Ohio v. Clark is a lesser reported, but as significant as any, case decided this Supreme Court term. This case raises concerns regarding an often unprotected class: children.
Three year old L.J. arrived at pre-school with bruises. When his teachers spoke with him, L.J. indicated that his mother’s boyfriend, Clark, hurt him. L.J.’s statements were admitted at trial and Clark was convicted. The fundamental issue before the Court was whether the child’s statements were properly admitted, particularly in light of Crawford v. Washington. In a 9-0 opinion, the Court held that the statements were properly admitted. In doing so, the Court relied on Crawford’s applicability only where statements are testimonial in nature and made for purposes of substituting for live witness testimony. The Crawford test presumes that the speaker is available for trial. “This Court’s decision in Crawford v. Washington, … held that the Confrontation Clause generally prohibits the introduction of 'testimonial' statements by a non-testifying witness, unless the witness is 'unavailable to testify, and the defendant had had a prior opportunity for cross-examination." A statement qualifies as testimonial if the "primary purpose" of the conversation was to “creat[e] an out-of-court substitute for trial testimony.”
L.J. was deemed unavailable for trial due to his young age. Neither the setting of the questioning nor the reason for the inquiry supported the responses as testimonial in nature. The use of L.J.’s statements at trial was not, then, in violation of the Sixth Amendment’s Confrontation Clause.
The opinion is important because it enchances the ability of the state to protect children through prosecution of their abusers.
However, what is significant for those who represent abused parents is the often judicially ignored connection between abuse of a woman’s children when the mother herself is abused. The Supreme Court implicitly noted the interconnectedness. Justice Alito’s opinion begins: “Darius Clark sent his girlfriend hundreds of miles away to engage in prostitution and agreed to care for her two young children while she was out of town.” L.J.’s bruises were discovered the very next day.
Forced prostitution is often a tool of intimate partner abuse. Experienced advocates have heard client disclosures of being forced into sex work by the current or former intimate partner. The culture may refer to men such as Clark as “pimp”, but to someone such as L.J.’s mother he is “boyfriend”.
To researchers, the child abuse was predictable. When a mother is abused, the chances that her children will be abused hovers around 50%. Some studies place the risk higher. How heartening it would be for the U.S. Supreme Court to explicitly acknowledge this connection, even in a footnote. Advocates for abused mothers would find their work in family court so much easier if only one SCOTUS case supported the empirical data that family courts so often ignore.
Thursday, July 2, 2015
by Fran Quigley
When Bernetta Boatright learned that her co-workers were trying to form a union in her job at an Indianapolis International Airport-based food service company, she wasn’t sure what to think.
She asked her sister for advice, and she told Boatright, “You better sign up for the union—it may save you your job.”
Boatright thought it unlikely that she would need to worry about that. She had been on the job for 15 years, with a spotless record in roles in food preparation and as a sometimes-cashier. But she signed up as a member of UNITE HERE Local 23 anyway.
Not long after, a cash register came up short on Boatright’s shift. A manager decided Boatright should be automatically fired, despite her long tenure and her repeated insistence that she had not taken a nickel. The manager took Boatright’s ID badge and escorted her out the door.
She was scared and humiliated, and not sure what to do.
For most Indiana workers, the story would end there. As part of our law school clinic, my students and I represent low-income workers in our community. Like Boatright, many have recently lost their jobs. Suddenly, they find themselves without money to pay the rent or feed their families.
Countless times, we have had to break the bad news about these workers’ rights under Indiana law. To be blunt, they don’t have many. If they are not among the very few workers with an employment contract, and if their boss did not fire them because of their membership in a handful of legally-defined protected classes, there is little chance to fight the termination.
The doctrine is called employment at-will, and it is the law in almost all states. A judge I once clerked for called it “employment at-whim.” For the most part, employers have free rein to fire who they want when they want.
But some Indiana workers have more security. Union members usually have the protection of contracts saying they can only be fired for good cause, and that a decision by the boss is subject to a review process.
So a distraught Boatright called her co-worker and union steward, Marcus Gibson, and told him what happened. Gibson is several decades younger than Boatright, but she knew he would fight for her. Gibson contacted the company leadership, cited the contract, and demanded a review of the decision.
When I ask workers what they value about being in a union, I expect them to talk about the increased pay and benefits that reliably flow from collective bargaining. Instead, most answer with a variation of one word: Respect.
Their union contract means they cannot be treated as disposable parts, they say. Their rights as employees—as human beings—must be honored in the workplace.
At one time, Bernetta Boatright did not understand that. She does now. She knows she has rights, and she knows that she and her union steward can make sure they are enforced.
She also knows that her sister’s advice was well-taken. Thanks to her union, Bernetta Boatright has her job back.
Wednesday, July 1, 2015
Last week, human rights advocates around the country – and indeed around the globe – celebrated the majority opinion in Obergefell v. Hodges. In the coming days, weeks, and years, scrutiny of every passage of the Supreme Court’s opinion will continue.
One short passage in Chief Justice Roberts’ dissent should not be overlooked, as its implications for access to justice are potentially far-reaching. Near the end of his dissent, the Chief Justice wrote:
“[H]owever heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause.”
Setting aside the fact that the Chief Justice offers no empirical evidence to support this claim that true acceptance is won only by pursuing change through the legislature, the statement is an ominous warning to others who suffer discrimination: pursue justice through the courts and you won’t be truly accepted. Ever.
Taken to its logical conclusion, it appears Chief Justice Roberts would take the view that African-Americans should not have pursued Brown v. Board of Education and other challenges to discriminatory treatment, but instead should have tried to win the hearts and minds of whites through state legislative initiatives. Likewise, women should not have challenged discrimination in the workplace or elsewhere but should have awaited “true acceptance.”
The courts by their very nature exist to protect individuals who are subjected to discrimination and other rights violations and are unable to avail themselves of legislative solutions because they are not part of the majority. Maybe it was a moment of hyperbole as the Chief Justice tried to assert the issue was one for the legislature. Still it’s worrisome when the Chief Justice of the highest court in the land espouses the view that it is a mistake to challenge discrimination through the courts.
