Monday, August 31, 2015
On August 19, plaintiffs in California filed a federal class action lawsuit against Costco and CP Foods challenging slavery in the supply chain that sends shrimp from Thailand to stores in the U.S. The suit rests on extensive factual investigation by The Guardian newspaper, the UN and NGOs revealing the extent to which slaves contribute to Thai shrimp production. Though it is not part of the present suit, shrimp sold by US giant retailer Walmart has also been linked to illegal production.
The California plaintiffs seek an injunction requiring labeling of foods to indicate that they are a product of slavery, as well as restitution to those consumers who have purchased the shrimp. A copy of the complaint, which makes effective and provocative use of photos as well as more standard legalese, is here. Notably, the claims arise under California law but the case invokes federal diversity jurisdiction.
A federal committee is currently working on principles that would address "seafood fraud," among other things. Draft principles open for comment can be found here. The comment period has been extended to September 11, 2015. As the National Oceanic and Atmospheric Administration reports, "illegal, unregulated and unreported fishing and fraudulent seafood products distort legal markets and unfairly compete with the products of law-abiding fishers and seafood industries." The Costco lawsuit, focused on the role of slavery in shrimp production, makes clear the urgency of federal attention and regulation in this area.
Saturday, August 29, 2015
The Center for Human Rights & Humanitarian Law at American University Washington College of Law announces the deadline for submissions for the Fifth Annual International Humanitarian Law (IHL) Student Writing Competition. The competition is sponsored jointly with the American Society of International Law (ASIL) and the American Red Cross.
The theme of the 2015 Competition is “The Intersection of International Humanitarian Law and Gender.” Papers should focus on ways in which IHL intersects with gender issues, such as the role of women as combatants, the gendered use of sexual violence during times of armed conflict, the impact of gender stereotyping on international humanitarian law, etc.
The Center asks that we share this information with our students. A link to the competition website is provided.
Friday, August 28, 2015
Last week, Secretary of Defense Ash Carter reiterated his and the administration’s commitment to closing the U.S. detention facility at Guantanamo Bay, Cuba, by the end of the president’s second term in office. Carter stressed that he intends to work within the law to transfer those detainees who have already been cleared by relevant agencies. He also said that that the administration will soon send to Congress a plan for the remaining detainees who are not eligible for transfer. Carter indicated the plan will include bringing a number of detainees to the United States for continued detention and that assessment teams are currently visiting potential detention sites across the United States. Both the military and the Bureau of Prisons have safely detained very dangerous criminals, including terrorists and mass murderers, and are well-equipped to continue to do so. Human Rights First has said that any plan to shutter the Guantanamo facility should include: expedited transfers of cleared detainees; an increased pace of Periodic Review Board hearings, which determine whether a detainee still poses a threat to the United States or is cleared for transfer; and stronger engagement with Congress, including vetoing any legislation that prevents Guantanamo from being closed.
Thursday, August 27, 2015
Last week, the Inter-American Commission on Human Rights (IACHR) found that the United States violated Bernardo Aban Tercero's rights to due process and a fair trial that are enshrined in the American Declaration of the Rights and Duties of Man. Tercero, a Nicaraguan national who has been on death row since 2000, is scheduled for execution in Texas on Wednesday. Tercero had deficient capital counsel at trial, sentencing, and at every stage of his post-conviction proceedings. His trial attorneys never conducted a comprehensive investigation into his social history, as required by the American Bar Association (“ABA”) Guidelines on minimum standards of representation in a capital case. There is also no evidence that Tercero himself was ever evaluated for mental illness or intellectual disability which could make him ineligible for the death penalty, despite significant evidence of risk factors. Human Rights First, which filed a petition in the case, is urging Governor Greg Abbott and the Texas Board of Pardons and Paroles to adhere to the IACHR’s recommendations to stay the execution pending review of the trial and sentencing.
Dallas News reports that on August 25th, the Texas Court of Criminal Appeals halted yesterday's scheduled execution. The Appeals Court returned the case to the trial court for review.
Wednesday, August 26, 2015
In my last post, I discussed the phenomenon that I call “the new peonage,” in which criminal justice debt creates a two-tiered system of justice in our juvenile and criminal courtrooms. One of my proposals for reform is to establish the right to counsel in nonpayment hearings. It is long-settled law that the Sixth Amendment requires that counsel be appointed to indigent criminal defendants who face the risk of the loss of liberty. Most states hold that this right, which derives from the Due Process Clause of the Fourteenth Amendment, also applies to civil proceedings. Most states also agree with Supreme Court dicta in Lassiter v. Department of Social Services (1981) that relying on the “civil” or “criminal” label placed on a proceeding when determining whether there is a right to counsel is not particularly helpful in this subset of cases, as the possibility of incarceration is an equally serious restraint on one’s liberty interests whether it results from a civil or criminal matter. State courts are split, however, on how best to determine whether the right exists when applied to a given set of facts, with some courts holding that a balancing test should be used on a case-by-case basis, and others holding that the right to counsel should be presumptively guaranteed in all matters that could potentially result in incarceration. Several states have even held that there is no right to counsel in civil fee collection proceedings regardless of whether the defendant could be incarcerated, invoking the civil/criminal distinction to support their holdings, thereby rejecting Lassiter.
