Thursday, February 11, 2016
According to the Center for HIV Law and Policy, women living with HIV statistically tend to be poor and women of color. These and other women living with HIV, face multiple societal and cultural barriers, and are further stigmatized because of their HIV status. Women face barriers that men with HIV do not.
The interplay of the triple stigma is no more evident than in family court. At least one half of women living with HIV report being in or having been in an abusive relationship. They experience partners controlling their medication. In some cases, their HIV positive partners consume the medication rather then seek medical help on their own. Women who seek civil protection orders must consider the likelihood of the partner's "outing" their medical condition in open court or through public documents. Often women choose not to reveal their HIV status, trading critical testimony for either privacy or the abusive partner's silence. Jane Stover addressed the difficulties of HIV positive battered women in her article Stories Absent from the Courtroom: Responding to Domestic Violence in the context of HIV-AIDS. But not all of the legal challenges originate with abusers.
Mothers living with HIV face challenges in custody matters that HIV positive fathers do not. When women are infected, particularly women of color, courts are concerned with the cause of infection. Consistent with the cultural expectation of the "perfect mother", presumptions are made around women's sexuality, including promiscuity and sex work. Reproductive rights can be impinged by physicians not understanding that for medically treated mothers, transmission between mother and fetus is nearly impossible.
Women also can be encouraged to take PrEP, the relatively new medication that has proven effective in preventing transmission. But the drug's testing was done largely with the men who have sex with men. The research leaves unanswered questions of how the drug will impact women's hormonal systems as well as bone density. Little has been done to ensure the safety of children breastfeeding from mothers who take PrEP. And transgender women need studies separate from other women.
Two organizations that focus exclusively on the needs of women living with HIV are creating change. Positive Women's Network has conducted research on the barriers faced by HIV positive women and SisterLove assists women living with HIV in resolving their health care challenges, including reproductive health. The greatest health care challenge may be how to make health care and research systems inclusive when addressing solutions for those living with HIV.
Wednesday, February 10, 2016
This is the first in a series of posts addressing the status of those in the US living with HIV/AIDS.
To varying degrees of culpability, over thirty states in the nation have laws criminalizing having sex while HIV positive. States vary from treating HIV the same as exposing a partner to any STI to intentional infection of a sexual partner. Many of the statutes are based upon outdated science.
Most criminalization statutes originated during the hysteria of the 1980's when thousands, primarily gay men, died of the virus because no stabilizing or preventive medication had been developed. The treatment world has changed. And while a few states amended or invalidated laws designed to punish those living with HIV for having sex without disclosing their status, overall the U.S. has done very little to update laws to reflect the limited likelihood of transmission.
No longer is HIV a terminal condition. Contemporary treatments are effective not only in extending life within normal range, but in prohibiting transmission. Viral loads can be undetectable, making transmission impossible. Aids.gov states that HIV cannot be transmitted through saliva. There is no known case of HIV transmission through spitting, yet many states enhance punishment for those who are HIV positive and spit on a police officer. Bad science makes bad laws.
In 2008, a man in Iowa, Nick Rhoades. was sentenced to 25 years after a one time sexual encounter during which he used a condom but did not disclose his positive status. His viral load was undetectable. After spending over five years in jail, his sentence was reduced to time served after Lambda Legal successfully assumed representation. Prison release happened only after Rhoades spent six weeks in solitary confinement, a traumatizing experience all its own.
While HIV is treatable, this does not diminish anguish felt by those who have been infected through a non-disclosing sexual partner. But the penalty for transmission, even intentional, is often as great or greater for crimes of where the victims are killed. The most recent conviction took place in Missouri last year. Twenty-three year old Michael Johnson was prosecuted for knowingly exposing sexual partners to HIV. Only one of the partners contracted HIV due to the encounter with Johnson. Johnson was sentenced to over 30 years in prison, a sentence far longer than most manslaughter sentences.
According to the Center for HIV Law and Policy nearly two hundred HIV prosecutions have occurred since 2008.
The Global Network of People Living with HIV calls the US one of the world's hotspots for HIV criminalization.