Tuesday, June 30, 2015
by Richard J. Wilson, guest contributor, American University Washington College of Law
Yesterday’s 5-4 decision by the Supreme Court in Glossip v. Gross was, in one way, the affirmation of a longstanding pattern in the court. As both the majority and concurrences point out, the court has never struck down a state’s chosen procedure for carrying out the death penalty. Hanging, electrocution, lethal gas, the firing squad, and lethal injection itself have all withstood constitutional scrutiny. The court had previously upheld a three-drug protocol for lethal injection seven years ago in Baze v. Rees. Here, both the district court and court of appeals had upheld Oklahoma’s use of a different three-drug protocol involving the use of midazolam, a sedative used with the other drugs to induce a state of unconsciousness. The majority opinion, authored by Justice Alito, pointed out that the petitioners had to show the likelihood that they would prevail on the merits, and that the lower courts had not committed “clear error” on the facts. The petitioners failed to carry their burden to show that Oklahoma’s amended protocol poses an “objectively intolerable risk” of severe pain, the majority concluded, and the lower courts’ decisions were affirmed. Simple. So why did the opinion run to 127 printed pages, with two concurrences and two dissents that each were significantly longer than the majority’s ruling? Why were there frequent text and footnote attacks on colleagues’ flawed logic or analysis, often hostile and vitriolic? This is a deeply polarized court on the application of the death penalty itself, and in Glossip, the justices bared their claws for that fight.
This decision brings human rights home in two significant ways. First, the case itself arises from a highly effective international boycott on the manufacture and sale of one of the drugs approved by the court in Baze, a drug that had become the primary sedative in the three-drug protocol used by most states in carrying out lethal injections. As Justice Alito says in his opinion, “activists” and “anti-death-penalty advocates” pushed companies in Europe to stop sale of the drug in question to U.S. prisons for use in executions. While the Alito opinion suggests that this was a civil society movement alone, it in fact was backed by the European Union governments themselves, whose 28 member countries have strongly opposed the use of the death penalty in the United States. Rather than simply expressing their views in the media or in the courts, these governments acted to support what has been called a “moral marketplace,” putting pressure on European companies not to sell execution-related drugs in the U.S. The use of substitute drugs in the lethal injection protocol had led to a number of botched executions across the country, far more than only the state killing of Clayton Lockett in Oklahoma, a shocking example briefly alluded to in the majority opinion and described in graphic detail in Justice Sotomayor’s dissent, joined by Justices Breyer, Ginsburg and Kagan. How effective the execution drug boycott will continue to be after Glossip remains to be seen.
A second, and perhaps more significant development, was the separate dissent by Justice Breyer, joined by Justice Ginsburg. Breyer’s opinion raises the core question of whether the death penalty itself violates the constitution. It documents a sordid history of executions of innocent people, scores of exonerations of death row inmates over the years, arbitrariness in the death penalty’s imposition, the lack of adequate funding for defense counsel, and protracted delays in execution, now averaging around 18 years. Justice Breyer’s careful documentation and data on those issues provoked strong attacks from both Justices Scalia and Thomas, each of whom wrote a special concurrence solely to assault the Breyer position. Justice Scalia, always ready with barbs and unbecoming sarcasm when in the minority, calls the Breyer opinion “a white paper devoid of any meaningful legal argument,” an argument “full of internal contradictions and (it must be said) gobbledy-gook.” He concludes his opinion with this sentence: “Justice Breyer does not just reject the death penalty, he rejects the Enlightenment.” Harsh words for a cordial colleague. Yet neither he nor the ever-silent Justice Thomas addresses Breyer’s core arguments on exonerations, the right to counsel, or racial disparities in the imposition of the death penalty.
Justice Breyer invokes comparative and international law arguments in his attack on capital punishment. Noting that death row inmates stay in solitary confinement over long periods of time on death row, Breyer refers to the UN’s Special Rapporteur on Torture, who has called for a ban on solitary confinement over 15 days. He rehearses an argument often successfully made in other courts around the world: the agonizing years of uncertainty while awaiting execution, exemplified in the decision by the European Court of Human Rights in Soering v. United Kingdom. There, the court refused to extradite a murder suspect to the United States because of the risk of the prolonged wait on death row, which the court found would be cruel, inhuman or degrading. Breyer invokes that case and similar decisions from Canada, Jamaica, Zimbabwe, and South Africa. He notes that he relies “primarily on domestic, not foreign events” in arguing that the death penalty is “unusual,” anticipating Scalia’s rant about the non-existence of a “world community,” yet notes that in 2013, only 22 countries of the 193 countries in the world carried out an execution, and only eight, including the United States, executed more than 10 individuals. The Inter-American system for human rights protection has never directly addressed the question of methods of execution as a human rights violation, but a decision on admissibility in Medina v. United States, suggests that they will find the use of the electric chair to constitute such a violation. The death penalty is inexorably fading away in practice around the globe, and Justice Breyer is yet another of many Supreme Court members who are its prophets of doom.
I cannot, in good conscience, end this post without a brief allusion to the bizarre requirement, added in the court’s majority opinion, that, in order to prevail on their claim of unconstitutionality, the petitioners themselves must offer a “known and available alternative” method of execution that is not intolerably painful. As Justice Sotomayor aptly notes in her dissent, “some condemned inmates may read the Court’s surreal requirement that they identify the means of their death as an invitation to propose methods of execution less consistent with modern sensibilities.” Et tu, death row inmates?
Monday, June 29, 2015
by Michael Meltsner, guest contributor*
Today’s Supreme Court’s 5-4 ruling in the lethal injection case from Oklahoma (Glossip v Gross) is much more than another rejection of last minute efforts by condemned inmates to avoid execution. On the surface, the Court’s holding is straightforward enough-- a majority of the Justices believed the anti-anxiety drug midazolam would sufficiently render a prisoner unconscious so he would not suffer unbearable pain when administered the remaining drugs in the three drug cocktail employed to conduct the execution.
But the opinions of the five Justices who wrote (Justice Alito for the Court majority, Justices Scalia and Thomas concurring and Justices Breyer and Sotomayor dissenting) explicated and hardened tense disagreements (and also an unusual personal dimension of animosity) that were first exposed to the public during the oral argument of the case in April.
Most significantly, two more Justices, Breyer and Ginsburg, joined the parade of Justices and former-Justices who regard the death penalty as inconsistent with the Constitution’s Eighth Amendment prohibition against cruel and unusual punishment. Justice Breyer’s opinion in this regard is the sort of tour de force critique of current practice that will be sure to affect the views of judges and justices in the future.
Breyer’s views about the unreliability, arbitrariness and crime deterring ineffectiveness of capital punishment were met by a level of hostility from Justice Scalia that carries even his opinion writing record of sarcasm and vitriol to new heights.
Breyer wrote “gobbledy-gook,” he “contorts” the constitutional text, his arguments are “devoid” of logic and so on. So much anger leaks from Scalia’s opinion that one is tempted to surmise that given the last decade’s exonerations, frequency statistics and behaviorial changes leaning against the death penalty (all described by Breyer) Scalia sees the ultimate end of a death penalty and is furious.
But this is a sideshow, if an important one. Today’s decision reaffirms that five justices still support the constitutionality of capital punishment and given that, they are unwilling to interfere with the state’s experimenting with a still unproved method of execution. Two executions, one in Oklahoma and one in Arizona that employed the drug were botched. Florida claims it has used midazolam safely.