An argument that is gaining traction is that there should presumptively be a right to counsel for indigent litigants in nonpayment hearings whenever those hearings can result in incarceration or an extension of probation or parole. In the recent case of Washington v. Stone (2012), James Stone pleaded guilty in 2001 to unlawful possession of a controlled substance (methamphetamine) and second degree theft, and the trial court sentenced him to 105 days in jail and twelve months of community custody with a fine of $2860. Two years later his supervision was transferred from the Washington Department of Corrections to the superior court clerk’s office, as he now owed (adding the interest) $3179. Two months later, without being told of the right to counsel, he signed an order agreeing to minimum monthly payments of twenty-five dollars, and agreeing that if he failed to pay, an arrest warrant would be issued. For the next twenty-nine months, Stone made the monthly payments, but when he missed a payment and a court appearance, an arrest warrant was issued, and he was sentenced to ten days in jail. This was followed by a period when he once again made payments. This scenario continually repeated itself; yet for three years the court did not inquire as to whether Stone wished to have counsel appointed. After the court finally inquired of him and counsel was appointed, a fact-finding hearing was held one week later, which the appellate court described as follows:
Stone testified that he was homeless; that he was left handed and limited to twenty-five percent use of that hand; that the Department of Social and Health Services (DSHS) paid his medical bills; that his only source of income was monthly net payments of $339 from a…”program…due to [his] disability with [his] shoulder”; and that he spent this money on shelter, cigarettes, and “a few other necessities” like food. He also testified that it cost him approximately $100 to travel to Jefferson County for court appearances.
At the hearing’s conclusion, the judge sentenced Stone to forty-five days in jail, with no inquiry as to his income or ability to pay, and without granting a deduction in his LFO debt for either of his two previous periods of incarceration. On review, the Court of Appeals of Washington held that a person has an absolute right to counsel at “ability-to-pay” hearings where incarceration may result, and that Stone’s due process rights were violated when he was incarcerated without findings regarding his ability to pay:
Stone’s lack of counsel during these proceedings created an “asymmetry of representation” because a prosecuting attorney represented the State in this adversarial proceeding. As the United States Supreme Court has observed, “The average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel.”
The federal appellate court clearly recognized that if counsel had represented James Stone at the first enforcement proceeding, it would have made the difference between his maintaining and losing his liberty down the road. Counsel is needed to gather and present evidence regarding the defendant’s ability to pay, to assist her in navigating the often-complex procedures for requesting a reduction or waiver of fees, and to ensure that she understands the ramifications of payment orders or commitments. For these reasons, it is likely that early appointment of counsel will ultimately save the jurisdiction monies spent in repeated attempts at collection, issuing and serving arrest warrants, and the costs of incarceration.
Of course it is critical to keep in mind that when counsel is appointed, at least forty-three states and the District of Columbia can require defendants to contribute to its cost. This fee is often a significant component of the total debt burden imposed by LFOs, and given the disproportionate representation of low-income defendants and civil litigants struggling under the new peonage, it rests squarely on the backs of those least able to afford it. In Florida and Ohio, individuals must pay defender fees even if they are acquitted or the charges are dismissed. In states that offer hardship waivers of these fees by statute, some fail to provide them in practice. And, defender fees often serve to discourage low-income people, including children in juvenile court, from exercising their constitutional right to counsel, resulting in systematic waivers of counsel.
Yet, if the right to counsel at nonpayment hearings is implemented in combination with several other legislative proposals, such as the exemption of attorney fees for indigence, these costs should cease to be a significant hardship for low-income defendants.
Editor's note: Tamar Birckhead’s research on “The New Peonage” will be published by the Washington & Lee Law Review in December 2015.
Tuesday, August 25, 2015
In two earlier posts, we reported on the Texas case where plaintiffs sought the release of children and their mothers from immigrant detention centers. After issuing her initial order, Judge Gee gave the Obama Administration an opportunity to respond as to whether it would comply with the terms of the Flores settlement and release mothers and their young children. The Administration responded that it planned no change in its current policy.
On Friday, Judge Gee entered her order. She ordered the release of immigrant children held at the detention centers. More than 1800 mothers and children are held in three detention centers in both Texas and Pennsylvania. The Los Angeles-based Center for Human Rights and Constitutional Law said that thousands of innocent children have suffered severe psychological and sometimes physical harm during their over year-long detention.
The government has until October 23rd to comply with the order.
One basis for the Plaintiffs' claims was that the detention centers are run by private corporations, not the government, as called for in the Flores settlement. While it is noted that the Texas centers have gyms, schools and other amenities, a prior post reported that the centers are often very cold and the women and children are provided only one aluminum blanket each, which is inadequate to keep them warm.
The administration has not yet announced if it will appeal Judge Gee's decision.
Monday, August 24, 2015
Good News: The National Center for Transgender Equality celebrates the appointment of Raffi Freedman-Gurspan who was appointed by President Obama as the first openly transgender staffer. Freedman-Gurspan is appointed as an Outreach and Recruitment Director for Presidential Personnel. Freedman-Gurspan advocated for the Center's Racial and Economic Justice Initiative.