Tuesday, February 9, 2016
Unlike over 100 other nations, the United States does not have a national human rights institution (NHRI). But if it did, the US NHRI could participate in an international HRI-led initiative designed to strengthen HRIs' oversight of water-related inequalities and other human rights violations. The initiative was first launched in 2013 with a focus on good water governance. As stated in its founding documents, "NHRIs can provide a core function in the promotion and protection of human rights linked to water and water governance and contribute to a human rights-based water governance."
In furtherance of these goals, in late January 2016, WaterLex and the Danish and South African human rights institutions published a training manual for use by NHRIs. And in March 2016, they will launch an on-line training platform on water rights for NHRIs.
US advocates have been working for some years to establish an NHRI without success. But as we in the US learned in recent weeks, human rights oversight is critically important when it comes to water. If the US did have an NHRI, it could fill an important gap in monitoring, sharing information, and supporting local implementation of the human right to water and sanitation.
Monday, February 8, 2016
Risa E. Kaufman, Executive Director, Columbia Law School Human Rights Institute, and lecturer-in-law, Columbia Law School
Human rights are alive and well in the Florida tomato fields, according to a report released last week by the Fair Food Standards Council. The report is the third annual update on the Fair Food Program, a groundbreaking worker-driven social responsibility program based in human rights. An outgrowth of the Coalition of Immokalee Workers’
(CIW) Campaign for Fair Food, the Program is combating human trafficking, forced labor, sexual assault, and wage theft within the Florida tomato industry, and securing dramatic improvements in worker health and safety conditions. According to experts discussing the new report at a launch event last week, the Program is inspiring new efforts, as well.
The Fair Food Program has its origins in CIW’s Boot the Bell campaign, an almost four year boycott of Taco Bell that led to a 2005 Fair Food Agreement with Yum Brands (parent company of Taco Bell, Pizza Hut and KFC). Over the past ten years, the Program has grown remarkably, with retail and restaurant giants including Walmart, Whole Foods, McDonald’s, Burger King, Chipotle, Ahold USA, and Aramark signing on. These companies pledge to buy only from tomato growers who comply with the Fair Food Standards, a human rights-based Code of Conduct, and to pay the growers an extra penny-a-pound, which is passed on the workers. The new report notes that the 14 participating companies have paid $20 million in premiums through the penny-a-pound provision.
The new report confirms improvements to the Florida tomato industry recently reported by CBS News and the New York Times. The success of the Fair Food Program was recognized by the UN Working Group on Business and Human Rights during its 2013 visit to the U.S. and lauded by U.S. Secretary of State John Kerry during a White House Forum on combating human trafficking in supply chains. At the White House event, CIW was awarded a Presidential Medal for Extraordinary Efforts to Combat Trafficking in Persons.
What contributes to the success of the Fair Food Program in eradicating modern-day slavery in Florida’s tomato industry? At the report launch event last week, experts identified two core components of the Program: it is worker-driven, and it has an “obsessive” focus on enforcement. Workers generated the Code of Conduct underlying the program, and CIW engages in worker-to-worker education on company time and company property. Company compliance with the Code of Conduct is monitored by the Fair Foods Standards Council , which overseen by Judge Laura Safer Espinoza, a recently retired New York State Supreme Court Justice. And it is backed by market consequences. Growers who violate the code are suspended from the program. Workers can lodge complaints through a 24-hour hotline, where calls are answered by a live person.
According to the new report, there have been over 1100 complaints brought under the Code of Conduct, leading to swift resolution of labor abuses. The Fair Food Standards Council has issued approximately 120 reports and corrective action plans, based on worker interviews and audits. According to the experts at the launch event, this efficacy also drives prevention.
The Program’s success can be measured by its replication, as well. The Fair Food Campaign is inspiring workers in other industries. Transformation might come next to the dairy industry, as the Milk with Dignity Campaign gets underway. Through the farmworker organization Migrant Justice, dairy workers in Vermont, with support and collaboration from CIW and the National Economic and Social Rights Initiative, are adapting the Fair Food Campaign model. They recently secured an agreement of cooperation with Ben and Jerry’s ice cream.
And, the Fair Food Campaign is moving into new territory, including Georgia, North and South Carolina, Virginia, Maryland, and New Jersey, as well as new industries, including the strawberry and bell pepper industries.
Success should be celebrated. And it should be shared. For those looking for ways to communicate the “value added” of human rights in the domestic context and the importance of worker-led social responsibility, the 2015 annual report on the Fair Food Program offers concrete data and powerful illustration.