From a doctrinal perspective, Justice Alito’s opinion has controversial aspects. The Court defers in part on a trial court’s findings at a preliminary hearing that, based on a medical witnesses’ testimony, a higher dosage of the drug will work effectively even though the finding is contested by others. Should problems with the drug arise in the future, the Court can rule that the condemned in this case simply did not produce sufficient evidence of risk. Additionally, the Court announced that challenging a method of execution requires proof that a less painful method exists and is available. This will strike many constitutional lawyers as odd. It only seems to make sense if the Constitution’s ban on cruel and unusual punishments is ultimately conditioned by a requirement that there be a death penalty. Justice Sotomayor calls a version of the Court’s argument here a “flawed Syllogism”: Some method of execution must be available, holds the Court, so the condemned must come forward with an acceptable and available method to prevail. But the Constitution rejects a cruel and unusual method of death, regardless of the crime committed or other methods conceivable.
This last dispute underscores what is really going on here, under cover of the lethal drug controversy. Five Justices at this time wish to retain capital punishment; four do not.
*Michael Meltsner is Matthews Distinguished Professor of Law at Northeastern Law School. In awarding him an honorary doctor of law in 2012, John Jay College named him the “principal architect” of the legal abolition movement for his work with the NAACP Legal Defense Fund.
The Supreme Court's 5-4 decision in Glossip v. Gross, upholding Oklahoma's death penalty methodology, was not unexpected. Justice Alito wrote the majority opinion, holding that the inmates failed to establish a likelihood of success in their claim that the particular combination of drugs used in Oklahoma's executions violated their 8th amendment rights.
However, the case yielded two dissenting opinions: one by Justice Sotomayor and a second, powerful summary of the larger case against the death penalty, by Justice Breyer, joined by Justice Ginsburg.
As both the majority and dissenters note, it was European opposition to the death penalty that created the occasion for this case in the first place -- many manufacturers did not want their drugs used in executions, so Oklahoma had to scramble for alternative protocols. Justice Breyer, however, goes further to bring the international perspective on the death penalty to bear on the case. Long a proponent of looking abroad for inspiration and insight, Justice Breyer adds a number of foreign and international law cases to the domestic support that he musters for his assertion that prolonged death row delays are cruel and unusual. Further, he notes the UN position in opposition to the death penalty, arguing that U.S. isolation in this regard should encourage reconsideration of the court's approach to the issue.
The debate between Justice Breyer, armed with facts and figures like the former Senate staffer that he is, and Justice Scalia, who responds in a concurring opinion that Breyer's assertions are so much "gobbedly-gook," is an important one -- and it's a small measure of success that it's now taking place with such vigor at the Supreme Court.
For more commentary on the Glossip opinion, see Michael Meltsner's analysis, http://lawprofessors.typepad.com/human_rights/2015/06/the-lethal-injection-decision.html. We will be posting more commentary soon.
Friday, June 26, 2015
by Noah B. Novogrodsky, guest contributor
Today’s Supreme Court decision in Obergefell v. Hodges made scant explicit reference to foreign or international law, save for a brief reference in Justice Kennedy’s majority opinion to the traditional gender-differentiated definition of marriage held “here and throughout the world.” This is perhaps unsurprising because the Court had before it amicus briefs from opposing groups of foreign law experts (unlike Lawrence vs. Texas) and the international human rights treaties binding the United States are silent on the question of whether a state must issue marriage licenses to same-sex couples.
Nonetheless, the Court’s marriage equality ruling will interest comparative Constitutional scholars for at least three reasons. First, the structure. The majority’s holding that “The history of marriage is one of both continuity and change. That institution—even as confined to opposite-sex relations—has evolved over time” rejects any semblance of strict originalism and appears to embrace an analysis of contemporary understandings that is closely akin to the Supreme Court of Canada’s ‘living tree’ doctrine.
Second, the opinion embraces the notion of human dignity and makes it a central tenet of constitutional interpretation. “As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
Third, this decision, like Lawrence and Brown v. Board of Education, is likely to influence courts and legislatures around the world. Obergefell now aligns the U.S. with a growing number of states that have embraced marriage equality. Just as the U.S. was riveted by the recent referendum in Ireland, other nations with pending legal cases or legislative activity including Mexico, Colombia and Australia, will surely take note of what has transpired here.
by Jeremiah Ho
They say that June is historically the month of weddings. But since the 1970s and 1980s, it has also become the national month of pride fests and parades. And thanks to a few Supreme Court Justices, June is now the month for landmark same-sex marriage decisions. Obergefell v. Hodges now makes it three within the last three years.
Today's favorable decision from the Supreme Court on marriage equality is historic to say the least. Writing for the majority, Justice Kennedy completes another chapter in the Court's gay rights decisions and does so from his broad humanist perspective. Although many believed that Chief Justice Roberts might have joined the majority's opinion to decide favorably for same-sex couples, the 5-4 decision, with Justice Kennedy at the pen again, gives continuity to addressing issues regarding human dignity in the context of gay rights. The majority opinion fulfills the goals of state recognition of marriage for same-sex couples from two angles under the 14th Amendment of the U.S. Constitution--from both the amendment's Due Process and Equal Protection Clauses. In this way, we see the Court being the most complete with the legal doctrine as far as recognizing the rights of same-sex couples on par with the rights of opposite-sex couples. This doctrinal treatment is by the most thorough--and consequently, the most pro-gay--that we have seen from the Supreme Court and it builds on doctrinal developments from previous the cases, Lawrence v. Texas and U.S. v. Windsor (both written by Justice Kennedy).
In addition, the developments in the 14th Amendment today that allows for same-sex couples to marry or have their marriages recognized by state governments have been justified via the human dignity aspect of marriage discrimination. We see this in the majority's description of marriage and how basic it is on a human level for couples (same-sex or not) to have their unions legally recognized if they choose to do so because such recognition not only affords legal rights and benefits but also affects how society treats those relationships. This aspect is particularly highlight by the Court in describing same-sex couples with children and family. So today's opinion is important because it reaffirms how rights and benefits could be deprived if same-sex couples cannot be given the same marital status that opposite-sex couples can receive, but also contextualizes that deprivation or discrimination from human dignity aspects as well. By extension, it is one important way in which the Court is recognizing LGBTQ people as members of society and not second-class citizens.
The opinion does seem to have limitations in regards to whether sexual orientation is protected as a trait from discrimination on as high of a level as race or national origin. Today's decision seems to be accomplishing a lot for same-sex couples nation-wide. But it did not render the Equal Protection issue based on categorizing sexual orientation within the scrutiny standards. Thus, there might be some constraints for the application of Obergefell in other legal issues that are forthcoming for LGBTQ rights advocates, such as anti-discrimination. Still today's opinion is definitely one for the books.