Mixed News: Also last week, A U.S. Navy admiral says that SEAL teams will be opened to women and last Friday, two soldiers became the first women to graduate from the Army's Ranger School located at Fort Benning Georgia. 1st Lt. Shaye Haver and Capt. Kristen Griest are both West Point graduates. This is the first year that women were permitted to attend Ranger School.
In a gratuitous statement reassuring us that the females soldiers are expected to become an alternate form of male soldiers, the Army spokesman said that in accommodating the female rangers, the Army did not change its standards at all. Whew!
These changes follow the 2013, Pentagon announcement that it is considering lifting its ban on women serving in combat roles and gave the military until the end of 2015 to take a position on whether any jobs should continue to be off-limits to women.
Friday, August 21, 2015
During the 2015-2016 school year, Martha F. Davis will serve as the Distinguished Chair in Human Rights and Humanitarian Law at the Raoul Wallenberg Institute, Lund University, on sabbatical from Northeastern University School of Law. During her stint in Sweden, she will be developing a comparative study of local human rights implementation, contrasting the U.S. as a federal system with Sweden as a highly developed unitary system. As part of the study, she will utilizing a mapping tool developed by the NuLawLab at Northeastern Law School to illuminate the specifics of local human rights experiences in southern Sweden. Beyond points on a flat screen, the mapping tool supports photos, videos and other media to fill out the story of how local human rights initiatives develop and move forward.
This work builds on another recent project, a forthcoming book co-edited with Barbara Oomen and Michele Grigolo, titled Global Urban Justice: The Rise of Human Rights Cities (Cambridge Univ. Press). With several contributors from the US (JoAnn Kamuf Ward, Risa Kaufman, Cynthia Soohoo, Kenneth Neubeck) as well as other studies from around the world (Mexico, Austria, the Netherlands, Canada, Ghana), the book highlights the ways in which cities are increasingly responsive to human rights frames. Publication will be in 2016.
We wish you a wonderful academic year, Martha. Do come back!
Thursday, August 20, 2015
18 states have done it. Over 100 cities and counties have done it. Walmart has done it. Koch Industries has done it. The critical question is: will the federal government be next to “ban the box”?
On July 20th, the US Department of State convened a human rights townhall as part of its engagement in the UPR process – an opportunity for advocates to discuss how the US federal government should respond to the more than 300 recommendations made to the US in May. The Leadership Conference on Civil and Human Rights kicked off civil society interventions, urging the federal government to join the growing ranks of employers that have agreed to remove the question “Do you have a prior arrest or conviction record?” from employment applications.
The Leadership Conference’s recommendation echoes a growing call for the Administration to issue an executive order banning the box for federal agencies and federal contractors. The national “Ban the Box” movement emerged from grassroots organizing by All of US or None to address the problem of “lifelong discrimination and exclusion because of a past arrest or conviction record.”
All of US or None considers itself a civil and human rights organization and this is clearly a human rights issue. Most obviously, banning the box is responsive to UPR recommendation 274, which calls on the US to develop a national strategy to reintegrate “former detainees and to prevent recidivism.” The practice of asking job applicants whether they have an arrest or criminal record has deeper human rights implications as well. It runs afoul of the general prohibition of discrimination and places undue restrictions on the right to work as well. Importantly, human rights not only place on obligation on governments not to discriminate, they require action to prevent discrimination by private actors, bolstering the call to ban the box across employment sectors.
The fact that increasing levels of incarceration have a disproportionately negative impact on communities of color is clear. (According to DOJ statistics from 2012, Black men were 6 times more likely to go to prison than White men, while Hispanic males were two times as likely. Black females ages 18 to 19 were three times more likely to be imprisoned than white females of the same age, while Hispanic 18-19 year olds had imprisonment rates almost double that of white women.
Placing a question about criminal records on employment applications exacerbates this inequity and severely restricts the opportunity for a second chance. Indeed, when instituting “ban the box” protections in Virginia earlier this year, Governor McAuliffe highlighted that “[w]e all know this box has a disparate impact on communities of color.” We all know, as well, that limiting access to gainful employment is a surefire way to ensure financial insecurity for individuals with criminal records in all communities.
Just asking the question about criminal records can deter an individual from finishing a job application. Applicants that do take the steps to complete an application, and check the box, run the risk of being dismissed from consideration with no assessment of their individual skills, character, and qualifications. The NY Times has reported that disclosing a criminal record has a clear negative impact, reducing the likelihood of a callback or job offer by fifty percent. (To clarify, banning the box does not mean that a background check can’t take place –it means eliminating the threshold question of criminal records from the interview and screening stage).
By removing the criminal record question, government employers foster equality and opportunity in the public sector. While banning the box does not address the underlying factors that perpetuate mass incarceration, it chips away at the stigma that millions of Americans face as a result of coming into contact with the criminal justice system. As others have reported, there is also evidence that keeping people with criminal records out of the labor market hurts the economy. Notably, by increasing employment opportunities for those who have been arrested or convicted, governments can reduce the factors that lead to recidivism.