Sunday, February 7, 2016
One observation of President Obama as he completes his presidential term is amazement at his ability to remain spiritually centered during eight years of personal, hateful, attacks. Over the course of the past eighteen months, the President has been less constrained in his comments on racial and gender inequities. He is able to address, in action as well as speech, issues that he may have avoided or minimized when facing re-election.
But even if the President were not now loudly promoting equity for the culturally marginalized and other human rights, I would honor him for a significant personal and public achievement. Against odds, he is leaving office a centered man.
While sometimes his frustrations with the political process leaked through, grace has been his hallmark response when criticized or stonewalled. As with all presidents, he has aged notably. As with his predecessors , this President has experienced responsibilities that were not imagined during his first campaign. The responsibilities are humbling. President Obama acknowledged that daily briefings on the extent of terrorist activities has softened some of his criticisms of his immediate predecessor. Nursing the economy back to stability has taken patience and persistence in the face of public and congressional criticism.
While these pressures may seem extraordinary to us, they are ordinary for presidents. What has been unusual for this President was the unreasonable, aggressive opposition he experienced not because of his political choices but because of who he is: a black man in what is often considered the most powerful position in the world. Racism trumps reason. Times over the past seven years when Congress came together to act in the best interests of the country can barely be sussed out. For many, the exclusive agenda was to undo the black man. Mission not accomplished.
Dignity has been a recurring theme on this blog. Dignity is the cornerstone of human rights work. Justice Kennedy's invocation of dignity in Obergefell v. Hodges has been pondered by our bloggers. No matter what our political criticism and differences, we would be missing an opportunity to recognize personal dignity if we do not honor the President's ability to maintain his own under incredible pressure. While no doubt the attacks have caused him personal strain, President Obama's centered leadership model in spite of the strain has been a singular accomplishment of his administration.
As noted at the time, awarding the Nobel Prize for Peace early in his presidency was premature. The sentiment supporting the award may have been for the singular and amazing accomplish of being elected while black. The award might have carried more significance if given at the end of the President's term for his ability to maintain peaceful leadership within our country despite what many consider a war on him.
Thursday, February 4, 2016
A new book from Cambridge, The Making of Human Rights: The 1960s, Decolonization, and the Reconstruction of Global Values, by Stephen L.B. Jensen, due out this month, promises to make an important contribution to the scholarly dialogue on the origins of contemporary human rights. According to the Cambridge website:
"This book fundamentally reinterprets the history of international human rights in the post-1945 era by documenting how pivotal the Global South was for their breakthrough. In stark contrast to other contemporary human rights historians who have focused almost exclusively on the 1940s and the 1970s - heavily privileging Western agency - Steven L. B. Jensen convincingly argues that it was in the 1960s that universal human rights had their breakthrough. This is a ground-breaking work that places race and religion at the center of these developments and focuses on a core group of states who led the human rights breakthrough, namely Jamaica, Liberia, Ghana, and the Philippines. They transformed the norms upon which the international community today is built. Their efforts in the 1960s post-colonial moment laid the foundation - in profound and surprising ways - for the so-called human rights revolution in the 1970s, when Western activists and states began to embrace human rights."
Trained as a historian, Jensen is a scholar of considerable breadth, working at the Danish Institute for Human Rights on issues ranging from HIV to national human rights institutions. His new book promises to provide a much-needed southern perspective on a historical era that has been dominated by northern-focused scholars. Check it out!
Wednesday, February 3, 2016
Law profs and others may be looking for resources to support classroom discussions of water issues in Flint, Detroit, California and elsewhere through a human rights lens. This blog collects some of the material that we've found most useful. First, for a comprehensive overview of the human right to water and sanitation, check out The Human Right to Water by Inga Winkler. It's an authoritative work that is a valuable reference in this area. For more general background materials, see the website of the UN Special Rapporteur on the Right to Safe Drinking Water and Sanitation. This website also includes some US-specific materials, since the prior Rapporteur completed a mission to the US in 2011. The report from that US mission is available here.