Editor's Note: This commentary was also published by UMass Dartmouth
Thursday, June 25, 2015
by William Berman and Jamie Langowski, Suffolk Law School Housing Discrimination Testing Program, guest contributors
Obviously, it is illegal for a white home seller to refuse to sell to a black home buyer in a private transaction because of race. Obvious, perhaps, but both the 13th Amendment and Civil Rights Act of 1866 were on the books for over one hundred years before the Supreme Court confirmed this in its ruling in Jones v. Meyer in 1968. Now, after almost a half a century the Supreme Court has ruled 5-4 that disparate impact theory is cognizable under the Fair Housing Act to prohibit practices that have a discriminatory effect on a protected class of people, regardless of intent. The Court based its ruling on: the results-oriented language of the FHA; interpretation of similar language in Title VII and the ADEA; Congress’s confirmation of its understanding of the existence of disparate impact liability in the substance of its 1988 amendments to the FHA; the unanimous view of nine Courts of Appeals; and, last but certainly not least, the statutory purpose of the Act itself.
While it took almost 50 years for this issue to reach the Supreme Court, for much of the history of the Fair Housing Act the application of disparate impact was not in doubt. It was the Supreme Court itself that first read disparate impact into Title VII of the Civil Rights Act of 1964 in Griggs v. Duke Power Co., in 1974. Not long after that, circuit courts interpreted the Fair Housing Act as supporting disparate impact claims. After all, the purpose of the statute is broadly defined (“It is the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States.”), discriminatory intent in housing is often difficult to prove, and disparate impact provides a tool to combat larger scale discriminatory actions that have the effect of having a disproportionately negative impact on a protected class.
This Nation has not been particularly good at acknowledging its discriminatory past. The current debate about the Confederate flag, 150 years later, is just the latest example of this. There are disturbing parallels between the unrest of the late 60’s in Watts, Detroit, and Newark, and the recent unrest in Ferguson, Cleveland & Baltimore. There is a similar parallel between the racial terror of the Selma church bombings and the recent murders in the Emanuel African Methodist Episcopal Church in Charleston. The promise of the Fair Housing Act remains unfulfilled. According to a 2010 Brown University study of census data, black – white segregation has declined only marginally since its peak in the 1960’s and 70’s. A simple internet search for dot density maps related to racial segregation provides a colorful visual of just how segregated many of our major cities are (Detroit, Chicago, Birmingham, Washington D.C.). Studies show negative effects from living in racially segregated neighborhoods, including poorer health, education and economic outcomes. Unfortunately, more than ever, this nation must combat institutional racism and long held patterns of segregation.
The Supreme Court’s historic ruling that disparate impact theory is cognizable under the Fair Housing Act leaves one such tool intact. There is cautioning language in the opinion suggesting a potential narrowing the application of disparate impact. This is of concern to civil rights advocates and its effect will play out over time. But as Justice Kennedy stated in the majority opinion, “Much progress remains to be made in our Nation’s continuing struggle against racial isolation.” That, unfortunately, is an understatement. The ruling was much less about interpreting single words and phrases in a half century old Civil Rights statute as it was about whether the court was willing to take us one giant leap backward in interpreting a law that it took the death of our nation’s greatest civil rights leader to pass.
The fight that Dr. King began is not over. At least now advocates need not fight it with one hand tied behind their backs.
by Wendy Parmet, Northeastern University School of Law, guest contributor
With Chief Justice Roberts' remarkably strong decision today for the Supreme Court in King v. Burwell millions of Americans can now rest assured: affordable health insurance is here to stay. There may not be a constitutional right to health care in the U.S., and thanks to the Court’s 2012 decision regarding the Affordable Care Act’s Medicaid expansion, millions of citizens (not to mention non-citizens) remain uninsured; but the ACA’s promise of providing affordable coverage to millions of low income Americans is now secure.
The question before the Court in Burwell was whether individuals in the 34 states that rely on a federally-operated health insurance exchange, rather than a state-created exchange, are eligible for the federal tax credits. Without those credits, most people could not afford to buy insurance on the exchanges. Nor would they be subject to the ACA’s mandate to have coverage. As the Court recognized, as healthy people fled the exchanges, the insurance markets in states with federally-operated exchanges would experience a death spiral.
The challengers’ arguments were simple, if disingenuous. The provision in the ACA that calculates the amount of credits to which an individual is entitled is based in part on the period of time in which the individual is enrolled in a plan “through an Exchange established by the State.” According to the challengers and the dissenting justices, those words make it clear that tax credits are limited to individuals who purchase insurance through state-created exchanges. Conceding that their interpretation would effectively kill the exchanges in the 34 states that rely on a federal exchange, the challengers concocted the theory that Congress inserted a poison pill into the ACA to push states to create their own exchanges.
Fortunately for millions of Americans, 6 members of the Court disagreed. What is remarkable about the Court’s opinion, however, is not its conclusion. The challengers’ case was weak from the get-go. What’s most notable is the way the Court reached its conclusion.
The Obama Administration and supporting amici curiae offered the Court three different paths to saving the ACA. One was based on so-called Chevron deference. This holds that when statutes are not clear, courts should defer to the administrative agencies which interpret them, in this case the Internal Revenue Agency which had ruled that tax credits were available to individuals who purchase insurance through federally-created exchanges. If the Court had followed this path, the ACA would have lived for another day, but a future Administration could have reversed course. This can’t happen now because Chief Justice Roberts’ opinion expressly rejected Chevron deference, finding that the statute is not ambiguous. The statute, he determined, requires that subsidies be made available to people who buy insurance on a federally-created exchange.
A second path to upholding the statute was hinted at by Justice Kennedy during oral arguments when he asked whether the challengers’ interpretation of the Act would unconstitutionally coerce the states. Many commentators thought that Court might rely on that reasoning and construe the statute in the Obama Administration’s favor, while expressly stating it did so to prevent unconstitutional coercion of the states. Such an approach would have saved the ACA, but it might have planted new constitutional doubts about the scope of federal authority.
The third approach, and the one adopted by the Court, was to interpret the ACA as requiring that subsidies be available to people purchasing insurance on federally-established exchanges. The Court reached this conclusion by refusing to read the words “established by the State” out-of-context. Instead, the Court recognized that the interpretation offered by the challengers simply made no sense in light of the ACA taken as whole. Congress did not allow for federally-created exchanges only to make them collapse. When all of the provisions of the ACA are read together, the majority insisted, the meaning of the disputed words is crystal clear. Exchanges established by the state are exchanges created under the Act for a state, regardless of whether they are operated by the federal government or the states.
With that simple but declarative ruling, the Supreme Court provided the most decisive victory possible for the ACA, and for Americans who need health care. The statute is clear. Subsidies cannot be withdrawn by a future Administration. Nor are there any new constitutional concerns. Although some politicians will continue to insist otherwise, the existential debates over the ACA may finally be laid to rest; and so millions of Americans can rest easily.