When governments “ban the box” in public employment, they strengthen respect for the human right to be free from discrimination. When governments go further and restrict questions about criminal records in private employment, they bolster human rights by protecting against discrimination by third parties. San Francisco’s ordinance does just that, it prohibits public and private employers from asking about criminal records. Minnesota revised its law in 2013 to do the same. (Massachusetts, Rhode Island. Buffalo, Seattle, Philadelphia, Newark, and Rochester also “ban the box” for certain categories of private employers).
Obama signaled support for banning the box in his speech at the NAACP conference last month. His support builds on recommendations from the My Brother’s Keeper Taskforce, which called for hiring schemes that “give applicants a fair chance and allows employers the opportunity to judge individual job candidates on their merits.” Guidance issued by the EEOC in 2012 on consideration of arrest and employment records also supports banning the box. This Title VII guidance notes that it is a best practice for employers to “eliminate policies or practices that exclude people from employment based on any criminal record” and counsels towards “limit[ing] inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.“
As the Leadership Conference recently stated: “By eliminating the litmus test that denies all applicants who have been in prison the opportunity to work, we ensure that … we are 'a nation that believes in second chances.'”
It is not often that human rights advocates and the Koch brothers agree. The ever-growing bipartisan support for banning the box should be a call to action – its fair, its smart, and it's a critical way to foster opportunity for the more than sixty five million Americans who have an arrest or conviction record.
[Want to know more? The National Employment Law Project tracks state-level efforts, as well as city and county legislation . In 2010, NELP and the National League of Cities jointly developed a resource on promising reentry policies at the city level, which can spark further innovation at the local level.]
Wednesday, August 19, 2015
by Deborah Popowski, Lecturer on Law and Clinical Instructor, Harvard Law School, guest contributor
On August 5th, the Inter-American Commission on Human Rights released a report denouncing the United States government for unlawfully detaining men in Guantánamo in violation of their human rights and offering recommendations for how the Obama administration should hasten the prison’s closure. It calls for the immediate release of all detainees who will not be charged or tried, and for the use of federal courts instead of military commissions to prosecute those not released.
Personal Integrity and Access to Justice
The 136-page report, “Towards the Closure of Guantánamo,” provides the most recent holistic and independent account of conditions in the prison. The Commission expresses particular concerns about indefinite detention; the use of torture and other cruel, inhuman, or degrading treatment; a discriminatory detention regime; limited or no access to judicial protection; lack of due process; and lack of an adequate defense.
The Commission calls on the US to end the inhumane practice of force-feeding detainees and to ensure that all men receive “adequate medical, psychiatric and psychological care” that respects principles of confidentiality, patient autonomy, and informed consent.
The report also takes on the conditions that contribute to these grave health problems, including to prolonged isolation, incommunicado detention, and indefinite detention. On the latter, it notes having “received specialized information on the severe and lasting physiological and psychological damage caused by the detainees’ high degree of uncertainty over whether they will be released and when; or whether they will see their family members again.” It adds that the “continuing state of suffering and uncertainty creates grave consequences such as stress, fear, depression, and anxiety, and affects the central nervous system as well as the cardiovascular and immunological systems” and concludes that the continued, indefinite detention of men in Guantánamo violates their right to humane treatment.
The Commission’s analysis of personal integrity violations underscores that the fulfillment of this right requires providing detainees with meaningful avenues to monitor, challenge, and remedy their treatment and conditions. To this end, it asks the US government to declassify evidence of torture and ill-treatment, disclose conditions in Camp 7, ensure accessible and effective judicial review, and grant access to an independent monitoring body to investigate detention conditions. Additionally, it urges compliance with the UN Committee Against Torture’s recommendations to investigate all abuse allegations, prosecute those responsible, and ensure effective redress for victims of torture and ill-treatment.
An entire chapter is devoted to detailed analysis of the judicial remedies available to detainees post-Boumediene, which the Commission concludes are neither adequate nor effective, citing concerns with the operation of presumptions and burdens of proof. While the report credits the US with positive changes made via the Military Commissions Act of 2009, it ultimately finds that the military commissions system fails to meet the government’s human rights obligations. Its main areas of concern include their “independence and impartiality …, the uncertainty regarding the application of the US Constitution; respect for the right of equality before the law, to confrontation and to a speedy trial; respect for the principle of legality, and the retroactive prosecution of crimes.”
“A Prison for Foreign Muslim Men”
The Commission notes that Guantánamo’s exceptional regime is rendered even more problematic because of its exclusive application to Muslim men of non-U.S. nationalities, “which creates the appearance that it is targeting individuals based on their nationality, ethnicity, and religion.” Reports of religious-related abuse also played a role in the Commission’s personal integrity analysis. The report’s conclusions and recommendations remind the US government of its obligations to respect detainees’ rights to freedom of conscience and religion, and specify that these include guaranteeing access both to communal prayer and a Muslim chaplain.
The Commission calls on the US to allow transfers for trial, emergency medical treatment, and also release and settlement in the cases of cleared men who cannot return to their home countries and are unwilling or unable to settle elsewhere. To that end, it asks Congress to repeal the National Defense Authorization Act provisions that restrict transfers of Guantánamo detainees to the United States, and urges the executive to interpret the NDAA requirements “in a flexible manner” so as to meet its rights obligations. The report also highlights other necessary measures within the executive’s power, such as expediting the Periodic Review process, stepping up diplomatic negotiations, accelerating transfers to countries of origin or third countries, and ensuring that Yemeni detainees cases receive individualized reviews.