Most US-related materials do not adopt a human rights perspective, but can be used to lay the groundwork for a human rights-related discussion. For example, Sharmila Murthy's forthcoming article on Detroit's water shutoffs does not take a human rights approach, but argues that water should be deemed a constitutive commitment on the order of a constitutionally protected right. Jon Monger's Note on the Kennedy v. Zanesville case tells the dramatic story of that case while also demonstrating the limits of a civil rights approach to water access.
Several law school clinics have recently produced significant work on human rights at water that may be useful. In the wake of California's human right to water law, the Berkeley Clinic produced The Human Right to Water Bill in California: An Implementation Framework for State Agencies, with ideas about how to operationalize this right. The Georgetown Human Rights Institute published Tapped Out: Threats to the Human Right to Water in Urban United States. Clinics also took the lead in requesting a hearing on water rights in the US before the InterAmerican Commission on Human Rights, held in 2015. The Santa Clara Human Rights Clinic's submission to the IACHR is here.
Finally, ESCR-Net filed an amicus brief in Detroit arguing that the court considering a challenge to water terminations should take human rights into consideration. That brief, which brings together relevant international law and applies it in a US context, is available here.
Tuesday, February 2, 2016
But this is not your average essay contest. Oxfam and TJN are looking for actual complaints against tax-dodging corporations or those 62 rich people who control half of the world's wealth. According to the organizers, "We’re inviting 3,500-word complaints to identify the plaintiffs, defendants, remedies sought, and arguments that are considered enforceable in an existing legal forum. We seek complaints that could form the basis of effective advice to developing countries, or to groups of citizens in countries at any income level who have suffered, and want to know how they could best use law to protect their or their people’s human rights in the face of tax injustice."
Winners will be flown to London for TJN's annual research workshop, but more significantly, submissions to this competition will be considered for active litigation.
The deadline is March 13, 2016. For more information, click here.
Through the tireless work of people on the ground in Michigan communities, the national media outlets finally put the Flint water crisis on the front page in January, months after the story first surfaced. But while there is much that should be said about the government mistakes and cover-ups that led to this terrible human tragedy, it is also worth remembering the larger context. The choice to switch to Flint River water was driven by the rising costs of water. Circle of Blue reports that US water prices have risen 41 percent in the past five years. In the absence of federal subsidies or a nationally-financed plan of investing in water infrastructure, the increasing maintenance and treatment costs are passed on to cities and then to local consumers. For many residents of Flint, relying on low wage jobs or fixed incomes and juggling other household expenses, those kinds of increases are simply unaffordable.
Today, most people in the US still have ready access to basic water and sanitation, but as costs rise, water inequality is growing. As we move into this new era, we must ask, do we have the legal infrastructure in place to ensure access to necessary water and sanitation, to provide those most basic aspects of human dignity to all residents of the United States? Human rights law calls for water and sanitation that is available, accessible, safe, acceptable and affordable for all, without discrimination. Some jurisdictions, like California, have begun to incorporate these norms into their laws. Human rights-based water law reforms are also pending in Michigan. Cities including Philadelphia, St. Louis and Cleveland offer affordability plans to enable low income households to pay what they can afford and keep their water access. Certainly, the crisis in Flint makes clear that any US exceptionalism on this issue is misplaced. The right to water and sanitation is not just an issue for developing countries, but must be taken seriously in the U.S. as well.
Monday, February 1, 2016
A recent report from the social sciences field explores the trend of higher gay and lesbian presence in certain fields of labor and careers than others. The title of the report is Concealable Stigma and Occupational Segregation: Toward a Theory of Gay and Lesbian Occupations. It was published by Administrative Science Quarterly, but has been featured separately on the London School of Economics and Political Science’s Business Review Blog and Paul Caron’s TaxProfBlog in the last few weeks.
So why are gay and lesbians overrepresented in certain fields such as psychology, social work, law, and higher ed teaching? Are there truthful correlations in age-old stereotypes regarding the type of careers that gays and lesbians take on in the workplace (e.g., gay hairdressers and lesbian truck drivers)?