Wednesday, June 24, 2015
Waiting on the Supreme Court’s Possible Rationale for Marriage Equality
by Prof. Jeremiah Ho
As this Supreme Court Term nears its end, the public anticipation for the decision on marriage equality in Obergefell v. Hodges has mainly pointed to the highly possible—maybe probable—event that the Court will find marriage bans against same-sex couples unconstitutional.
Hands down, that type of decision should be a definite, long-awaited victory for LGBTQ rights supporters. Yet for those still in the movement for full equality for sexual minorities, the significant legal and political question will be how far does this victory take us?
Suspect classifications for heightened scrutiny in constitutional cases have remained the same since the late-1970s. No new suspect class has been added. But Obergefell has the potential to usher in sexual orientation as another class that deserves higher judicial review in our concept of tiered scrutiny. Although last fall’s Sixth Circuit decision that eventually prompted this Supreme Court appeal did not apply heightened scrutiny in considering whether marriage bans against same-sex couples were unconstitutional, the original Obergefell decision in the federal district court of Ohio did render bans on same-sex marriage discriminatory by relying on recent pro-gay decisions such as U.S. v. Windsor to elevate orientation into a classification worthy of review beyond rational basis. In addition, the gay couples in the current Obergefell appeal before the Court have argued heightened scrutiny as a rationale for supporting marriage equality based in part on sexual orientation. Despite predictions hinged on interpretations from Chief Justice Roberts’ line of questioning during oral arguments that the Court may likely recognize marriage equality but perhaps do so more narrowly on grounds of sex or gender discrimination, the notion of deciding the case favorably for same-sex couples based on sexual orientation is still something that remains a possibility. If the Court does elevate sexual orientation in Obergefell, then immediately this ruling will affect in a serious and “game-changing” way the broader antidiscrimination battles that serves as the next chapter of gay rights advocacy—particularly with a likely clash between the individual right to be LGBTQ and the free exercise of religion. This potential reality might even provoke a revisit of the Hobby Lobby decision.
Aside from these incrementalist predictions and observations, we should not forget that there is a human aspect to this classification as well. In cases that have provided a rationale on sexual orientation as a suspect classification, the interesting take on sexual orientation appears when courts, including the federal district court opinion of the Obergefell case, ran orientation favorably through the analysis under the famous four-factor test for determining suspect trait. These courts accomplished this task even with the factor of immutability, which has been historically problematic for classifying sexual orientation as suspect. To find sexual orientation more likely immutable, one thread of reasoning here could start with the age-old question of whether a person chooses to be gay or has same-sex attraction rooted in a biological basis. In the past, judicial positions that could answer this debate based on either choice or biology often would slant the answers in a morally blameworthy way (i.e. that being gay is a morally bad choice or that being gay is pathology) and thus cut the reasoning short politically for finding sexual orientation worthy of suspect classification. However, in some recent pro-gay cases, the rationale for immutability has side-stepped that nature-versus-nurture debate, ignored the causal debates for one’s sexual orientation, and instead rendered sexual orientation as an immutable trait because it is so fundamental to a person’s identity that the law ought not to force one to change it. This is a powerful normative shift in recognizing not just why sexual minorities should be a suspect class, but also that there is a human dignity element that plays a basic part in one’s sexual identity—LGBTQ or otherwise.
If the Supreme Court decides Obergefell based on gender discrimination, then it would be a narrower ruling that could limit the resonance of discrimination based on sexual orientation and potentially conflate gender with orientation, leading us down murkier waters. But if the Supreme Court moves toward recognizing sexual orientation as a suspect classification, this would not just mean a triumph for marriage equality alone but also a larger step-up for individual rights and autonomy.
Tuesday, June 23, 2015
The New York Times published an article with the byline Obama Lowers His Guard in Unusual Displays of Emotion. Perhaps President Obama, nearing the end of his second term, is relieved. Now he can be more of himself. During his first campaign, the President addressed race in a well-received speech in Pennsylvania. Early in his first term, the President reacted to the police/Henry Gates encounter emotionally, no doubt compelled by his own knowledge of encounters between Cambridge police and African American students when he attended Harvard Law School. After that discussion, both race and emotion pretty much disappeared from the President's public persona.
Having experienced a sustained barrage of racially motivated responses to his presidency, and now unrestrained from re-election concerns, President Obama has the ability to be a black man who can address one of the most serious and deep rooted problems in the U.S. While the discussion will further poke the beast that is racial bias, expanded public discussion is necessary as a first step toward change.
The Charleston shootings are not merely proof of racism in the U.S., the shootings are evidence that as a nation we have capped racial "progress". Yes- no doubt Mr. Roof had some level of mental illness when he committed the horrendous murders- but the fact that he focused on black individuals, a black community, and a black church, lays bare the heightened level of racism in the 50 states. A person such as Mr. Roof does not focus his hatred on African Americans without cultural support to do so. Flying the confederate flag, not just in South Carolina, racist jokes, subtle racism and implicit bias reveal a country that is all too willing to leave racism unaddressed and in doing so, perpetuate it. Sometimes the anger that victims of all sorts feel most is not toward the perpetrator, but toward those who stood by without helping. Raise the topic of racism and many deny the problem. Some will shift focus of the conversation to "black on black" crime or "reverse" racism. Denial of race discrimination does not help.
The demonstrations following Ferguson were impressive. The country has experienced dozens of recent instances of unjustified aggression by police toward black men and women. Now we have a slaughter in an historically black church. We come together for memorial services, protests and other public demonstrations of support for our sisters and brothers of color. But how many of us examine the attitudes and actions - or lack of action- that contribute to racism's perpetuation.
When we permit school systems to ignore the history of race in this country and when we fail to demand fierce institutional change in order to eliminate the devastating consequences of bias, we become the covert perpetrators of racism.
As the President reminded us this week, simply not saying the "N" word in public is insufficient. The President is able to discuss race now. I hope he continues the discussion. What about the rest of us?
Monday, June 22, 2015
A recent judicial decision in France is of particular significance in the U.S. given efforts to challenge the legality of Detroit's water shut-offs. Public Services International reports that on Friday, May 29, France’s Constitutional Court rejected claims from a large French water multinational corporation that an April 2013 law violated its "freedom to engage in contracts and its freedom to do business." The law stipulates that no water provider may cut-off or disconnect service from a primary residence, even if the bills have not been paid.
The case was initiated by a client of SAUR, a large multinational water provider. After the client fell into arrears, SAUR cut off the client's water for 20 months.