Finally, it calls upon other member states to accept detainees for resettlement. Given the Commission’s influence in the region, advocates are hopeful that this report, with its detailed and unequivocal critique of the regime’s unlawfulness, will significantly help efforts to resettle some of the cleared men in Latin America.
Tuesday, August 18, 2015
by Connie de la Vega, Professor, University of San Francisco School of Law
In a 4-3 decision, the Connecticut Supreme Court recently held that the statute abolishing the death penalty had to be applied retroactively to the eleven inmates already on death row. The legislature abolished the death penalty in 2012 but did not make it retroactive to the cases of 11 persons already on death row. This decision is in compliance with international human rights principles and practice regarding the retroactive application of ameliorative statutes in criminal cases, as well as other international human rights standards.
The majority focused its decision on state law regarding cruel and unusual punishment but used several arguments from federal law to support it even though the U.S. Supreme Court has not addressed the issue of retroactivity in these cases. The Court also considered the history of the death penalty in Connecticut, which included the fact that only one person had been executed in the past 55 years, and only after that person had been on death row for 18 years and had given up his appeals. The delays in general led the Court to question deterrence and retribution as a basis for the death penalty, neither which is served by the lengthy stays on death row.
Justices Norcott and McDonald focused on the persistent allegations of racial and ethnic discrimination in the use of the death penalty, starting with its use against indigenous peoples, in the first concurring opinion. Justice Eveleigh focused on other states’ practice as well as other countries’ practices in the second concurring opinion.
The decision comports with international human rights standards on various levels. First, the principle of lex mitior in international law provides that ameliorative changes in criminal penalties should apply to those already sentenced. This principle is codified in national constitutions and international human rights treaties. It has been interpreted to have special significance in the context of the death penalty. The global practice not to execute individuals after a jurisdiction repeals the death penalty is in accord with this principle. Justice Eveleigh referred to the global practice to support the majority decision. Justice Eveleigh thanked Amicus Curiae Experts on International Human Rights and Comparative Law represented by Professor de la Vega and Hope Metcalf and cited to authorities in the brief.
The lex mitior principle has been codified in Article 15 of the International Covenant on Civil and Political Rights. This treaty has been ratified by 167 parties including the United States. The United States did attach a reservation on Article 15 that in part reflects the centrality of states to criminal law enforcement in the United States. No other party to the treaty included a reservation to that article when ratifying the treaty.
Other international principles related to this opinion reflect the general movement towards prohibiting the death penalty. Further, the lengthy delays in it application in the United States led the European Court of Human Rights to rule that because those delays constitute a violation of the prohibition of torture or inhuman or degrading treatment or punishment parties to the European Convention could not extradite people to the United States without assurances that they would not be subject to the death penalty. The discussion in the first concurring opinion on the discriminatory use of the death penalty in Connecticut since its inception is also in compliance with the principle of non-discrimination in international law and the International Convention on the Elimination of All Forms of Racial Discrimination which the United States has also ratified.
Perhaps the decision of the Supreme Court of Connecticut will lead other states in the United States to question the validity of the death penalty.
Monday, August 17, 2015
Palo Alto, California, home of Stanford University and headquarters to dozens of technology-related companies, is one of the most expensive cities in the world. The Stanford University paper reports that some employees receiving a so-called living wage commute up to three hours each way in order to find affordable housing that they can afford.
One group of modest income workers, however, found an affordable alternative in East Palo Alto: the Buena Vista mobile home park. Home to 400 largely Latino residents, this low income community, set amidst immense the wealth of the tech industry, has shown remarkable success and resilience. Many residents have lived in the mobile home park for generations. Buena Vista students attend Palo Alto public schools and, according to press reports, 100% graduate from high school. Many aspire to college and some have even attended Stanford.
Yet despite Buena Vista's legacy and its important role in enhancing community diversity, earlier this spring, the Palo Alto City Council approved the Buena Vista property owner's proposal to sell the 4.5 prime acres to a developer to build high rises.
The move had been in the works some time, and as early as March 2013, the Law Foundation of Silicon Valley weighed in against the sale.
However, despite the City Council's approval, a grassroots movement of Buena Vista residents, Stanford students and affiliates, and concerned Palo Alto residents have so far succeeded in forestalling evictions. Recent news reports indicate that a non-profit, Caritas, has made an offer to purchase the property and continue to operate it as a trailer park site for low income residents. The owner is currently weighing the offer.
The human rights aspects of this controversy have so far been below the surface of the public debate. Yet clearly, the human right to affordable housing, the right to education, and the emerging right to the city are all impacted by the mass displacement of Latino families from an oasis of affordable housing in a city that is otherwise beyond the reach of any modestly paid worker. And human rights is a particularly useful frame for drawing connections between the gentrification in Palo Alto with that in Washington, D.C., and Philadelphia and every other US city facing a housing affordability crisis.