In assessing, what the title of the report calls, “concealable stigma” and its link to occupational segregation of sexual minorities into certain jobs, the authors of the report, András Tilcsik (University of Toronto), Michael Anteby (Boston University), and Carly R. Knight (Harvard), have observed that sexual minorities tend to hold occupations that allow them to rely on their experiences of discrimination and social stigma. Gay men and lesbians tend to be drawn to occupations that require task independence—the ability to perform tasks without large dependence on coworkers—because it allows concealment of sexual orientation and reduces negative consequences of being “out.” They also tend to hold occupations that require high social perceptiveness—of being able to accurately read, anticipate and gauge others’ reactions. A table of empirical data regarding the types of occupations with high numbers of gay and lesbian workers from the report with observations regarding whether such occupations require task independence and/or social perceptiveness is reproduced here:
Occupations with the Highest Joint Proportion of Gay and Lesbian Workers
1. Psychologists (S*, T**)
2. Training and development specialists and managers (S)
3. Social and community service managers (S, T)
4. Technical writers (T)
5. Occupational therapists (S, T)
6. Massage therapists (S, T)
7. Urban and regional planners (S, T)
8. Producers and directors (S, T)
9. Postsecondary teachers (S, T)
10. Probation officers and correctional treatment specialists (S, T)
11. Morticians, undertakers, and funeral directors (S)
12. Physical therapists and exercise physiologists (S, T)
13. Computer and information systems managers (S, T)
14. Lawyers, and judges, magistrates, and other judicial workers (S, T)
15. Web developers (T)
*S = Occupation requires above-average social perceptiveness
**T = Above-average task independence is associated with the occupation
The authors theorize that eventually such occupational trends might change as sexual minorities become more visible and accepted due to the visibility of same-sex relationships. Gay and lesbians might lose their social perceptiveness. But for now, the authors believe that there will continue to be strong correlation between social stigma and discrimination and the career paths that gays and lesbians pick.
What’s interesting for this writer of the HRAH blog is how social stigma of sexual minorities is characterized by this report as a strong but invisible influence for career choices and how it contributes to segregation and hierarchy in the workplace. Occupational choices are complicated for the livelihoods of gays and lesbian just as they are for everyone else. But as the report seems to suggest, the choice of career paths for gays and lesbians consists of influences and skills obtained from their history of societal marginalization and segregation. Whether the truth is as emphatic as the authors present here, their ideas are fascinating considering the substantial amount of time that we all spend in our lifetimes at work.
Sunday, January 31, 2016
Hollywood loves a good bad guy.
From ruthless mobsters to drug kingpins to serial killers, evil characters are often plucked from real-world events. As human trafficking has garnered more attention, it was inevitable that the issue would hit the big screen. Traffickers, after all, are your quintessential villains. They enslave and exploit human beings for profit.
Today, a growing number of films portray a hero taking down a human trafficking ring.
The Taken series, in which Liam Neeson plays an ex-CIA operative with “a very particular set of skills,” is arguably the best-known example. In the first installment, Neeson has 96 hours to rescue his daughter from an Albanian sex-trafficking ring in Paris that abducts young girls, drugs them and sells them to Middle Eastern sheikhs. He succeeds, of course, in supporting-cast-obliterating fashion.
In Human Trafficking, an earlier made-for-television movie, Mira Sorvino plays a New York City police officer who goes undercover to take down a Russian trafficking ring.
And in The Whistleblower, which is based on a true story, Rachel Weisz plays an American working as a UN peacekeeper in postwar Bosnia and Herzegovina who uncovers a trafficking operation.
These movies have helped raise awareness of human trafficking. But there’s one problem. As my research shows, Taken, The Whistleblower and Human Trafficking propagate and reinforce several critical misunderstandings about trafficking.
All three films portray only sex trafficking of young women and girls. The movies depict Americans as heroes, and “others” – Albanians, Arabs, Russians – as villains. The Whistleblower offers a more nuanced picture with both an American hero and some Americans involved in the exploitation. Finally, in true Hollywood fashion, rescue represents the end of the story.
A viewer might leave these movies unaware that there is more than trafficking for sex, that labor trafficking also exists and that it occurs in numerous industries, from agriculture and manufacturing to restaurants and hair salons. Viewers might not know that men, women, boys, girls and transgender individuals are all targets of human trafficking.
Viewers might also be misled into thinking that the problem is a foreign one, leaving them unaware of the role Americans play in human trafficking. In fact, some traffickers are American, and the U.S. drives demand for inexpensive goods like clothes and electronics, some of which is made possible by the work of exploited individuals.