SAUR’s lawyer argued that cut-offs are necessary so that SAUR can ensure lower tariffs and higher quality service. SAUR also argued that, since the right to water does not exist in France, the relations between water provider and user fall under private law and that the contractual relationship is binding. Further, a ban on water cut-offs would substantially alter the balance of power between the user and provider would in fact encourage users not to pay.
The plaintiff’s lawyer argued that contract law does not apply, given that the user has no opportunity to choose between different water service providers, nor can the user negotiate the terms or the price of the contract.
The Court accepted the plaintiff's arguments, concluding that the "interference with freedom of contract and freedom of enterprise resulting from the prohibition of interrupting the water supply is not manifestly disproportionate to the objective pursued by the legislature." The decision is final, without appeal.
More information concerning the case is available here.
Friday, June 19, 2015
Deborah M. Weissman, Reef C. Ivey II Distinguished Professor of Law
University of North Carolina School of Law
The UNC School of Law Human Rights Policy Seminar recently released its study on meaningful access to legal representation in the United States. The report, A Basic Human Right: Meaningful Access to Legal Representation is intended to aid advocates who seek to utilize international and regional human rights bodies, specifically the Inter-American Commission on Human Rights, for assistance in improving the judicial system in the United States and in pressuring the U.S. government to provide a universal right to meaningful access to legal representation. Many legal scholars and a growing number of democracies agree that a fair and impartial judicial system requires a right to counsel. Indeed, for many individuals, having access to legal representation can make the difference between maintaining and losing ownership of one’s home, having enough food to eat, keeping one’s family together, or obtaining protection from threats to bodily harm or even death. Those who have no means to protect and enforce their fundamental rights will have diminished trust in their government and little faith in the Rule of Law. These propositions are hardly new and their fundamental truths have been well-established.
The report demonstrates that international and regional human rights bodies have encouraged the United States to provide meaningful access to legal representation as a basic right. Relatedly, it makes the case that the various affirmative rights that the United States is obligated to protect pursuant to both domestic and international human rights norms cannot be realized without meaningful access to legal representation
Section One of the report establishes the basis in international and regional human rights norms for a universal right to meaningful access to legal representation. The section also provides a brief overview of the considerable inadequacy of the protection of these rights in U.S. jurisprudence. Section Two examines the failure to provide a right to legal representation in civil proceedings and describes the disturbing array of fundamental rights that are left unprotected for those individuals who are unable to obtain counsel on their own in civil proceedings. Without a right that allows these individuals to access counsel, their fundamental interests in housing, employment, family, sustenance, and more are left unprotected and vulnerable to erosion. Section Three surveys the consequences of depriving immigrants in removal proceedings of the right to counsel. The section describes the effects of the deprivation of liberty that immigrants suffer on their ability to represent themselves and the fundamental unfairness of the immigration court system. These circumstances reveal the desperate need for counsel to advocate for respondents’ rights throughout the process, particularly because legal representation has been shown to have a on the outcome dramatic effect for immigrants. Finally, Section Four focuses on the criminal defense system in the United States, which is the one area where a right to counsel is recognized. However, quality legal representation is a rare experience for indigent criminal defendants. Due to chronic underfunding and inadequate assurances of the quality of counsel, even this area of U.S. jurisprudence fails to meet obligations under international and regional human rights norms. Criminal defendants without access to effective legal counsel do not receive the protection of their fundamental right to liberty that the United States has promised to provide.
The report serves as a compendium of international and regional human rights standards related fundamental protections and the obligation of the United States to assure meaningful access to legal representation in order to realize those protections. It concludes with the suggestion that advocates consider the invoking the guidance and authority of the Inter-American Commission on Human Rights which is well-positioned to consider the human rights obligations of the U.S. government to provide meaningful access to legal representation to all.
Thursday, June 18, 2015
Earlier this week, the Eleventh Circuit heard oral argument in Mamani v. Berzain, a case filed by the Center for Constitutional Rights, on an issue that threatens the ability of international human rights victims to bring claims in United States courts under the Torture Victim Protection Act (“TVPA”), 28 U.S.C. § 1350 note. At issue in Mamani is the TVPA’s exhaustion clause, which provides that “[a] court shall decline to hear a claim under this section if the claimant has not exhausted adequate and available remedies in the place in which the conduct giving rise to the claim occurred.” 28 U.S.C. § 1350 note § 2(b). The Defendants have argued that the Plaintiffs’ exhaustion of humanitarian aid remedies precludes pursuit of TVPA claims in federal court.
Mamani arises from the alleged use of deadly military force against unarmed civilians during the 2003 Bolivian gas crisis. The Plaintiffs allege that the use of force was ordered by the Defendants—Bolivia’s former President, Gonzalo Daniel Sánchez de Lozada Sánchez Bustamante, and Bolivia’s former Minister of Defense, Jose Carlos Sánchez Berzaín. Because the Defendants fled Bolivia shortly after the crisis, they have never stood trial in Bolivia and have never been held to account for their alleged actions.
After the Defendants fled Bolivia, a new government passed several humanitarian aid measures designed to compensate Bolivians like the Mamani Plaintiffs for some of their losses. In proceedings before the Federal District Court for the Southern District of Florida, the Defendants argued that once the Plaintiffs exhausted their remedies under those humanitarian aid measures, satisfying the TVPA’s exhaustion clause, this constituted an “adequate and available” remedy that should preclude the Plaintiffs’ TVPA claims. The district court rejected this argument, holding that the humanitarian aid received by the Plaintiffs in Mamani does not preclude them from seeking to hold the Defendants liable under the TVPA, noting that the traditional concept of exhausting remedies typically does not preclude judicial relief, but rather postpones it until the prescribed alternative remedy has been exhausted. Defendants have renewed their argument on appeal to the Eleventh Circuit.
The Center for Justice and Accountability (“CJA”) and pro bono co-counsel Ropes & Gray LLP, on behalf of CJA itself and several of CJA’s clients who had previously brought and prevailed on claims under the TVPA, submitted an amicus brief to the Eleventh Circuit addressing the TVPA’s exhaustion requirement from the perspective of international human rights law and arguing for affirmance of the district court’s decision. CJA’s brief argues that the legislative history of the TVPA makes clear that Congress intended the exhaustion clause to be informed by the application of the exhaustion requirement in international human rights tribunals. These tribunals include the European Court of Human Rights (“ECHR”), which, at the time the TVPA was passed, had developed a robust jurisprudence on the exhaustion requirement.
International human rights courts such as the ECHR hold that Thus, international human rights courts only assess the “adequacy” and “availability” of domestic remedies when a plaintiff claims that a failure to exhaust certain remedies should be excused. While the words “adequate and available” describe the category of local remedies that must be exhausted by TVPA Plaintiffs, they do not describe remedies that, once exhausted, have any preclusive effect.
