide attention, and has helped to shed light on America's inherently racist application of the death penalty. A three-judge federal appeals court panel recently held a hearing to decide whether Mumia should be granted a new trial. Will justice be served? Time will tell.

Pondering the problems of race and the law in America, I am reminded of remarks by attorney Bryan Stevenson, Executive Director of the Equal Justice Initiative of Alabama. Stevenson recently told attendees at a human rights conference at American University's Washington College of Law that he became accustomed to wearing a nametag with the word "attorney" while in the courtroom. Given that the defendant is typically the only Black face in a courtroom, and Stevenson was often mistaken for the defendant, he felt that this step was necessary.

The international human rights legal arena may be the last best hope for those who seek justice at home. Although "lady justice" sits on courthouse steps throughout the country holding scales and wearing a blindfold, the scales are often rigged and the blindfold has a peephole. Malcolm was on point 40 years ago when he identified the need to seek human rights rather than mere civil rights. It is just unfortunate that little has changed, and his words are just as poignant today as they were back then.

BlackCommentator.com Columnist David A. Love is an attorney based in Philadelphia, and a contributor to the Progressive Media Project and McClatchy-Tribune News Service. He contributed to the book, States of Confinement: Policing, Detention and Prisons (St. Martin's Press, 2000). Love is a former spokesperson for the Amnesty International UK National Speakers Tour, and organized the first national police brutality conference as a staff member with the New York-based Center for Constitutional Rights. He served as a law clerk to two Black federal judges. Click here to contact Mr. Love.