Finally, moviegoers might have no idea that rescue is really only the beginning of an even more challenging process – assisting and supporting survivors in their recovery and reintegration into their communities.
Why does this matter? This is Hollywood, after all. We know that James Bond does not represent the reality of life as a spy, despite the more battered, world-weary spin Daniel Craig has given him recently. But most of us don’t engage in espionage after a spy movie ends.
Human trafficking is different. As President Obama highlighted in a recent presidential proclamation declaring January national slavery and human trafficking prevention month, every sector of society can play a role in combating this problem.
The president echoed what many scholars and advocates like myself have emphasized: a comprehensive, multisector response is needed to prevent human trafficking.
This effort requires that people know not just that human trafficking exists, but exactly what it is.
As with other violent crime, only a fraction of the population has any personal experience with human trafficking. Few individuals have talked with a survivor about his or her experiences, and not many have read the existing research on human trafficking. Most of the public garners much of what they know about human trafficking from media portrayals of the issue. This includes some individuals now working on anti-trafficking initiatives. I’ve listened to scholars and advocates at conferences praise these movies without mentioning their inaccuracies. It seems even the savviest among us believe more from the media than we discard.
If popular portrayals of human trafficking shape what advocates and the general population understand about the issue, then they will also shape what people advocate for. And federal and state law and policy on human trafficking reflect many of the same distortions found in films on human trafficking.
Beginning with the Trafficking Victims Protection Act in 2000 and continuing with dozens of laws adopted at the federal and state level since then, the law on human trafficking has centered primarily on criminal law, reflecting the “rescue” narrative. Such law enforcement is necessary but not sufficient. Other critical components – prevention and services for survivors – have received much less in the way of resources.
The depiction of young women and girls trafficked for sex as the quintessential victims has shaped law enforcement efforts, leading to a prioritization of combating sex trafficking of women and girls over labor trafficking or the plight of exploited men, boys and transgendered individuals.
When media portrayals show only sex trafficking of women and girls, the risk is that labor trafficking and other vulnerable and exploited individuals do not receive the attention they need. In fact, research by the International Labor Organization and other organizations suggests that the number of labor trafficking victims may well exceed the number of sex trafficking victims.
In addition, current anti-trafficking law and advocacy continues to pay too little attention to the root causes of this exploitation. The lack of emphasis on prevention reflects the popular notions that “rescue” is what is needed. It also indicates an unwillingness to acknowledge that mainstream U.S. culture and consumerism contribute to the demand for the goods and services provided by exploited individuals. In contrast to Hollywood portrayals, the reality is that the food we eat and the clothes we wear may well be produced by trafficked labor.
Of course, Hollywood is not going to stop making action movies. But we can do a better job of calling attention to the disconnect between cinematic portrayals of human trafficking and the reality of the problem. The desire to keep celebrities engaged in particular social issues is understandable given the attention they can bring to an issue, but it should not mean remaining silent in the face of inaccurate or unbalanced portrayals.
Ultimately, it is critical that policymakers and advocates have access to and rely on evidence-based research and survivor perspectives on human trafficking so that they can develop responses that are likely to make a difference.
Editors' Note: This post originally appeared The Conversation
Thursday, January 28, 2016
The Kansas Appeals Court last week blocked a law that would have placed restrictions upon a woman's right to obtain an abortion. The decision was split, 7-7, which is determined to support the lower court decision, in this case an analysis that the Kansas state constitution protects a woman's right to abortion. The 2015 law in question would have outlawed the surgical procedure dilation and evacuation which is considered the most common and the safest abortion procedure for second trimester abortions.
The lower court judge analogized the Kansas constitution with the federal one, stating that both constitutions provide the same protections and that the law created an impermissible obstacle.
Then this week tables were turned on anti-choice activists who had demanded an investigation into Planned Parenthood. Houston prosecutors had been urged to investigate Planned Parenthood for what anti-choice advocates claimed to be the entities' illegal disposal of fetal tissue. Part of the evidence the advocates alleged implicated Planned Parenthood, were illegally made videos. Investigators said that the grand jury considered evidence for over two months. Rather than indict Planned Parenthood, the jury indicted the two advocates who engaged in the surreptitious film making. They were indicted on felony charges of tampering with a governmental record and misdemeanor related to purchasing organs.