Preclusion is a separate legal doctrine, under both international and U.S. law, which the district court has not yet had theMamani. Indeed, while international human rights courts do not assess the preclusive effect of prior remedies under the exhaustion doctrine, they do conduct such an analysis in the context of other international law doctrines similar to claim preclusion and issue preclusion under U.S. law.
Moreover, even under these preclusion doctrines, international human right courts have held that humanitarian aid cannot preclude an international human rights claim for gross human rights violations like extrajudicial killing because it does not constitute a full and effective remedy for the harms suffered by victims. International human rights courts recognize that a full and effective remedy includes the fundamental right to satisfaction and accountability from the individual perpetrators. Here, where Plaintiffs were relatives of victims of extrajudicial killing, the humanitarian aid from the Bolivian government was not a full and effective remedy because it did not hold the Defendants accountable for their alleged violations of the Plaintiffs’ basic human rights. As the District Court noted in its Order, this concept of accountability is fundamental to the TVPA: “The goal of the statute on its face, then, is to redress specific individuals’ wrongdoings by ensuring that their actions have legal consequences—to wit, that they literally ‘pay the price’ for their wrongs.”
CJA’s amicus brief thus argues that the Eleventh Circuit should reject the Defendants’ argument, and should hold that the TVPA’s Such a ruling would accord with Congressional intent, promote respect for well-established international human rights law precedent, and lend support to the ability of international human rights victims to seek truth, justice, and redress in U.S. courts.
Wednesday, June 17, 2015
The Human Rights and Tobacco Control Network, a relatively new organization formally chartered in 2012, is examining a wide range of tobacco issues through a human rights lens. At the annual World Conference on Tobacco and Health in May 2015, the Network sponsored a panel examining, among other things, "the potential criminal liability of tobacco executives in domestic and international legal systems, as well as the potential human rights violations perpetrated by the industry." More information on this analysis is available from ASH, "Action on Smoking and Health," one of the founding organizations of the HRTCN.
In the U.S., human rights advocates have focused on child labor in the domestic tobacco industry. A comprehensive look at the issue is available here. Proposed legislation restricting the practice is pending in Congress. Some companies have adopted their own international restrictions.
Sixteen years ago today, June 17, the member states of the International Labor Organization unanimously approved Convention 182, which bars the Worst Forms of Child Labor. Included in the list of prohibited activities is "work which, by its very nature or the conditions in which it is undertaken, is likely to jeopardise the health, safety or morality of children." The U.S. ratified Convention 182 in 1999.
The jury is certainly no longer out on whether the practice of child labor in the tobacco industry jeopardizes their health and safety. Every day that Congress delays action compounds the human rights impacts on this vulnerable population. But at the same time, as many activists note, the issue goes beyond the lack of regulation. Economic inequality, lack of a living wage, forces working families to jeopardize their health in order to survive. Child labor in the tobacco fields is a terrible symptom of these larger issues. Our efforts to find a cure for child labor must also focus on the disease itself.
Tuesday, June 16, 2015
Building upon the Declaration on Violence against Women, Girls and Adolescents, and their Sexual and Reproductive Rights adopted by the Committee of Experts of the Follow-up Mechanism to the Belem do Para Convention (MESECVI), this symposium aims to position reproductive rights, particularly in the context of sexual violence and adolescent pregnancy, as a key priority among the region’s states. It will also be an opportunity for an in depth conversation on the relationship between violence against women and sexual and reproductive rights. During the event, the Center for Reproductive Rights will disseminate the findings of its advocacy document, “Violence and Reproductive Rights in the Americas.” Here's the schedule:
Symposium on Violence, Health, and Sexual and Reproductive Rights
June 19, 2015, 8:30 AM – 2:00 PM
Hall of the Americas | Organization of American States
17th Street and Constitution Ave. NW, Washington, DC 20006
The numerous forms of violence that are exercised against women pose an obstacle to their individual development, violate their rights and limit their freedoms. Violence against women blocks the full development of their capacities and autonomy, and limits their public, economic, social, and political participation. From sexual violence to domestic violence, violence against women is linked to sexual and reproductive health and rights. For instance, an estimated 1.68 million women in the Americas are raped each year, but only eight countries in the region allow abortion in cases of rape and two have a total ban on emergency contraception. In general, Latin American countries have some of the most restrictive reproductive health laws and policies in the world: from access to information to access to basic health services.
Friday, June 19th, 2015
Breakfast and registration (7:30-8:30)
Opening session (8:30 – 9:00):
* Alejandra Mora Mora, Minister of the Status of Women of Costa Rica and President of the CIM (TBC)
* Karen Hanrahan, Chief Program Officer, Center for Reproductive Rights (CRR)
* Francisco Becerra Posada, Assistant Director, Pan-American Health Organization (PAHO) (TBC)
* Ambassador Jean-Claude Nolla, Permanent Observer of France to OAS
* Luis Almagro Lemes, OAS Secretary General (TBC)
Panel 1: Violence and Reproductive Rights (9:00 – 10:30):
* Caroline Bettinger-López, Professor at University of Miami School of Law and founder of the school's Human Rights Clinic (TBC)
* Regina Fonseca, Coordinator of the Sexual Rights and Reproductive Rights program of the Centro de Derecho de Mujeres (Honduras)
* Diana González, Principal Expert of Uruguay to the Follow-up Mechanism to the Belém do Pará Convention (MESECVI)
* Alessandra Guedes, PAHO/WHO Advisor on Intra-Family Violence (TBC)
Moderator: Luz Patricia Mejía, Technical Secretary of the MESECVI
Panel 2: Public Health and Reproductive Rights (10:45 – 12:15):
* Dr. Leonel Briozzo MD, Professor Clínica Ginecotocológica A, Facultad de Medicina, Universidad de la República (Uruguay)
* Javier Vasquez, Advisor on Human Rights and Law, PAHO (TBC)
* Ana Cristina González, Regional Expert on Health and Human Rights, Lead doctor, Global Doctors for Choice (Colombia)
Moderator: Mónica Arango, Regional Director for Latin America and the Caribbean, CRR
Lunch (12:30 – 2:00)
To register please click here
Download the agenda in English<http://oas.us7.list-manage.com/track/click?u=f4f9c21ffdd25a4e4ef06e3c2&id=ce8b57eb66&e=ab5fe4a183>
Download the agenda in Spanish<http://oas.us7.list-manage.com/track/click?u=f4f9c21ffdd25a4e4ef06e3c2&id=cf8c4879c0&e=ab5fe4a183>
Monday, June 15, 2015
The annual Human Rights Watch Film Festival is in full swing in New York City. A complete schedule of films, several of which address human rights issues in the U.S., is here. On June 20, 5:30 p.m. at Lincoln Center's Walter Reader Theater, check out Of Men and War, a film about the difficult challenges facing returning veterans in the U.S. And on, June 21, 6:30 p.m. the festival will close with a screening of Black Panthers: Vanguard of the Revolution. Premiered at the Sundance Film Festival earlier this year, the prize-winning film tells its story through first-hand accounts and rare archival footage.