Stanford University's Teaching Human Rights consortium strives to illuminate these connections, and it has recognized the human rights implications of the Buena Vista eviction. For more information on EPA and the Buena Vista controversy through a human rights lens, visit Stanford's Teaching Human Rights website.
Earlier this blog discussed the resistance to Obergefell by private businesses and government entities. One of the cases referenced was against a Colorado baker, Masterpiece Cake Shop, Inc. Masterpiece had refused to contract with Charlie Craig and David Mullins when they requested that Masterpiece prepare their wedding cake. Basing its findings on state law, the trial court found that Masterpiece had violated the law in refusing to accept the Craig-Mullens order. Masterpiece appealed.
Last week the Appeals Court of Colorado issued its opinion upholding the trial court's decision. The court rejected Masterpiece's argument that it had not denied the request because of the sexual orientation of the customers, but rather that it opposed marriage equality. The court rejected defendant's religious-based arguments and found that sexual orientation and marriage equality are so intimately bound together that the distinction cannot be parsed. The court dispelled any free expression argument, as well: "It is unlikely that the public would understand Masterpiece’s sale of wedding cakes to same-sex couples as endorsing a celebratory message about same-sex marriage." Masterpiece is considering appeal.
In Morehead, Kentucky, a court clerk refused to issue marriage licenses to several same sex couples. In so doing, the Clerk refused to comply with the Kentucky governor's direct order. Last Wednesday, Federal Court Judge David Bunning ordered the clerk, Kim Davis, to resume issuing marriage licenses. But Ms. Davis did not show up for work on Thursday. Looks like Morehead County might be welcoming a new clerk soon.
The NY Times also reported that thirteen Alabama probate judges are refusing to issue licenses. One unintentionally humorous response from a state legislator was to encourage the state to get out of the marriage license business, the abolition of civilly recognized marriage. Now there is an idea many feminists can get behind. Roll Tide!
Friday, August 14, 2015
Guest writer Irene Scharf writes on the Obama Administration's response to release of women and children from the immigrant detention centers:
The recent decision by U.S. District Judge Dolly Gee condemning the government’s mass incarceration of refugee families, specifically mothers and children seeking asylum in the U.S., reminds us that the Obama Administration continues to maintain ill-advised positions with regard to the treatment of immigrants in this country.
The Administration’s disappointing response to Judge Gee’s decision is to continue supporting the incarceration of refugee women and children who have fled violence and persecution in their home countries. The decision has been denounced by several organizations with expertise in this area, including the Center for Gender and Refugee Studies and the national American Immigration Law Association.
The Center for Gender and Refugee Studies (CGRS), which has called for an end to mass family incarceration, notes that the “ruling correctly found that incarcerating children with their mothers violates the Department of Homeland Security’s (DHS) obligations under the 1997 Flores v. Reno settlement agreement, which governs the custody and treatment of children by DHS. That agreement … requires release of children along with their mothers unless the families pose a flight risk or danger.” The decision enumerated some of the harms caused by confinement of children, including “‘long-lasting psychological, developmental, and physical harm” as well as impeded “access to legal representation, critical for asylum seekers navigating our complex system of immigration laws.”
The government’s insensitivity to the rights of immigrants, particularly children, is not new. In 1988, in an article I co-authored, What Process is Due? Unaccompanied Minors' Rights to Deportation Hearings, we examined the rights abuses to which unaccompanied immigrant children were subject by the legacy Immigration and Nationality Service. During that time, prior to the institution of protections, children entering without their parents were wrongfully pressured to waive their rights to deportation hearings, even when they had asylum claims. The administration's ongoing support for detention is reactionary by perpetuating the abuses the Flores settlement was intended to end.
A New York Times article on the subject notes that
“Judge Gee … found that migrant children had been held in ‘widespread deplorable conditions’ in Border Patrol stations after they were first caught, and she said the authorities had ‘wholly failed’ to provide the ‘safe and sanitary’ conditions required for children even in temporary cells.” (Julie Preston, July 26, 2015). The CGRS reminds us that “[t]he operation of inhumane family detention facilities violates the rights of refugee families and contravenes our cherished national commitments to liberty, due process, and justice.”
As of June 30, about 2,600 women and children were held in the three incarceration centers, according to government officials.
Thursday, August 13, 2015
Interested in investment policies, human rights and the global economy? Teaching international business, private international law or development and human rights this fall? The London School of Economics hosts a nifty website -- the Investment and Human Rights Learning Hub -- that provides an entrée into the topic, including lots of graphics for visual learners and thinkers. Here's background info from the site:
"The Learning Hub is an online space created to build understanding on investment, human rights and their connections. The Hub will explore the implications that these connections have for the work of governments, commercial practitioners and civil society in ensuring the protection of and respect for human rights.
The Learning Hub is dynamic. It will develop over time, and there is much to explore already. With the Investment & Human Rights Map, the Hub proposes an innovative way to visualise and think about investment and human rights. Start exploring the Map, which will take you to tailored explanations of investment activities, human rights and their connections in each of the following areas:
- Understanding Human Rights
- Regulating Investment
- Resolving Investment Dispute
- Financing Investment
- Designing Investment Strategies
Wednesday, August 12, 2015
“The human rights framework just hasn’t taken off,” a grantmaker told me today. “It’s really just at the margins of efforts toward social change.”