Once again, Planned Parenthood is being proactive. The organization has sued abortion opponents claiming a three year criminal enterprise to target the organization. The advocates are alleged to have used illegal techniques in attempting to discredit Planned Parenthood.
The new, aggressive policy of suing opponents that harm, or attempt to harm, the organization is a responsible and effective tactic that seeks consequences to those who attempt to defame and dismantle Planned Parenthood.
Wednesday, January 27, 2016
If I had to name a single U.S. Supreme Court case that effectively highlights the entrenched problems of the American criminal justice system, it would be Montgomery v. Louisiana: from the 1963 murder of Charles Hurt Jr., a white deputy sheriff in East Baton Rouge, to the conviction of Henry Montgomery, a developmentally disabled African-American teenager, to the ensuing half-century during which Montgomery has been warehoused at the Louisiana State Penitentiary in Angola.
In other words, when Montgomery v. Louisiana is viewed through almost any critical lens, the deep fissures in our broken system are clearly apparent: the legacy of Jim Crow as reflected in the disproportionate representation of people of color in today’s courtrooms, jails, and prisons; the nation’s continued reliance on mass incarceration to solve intractable societal ills; and the refusal of many prosecutors, judges, and juries to consider criminal offenders — even those who are children or are intellectually compromised — as worth more than the worst thing they have ever done.
In November 1963, Deputy Hurt was shot and killed in a park in Scotlandville, a town in the segregated South that has since been annexed by Baton Rouge but which at the time was the largest majority African-American town in Louisiana.
At the time of his death, Deputy Hurt was on patrol, looking for kids who were truant from school. One of his daughters has described her late father as someone who “saw beyond race at a time when such vision was uncommon at best” and even initiated a “Junior Deputy” program for boys from Scotlandville.
Immediately after the shooting, there was a wide-ranging search for Hurt’s killer, with hundreds of deputies and police from neighboring parishes setting up roadblocks and making mass arrests in Scotlandville. Dozens, if not scores, of African-American men from 12 to 59 years old were arrested, held and questioned about the murder.
Among those arrested was Henry Montgomery, a mild-mannered 10th-grader with intellectual limitations who had turned 17 only two weeks earlier. Unfortunately nicknamed the Wolf Man due to his oversized teeth (an “alias” that was publicized prior to the trial), Henry lived with his grandparents, as his mother was autistic and had her own challenges.
Detectives brought Henry to his grandparents’ house, where he pointed out a .22 caliber pistol in the rafters and then accompanied them to the park where he re-enacted the crime. The detectives audiotaped Henry’s confession, during which he stated that he had left school to take a nap in the park and had run into Deputy Hurt behind the recreation center. When Hunt was patting him down, Henry panicked and shot him with the pistol he had placed in his jacket pocket.
In February 1964, a jury of 12 white men deliberated for a day and half before returning a guilty verdict and a death sentence for Henry Montgomery. The Louisiana Supreme Court reversed his conviction two years later and ordered a new trial due to the trial court’s denial of both a motion to continue and a motion for a change in venue, which had been based on threats of cross burnings by the Ku Klux Klan before the trial and East Baton Rouge Parish’s adoption of a resolution proclaiming the first day of the trial to be “Charles Hurt Day.”
Five years later, although the mood of the community was calmer, it took another all white and male jury a mere 90 minutes to convict Henry of first degree murder, after which he was sentenced for an offense committed as a juvenile to mandatory life without parole (JLWOP) and sent to Angola.Fast-forward 50 years. Henry Montgomery is 69 years old and the U.S. Supreme Court has held in a 6-3 vote, written by Justice Anthony Kennedy and including Chief Justice John Roberts along with the liberal contingent of the court, that its June 25, 2012 decision in Miller v. Alabama declaring that life without parole should be reserved for only the “rarest of children” whose crimes reflect “irreparable corruption” applies retroactively.
This means that Montgomery, along with the approximately 1,000 or more inmates whose sentences were imposed before Miller (in states that had subsequently found Miller not to apply retroactively or had not yet addressed the question), will now have an opportunity for release.
In fact, the court in Montgomery has gone a step further than many anticipated by suggesting that, rather than conduct resentencing hearings in which the parties must opine whether the inmate was “permanently incorrigible” at the time of the original sentence, states may instead consider whether the inmate should be considered for parole, i.e., release from prison under specified conditions.