Many of the films featured at the HRW Festival are also being screened in theaters, on campuses and on public television, so if you're not near NYC, you may still be able to catch these films in other venues -- or you may be inspired to stimulate the local human rights conversation by arranging a screening in your community!
Friday, June 12, 2015
by Fran Quigley, guest contributor
I have a thick stack of detailed notes and a Power Point presentation, all prepared for use in teaching about the implications of the King v. Burwell case the U.S. Supreme Court is ready to decide any day now.
I explain to students that this is the case where a four-word phrase in the 900-page text of the Affordable Care Act is the subject of a legal challenge designed to knock the underpinnings out from under our new healthcare law.
The plaintiffs focus their argument on a portion of the statute that allows tax subsidies to be provided to some lower-income people when health exchanges are “established by the state.” They contend this means that subsidies have been unlawfully provided to 6.4 million people who have purchased their insurance through federally-operated exchanges. That is the only option available in the 34 states—Indiana included—that did not set up their own exchange.
My class presentation covers how Indiana’s Attorney General Greg Zoeller, with the support of Governor Mike Pence, submitted a friend of the court brief in support of the plaintiffs in the Supreme Court case. Despite the fact that a ruling could cut 159,000 Hoosiers off from tax subsidies that average $320 per month, Zoeller and Pence have lined up Indiana with disgruntled activists who vowed when the Affordable Care Act passed to “drive a stake through its heart.”
I am able to teach the story of King v. Burwell fairly well. But if I could just bring Kendra Bush to class, I would pitch most of my notes aside. Because Kendra Bush represents the best of the admittedly imperfect Affordable Care Act, and also represents the potential human cost of the King v. Burwell challenge.
Kendra Bush is an Indiana home healthcare worker, a 48 year-old woman who spends six days a week performing the physically and emotionally challenging task of caring for a half-dozen different persons who are either elderly or have disabilities.
It would be hard to think of a more important job, but it is one that pays poorly. In a sad irony, healthcare provider Bush has gone without health insurance before, avoiding doctor visits because she could not afford to pay out of pocket.
But that has all changed. Thanks to signing up for the federal exchange, Bush now has access to healthcare. Since her insurance premium is mostly covered by the subsidies, she pays only $24 per month for coverage. Having health insurance has provided more than just piece of mind. When a recent mammogram showed a suspicious spot in Bush’s breast, she was able to get it checked out and resolved right away. None of that would have happened during her days of being uncovered.
“If these subsidies go away, it is going to hurt a lot of us,” Kendra Bush says. “For some people, it will mean choosing between health care and having something to eat or pay their rent. And it shouldn’t be that way.”
I couldn’t have said it better myself.
[NB: This essay previously appeared in the Indianapolis Star.]
Thursday, June 11, 2015
“Trauma is not random. Its occurrence varies as a function of characteristics of the individual (e.g., racial/ethnic minority or LGBT status), peer relationships (e.g., intimate partner violence), community characteristics (e.g., poor neighborhoods), and socio-political factors (e.g., terrorism, war, and civil unrest). Additionally, these characteristics influence trauma type (e.g., women are more likely than men to be victims of intimate partner violence and unwanted sex). Outcomes of trauma are also not random, and are highly related to characteristics of the individual, peer group support, community, and socio-political factors." These are the findings of a 2014 study on the public health impact of trauma.
Despite living in an era of evidence based planning and decision making, many of our laws continue to employ standards that presume those involved in the legal system are capable of linear, non-traumatized planning and reasoning. Juvenile law is one example. Often system actors approach prosecution and sentencing as if juveniles possessed adult thought capacities. Evidence on juvenile brain development, as well as brain malfunctions following trauma, supports altered reasoning and impulsive actions by juveniles. These conditions are enhanced when the juvenile has been abused. Trying a juvenile in adult court is a scientific absurdity, particularly when the process is applied to traumatized juveniles. The status of the defendant's brain development should drive any decision on prosecution charging and sentencing. But our court systems often make the determination based on the outcome of the crime, not the capacity of the alleged offender.
Similarly judgments are made regarding traumatized adults. Those who have suffered intimate partner abuse frequently are unable to give linear testimony as a consequence of trauma. Yet court actors continue to express frustration with adult witnesses who testify in what is to them an illogical order. Both popular and academic literature describing PTSD is abundant thanks to the post-war difficulties experienced by returning war veterans. The information is readily available to those within the legal system. Yet state actors still expect those who appear before them to behave in a manner that the actor determines conveys credibility, rather than accepting the witness as s/he appears on the trauma scale.
Human rights theories are difficult to argue successfully in these settings. Triers of fact and others often disregard and disrespect traumatized individuals who appear before them. Whether this behavior results from a lack of information or a disregard of literature is irrelevant. The outcome is the assignment of blame to those who have been victimized; and to declare a party not credible based upon the very indicators that prove traumatization. Motivation is not important. State actors cannot understand human rights based legal theories if fundamentally they are unwilling to accept empirical evidence on the impact of trauma. State perpetration of re- traumatization is a violation of fundamental human rights. And it is not random.
Wednesday, June 10, 2015
One of the strengths of the human rights framework is its embrace of content beyond law, including the arts and humanities. This aspect of human rights will be explored more deeply this summer at "Belonging," the Galway International Summer School on the Arts and Human Rights, July 9-11, 2015.
Here's how the organizers describe this unique event:
"Thought leaders from the seemingly disparate worlds of human rights and the arts will come together for the Galway International Summer School on the Arts and Human Rights from 9-11 July. This landmark event, a world-first, is hosted by NUI Galway’s Irish Centre for Human Rights, and will take place in the days immediately before the Galway International Arts Festival.
Bringing together arts and human rights practitioners and others interested in the topics, events will take the form of panel discussions, exhibitions and performances. There will also be three parallel workshops on the topics of literature and human rights, the visual arts and human rights, and music and human rights.
The Summer School is co-directed by Professor Michael O’Flaherty, Director of the Irish Centre for Human Rights and Dr Dominique Bouchard, Curator at the Hunt Museum. The organisers envisage that the event will provide a platform for sharing ideas and identifying synergies between the two disciplines of art and human rights, both of which are strongly aligned with issues such as social justice, cultural expression and cultural freedom. The summer school, which is currently open for enrolment, will follow the theme of ‘Belonging’ as seen from an arts and a human rights perspective.
The opening speaker will be United Nations’ leading expert on human rights and culture, Farida Shaheed, the United Nations Special Rapporteur for Cultural Rights."
Registration information for the Summer School is here.