Of course, as someone who focuses her working hours on the transformative potential of human rights, I wasn’t happy to hear this view. But at the same time, I wondered how it was that he reached this conclusion.
Preparing to write a blog for today, I surveyed, as I often do, recent human rights developments in the US. And as always, there were many. Some were positive developments, like the mainstream news’ recognition of the Coalition of Immokalee Workers’ successful campaign to improve working conditions for farmworkers, and reports that big businesses are beginning to prepare human rights impact statements as part of their reporting to stockholders and consumers. Another mainstream article, looking over the Supreme Court term, noted not only the Obergefell decision, but Justice Kennedy’s statements expressing concerns about solitary confinement and laying the groundwork for future restrictions of that practice. Of course, some U.S. human rights news was less encouraging, such as the Justice Department’s fight to narrow the scope of Judge Gee’s ruling releasing immigrant families from detention or the rising water bills around the nation that threaten to jeopardize low income families’ health, housing and well-being.
Why, with all of this activity, much of it explicitly linked to the US human rights movement, did the grantmaker view human rights frames as marginal?
I can imagine a number of reasons. Perhaps groups like the National Economic and Social Rights Initiative or the US Human Rights Network are so modest about their successes, so team-oriented and so willing to spread the credit that the role of human rights as an important mobilizing, organizing and policy-shaping tool is obscured.
Or perhaps grantmakers feel that they must try to name a single frame as the most effective vehicle for social change and disregard the others. If human rights is at the margins, then the grantmaker must see something else at the center – perhaps civil rights, or human-centered design, or art. But surely these hierarchies are misleading. All of the frames are in the mix at any one time, and all of them are doing work toward social change, with the margins serving as boundaries that define and strengthen the center. I imagine stirring up a cake mix with an electric mixer. Some stuff gets stuck on the sides, but soon enough, it gets brought back in and becomes part of the center itself, absolutely necessary to the cake’s success.
Or perhaps the grantmaker is simply misinformed. Among the US human rights items that hit my desk recently was a report on the Milk with Dignity campaign in Vermont, patterned on the CIW campaign. The campaign effectively publicized the working conditions at dairies in the state, brought Ben & Jerry's to the negotiating table, and inspired a film that carries the message forward. Social change in small places, close to home . . . it might be mistaken for marginal work and lack of progress, but that would be wrong.
Tuesday, August 11, 2015
U.S. human rights advocates often gain perspective on the meaning of human rights and what is possible for human rights implementation through global interactions. For example, the Human Rights Cities movement that is taking hold in US cities such as Pittsburgh originated in Argentina. And the U.S. movement for a right to civil counsel has been inspired by, as Justice Ginsburg might say, “sidelong glances" to civil justice systems in Europe.
In November, the U.S. government will celebrate the international education that often facilitates such exchanges of human rights ideas with International Education Week, November 16-20, 2015. This is a sort of pot-luck celebration, with a “bring your own” format; the hosts (in this case, the U.S. State Department and the Dep't of Education) provide the advertising space and ideas for promotional materials, while the guests bring the programmatic content. According to the government website:
"International Education Week is an opportunity to celebrate the benefits of international education and exchange worldwide. This joint initiative of the U.S. Department of State and the U.S. Department of Education is part of our efforts to promote programs that prepare Americans for a global environment and attract future leaders from abroad to study, learn, and exchange experiences in the United States.
We encourage the participation of all individuals and institutions interested in international education and exchange activities, including schools, colleges and universities, embassies, international organizations, businesses, associations, and community organizations. Individuals and institutions tend to hold IEW events as it is convenient for them in their local communities. We want you to celebrate as much and as often as you like! To that end, we are providing promotional materials that allow you the flexibility to promote events whenever they may be planned!”
While the domestic US human rights movement certainly does not represent an incursion of international ideas, the National International Education Week provides an opportune vehicle to showcase many of the human rights events that are happening around the US, and that are enhanced by international dialogue. To advertise your event, click here.
Monday, August 10, 2015
For years, Washington University at St. Louis professor Mae Quinn and her students in the Juvenile Law and Justice Clinic raised constitutional and other legal concerns on treatment of juveniles in the St. Louis County Family Court and other Missouri youth justice venues. Prof. Quinn highlighted many of these problematic practices and experiences in her law review article, "The Other Missouri Model: Systemic Juvenile Injustice in the Show Me State."
Prof. Quinn and her students through in litigation and public education that the St. Louis County Family Court system failed to provide constitutional protections to juveniles.
In November 2013 the United States Department of Justice launched an investigation of the St. Louis County Family Court. Remarkably, clinic students were thereafter banned from appearances in St. Louis Courty's family court. This seemingly retaliatory action was noted in a report released by the Department of Justice affirming the concerns raised by Prof. Quinn and her students.
DOJ analyzed 33,000 juvenile court cases and found that black children are disproportionately represented in decisions to formally charge youth versus informal resolution. The Analysis of 33,000 juvenile court cases showed that Black children are disproportionately represented in decisions to formally charge youth versus handling matters informally. Black children were also more likely to be placed in state custody and in a secure facility., detain youth pretrial, commit youth to Youth Services custody pending trial and place youth in a secure Division of Youth Services facility post- conviction.
Among the constitutional violations cited in the report are:
- Failure to ensure youth facing delinquency proceedings have adequate legal representation;
- Failure to make adequate determinations that there is probable cause that a child committed the alleged offense;
- Failure to provide adequate due process to children facing certification for criminal prosecution in adult criminal court;
- Failure to ensure that children’s guilty pleas are entered knowingly and voluntarily;
- An organizational structure that is rife with conflicts of interest, is contrary to separation of powers principles and deprives children of adequate due process; and
- Disparate treatment of Black children at four key decision points within the juvenile justice system.
Prof. Quinn responded to the report saying:
I am heartened by the report by the United States Department of Justice, which sheds further light on many of the legal concerns and constitutional issues my clinic students and I have encountered and been challenging in local juvenile court systems over the last six years.
“While we have worked with many caring and committed judges, prosecutors, and probation staff during this time — we have also repeatedly been shocked by practices that work to undermine basic rights of due process, representation and zealous advocacy. More than this, the very structure of the system runs counter to basic constitutional separation of powers norms — where everyone but the child and her lawyer (when one is present) — is part of the same team. In such an environment and culture, it is very hard to meaningfully represent children — largely poor youth of color — who are already at risk in this community.
“I am hopeful that this document — like other recent findings and reports that have been issued by DOJ, the Ferguson Commission’s working groups, and others — will serve as a further platform for change in the region. And, as before, the Juvenile Law and Justice Clinic at Washington University School of Law stands at the ready — willing and able to represent kids in our courts and work collaboratively to rethink our juvenile justice system in the days ahead. At this point I believe there is plenty of good will and ability to bring about meaningful reform. I look forward to St. Louis County — particularly as it gets ready to open the doors on its new multi-million dollar youth justice center — serving as a model of best practices for youth justice across the country.”
Friday, August 7, 2015
Zachary Kaufman, a fellow at Harvard's Belfer Center, recently posted his article titled "From the Aztecs to the Kalahari Bushmen - Conservative Justices' Citation of Foreign Sources: Consistency, Inconsistency, or Evolution?",in the on-line edition of the Yale Journal of International Law. Perhaps in hopes of laying this controversy to rest once and for all, Kaufman provides a detailed analysis of conservative justices' uses of foreign law in the recent Obergefell oral argument and subsequent decision. Here is the abstract:
On April 28, 2015, there were few surprises at the Supreme Court. During oral argument in Obergefell v. Hodges, counsel for each side mostly rehearsed the usual marriage equality arguments around rights, dignity, fairness, love, procreation, family, tradition, religion, and slippery slopes. Almost two months later, on the historic day of June 26, the Supreme Court announced its decision in Obergefell. The 5-4 majority opinion held that the Fourteenth Amendment requires states both to license marriages between two people of the same sex and to recognize such marriages if lawfully licensed and performed out-of-state.
What stands out as different in the reasoning of Obergefell is that members of the Court's conservative wing invoked foreign law in a constitutional case about a domestic matter. By doing so, the Court's conservatives appeared to contradict their own previous statements about the role of foreign law in interpreting the U.S. Constitution. Besides legalizing marriage equality, Obergefell may therefore also set an important precedent as to the appropriateness of citing foreign sources in constitutional decisions.
Thursday, August 6, 2015
Prof. Margaret Drew introduces UMass Law 3L Michael McGeown-Walker who wrote the following post, a version of which earlier appeared in the Albany Times Union.
Earlier this summer, the state of South Carolina removed the Confederate battle flag from the Confederate Soldier Monument near the state's Capitol building entrance. The flag had been there since 2000, and before that, it waved atop the capitol building since 1961. Remarking on its removal to South Carolina Confederate Relic Room and Military Museum, the curator suggested that the action was a "gesture of chivalry" to hopefully bring some level of healing to the state after the abhorrent killing of nine African Americans at the Emanuel African Methodist Episcopal Church in Charleston. The operative word in that quote is "gesture." While there is a measure of understanding in removing a flag from the grounds of the state Capitol, the action is largely symbolic. And that is what flags are: symbols. In this case, the Confederate flag became a symbol of an attitude of hatred. After that terrible event, many called for removal of the flag as a public response by the state. The gesture of removing the flag from the vicinity of the state's Capitol building was like putting a BandAid on a bullet wound: it may look alright for a moment, but BandAids don't heal wounds. What removing the flag does is make us feel better. Like electing a black president or ousting a racist owner of a basketball team, it makes us feel as though we are doing something to solve the problem, all the while sweeping the real problems under the rug. Racism is complex. It persists in so many forms. Men with white hoods have been replaced by mass incarceration, wars on the impoverished, and a vitriolic, kneejerk response to intelligence and education. Symbolic gestures, such as removing a flag, are only as useful in their ability to spur on movements that address racism in a comprehensive manner. If the removal of the Confederate flag from the Capitol grounds in South Carolina ignites action on issues such as mass incarceration, poverty and education, then perhaps this gesture will stand for something far greater. But until that time, it is nothing more than an underwhelming response to an overwhelming problem.