The court even referenced (although it did not confirm) Henry Montgomery’s good behavior at Angola, including the fact that he established an inmate boxing team and served as a role model to other inmates, as “relevant” examples of “one kind of evidence that prisoners might use to demonstrate rehabilitation.”
The process by which the court decides that a decision is retroactive was established in its 1989 ruling in Teague v. Lane, which requires retroactive application when the court declares a new rule of “substantive” law but not one of “procedural” law.
With Montgomery, the court ruled that Miller’s prohibition of mandatory life without parole for juvenile offenders was more than a procedural rule merely requiring the judge or jury to consider the defendant’s “youth” before the sentence. Instead, the court ruled that Miller more profoundly “rendered life without parole an unconstitutional penalty” for juveniles whose crimes “reflect the transient immaturity of youth,” and, thus, was the announcement of a new substantive rule.
In classic form, Justice Antonin Scalia’s dissent, joined by Justices Clarence Thomas and Samuel Alito, contends not only that the court lacks jurisdiction to decide the case (meaning that the rule of Miller was procedural and not substantive), but that “the decision it arrives at is wrong.” He asserts that the court’s resolution of the jurisdictional issue is ends-oriented, driven by the majority’s desire to reach the merits rather than a commitment to follow precedent, which he calls “nothing short of astonishing.” He argues that rather than apply Miller to the facts at hand, the majority rewrites it: “This whole exercise, this whole distortion of Miller, is just a devious way of eliminating life without parole for juvenile offenders.”
It remains to be seen whether Montgomery v. Louisiana will be the death knell for JLWOP. As it stands, judges maintain the discretion to conclude that particular juvenile offenders convicted of homicide are, in fact, intrinsically incapable of redemption and will never be fit to re-enter society. There may be resentencing hearings and reviews by parole boards, but there are no guarantees of release, as we have already seen in states that have found Miller to be retroactive.
Yet, it cannot be denied that Justice Kennedy has continued to chip away at what he considers to be “disproportionate” and thus unconstitutional punishment for juveniles: with Roper v. Simmons, it was the death penalty; with Graham v. Florida, it was JLWOP for nonhomicide offenses; and with Miller v. Alabama, it was mandatory JLWOP for homicides.
With Montgomery, the court’s most consistent swing voter has authored an opinion that leaves little room for the state to justify sentencing a juvenile to die in prison. As Justice Kennedy wrote over a decade ago in Roper, “When a juvenile offender commits a heinous crime, the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity.”
Editor's Note: This post first appeared on the Juvenile Justice Information Exchange
Tuesday, January 26, 2016
In July, a University of Cincinnati Police Officer shot Samuel DuBose to death. Mr. DuBose was black and he was unarmed. The white officer pulled Mr. DuBose over for an automobile violation (no front license plate) and the shooting was filmed on the officer's body camera. At the time that the killing became known, the University, in not its finest hour, cancelled classes and closed the campus. Whatever anticipated demonstrations or riots the school was anticipating never happened. What did happen was that Officer Ray Tensing was arrested and is waiting his trial for murder.
Despite its initial overreaction, the University President, Santa Ono, stepped up in negotiations with Mr. DuBose's family. President Ono has generally been considered a vibrant and effective leader. On Martin Luther King Day, as a result of settlement negotiations, he obligated the University to pay $4.85 million to Mr. DuBose's family. Settlement was reached after only two days of negotiations. While the University did not admit liability, the School will apologize to the family as part of the agreement. "Dr. Ono said the university felt a “civic responsibility” to go beyond the kind of cash settlement customary in police-involved deaths." The President went on to say that he wanted to be clear that the University cares not only about the DuBose family but about peace in the City, as well. It was one of Mr. DuBose's daughter, Raegan Brooks, who discussed the pain of the experience, including the negotiations that at times caused emotional disturbance of what felt like putting a price on her father's life. She also spoke of her prior intentions to attend UC, plans that changed after her father's death.
Since the killing, the University has established a community advisory council on which a family member of Mr. DuBose will sit.
Monday, January 25, 2016
For the past two years, human rights advocates across the United States were deeply engaged with reviews of the US human rights record in Geneva, Switzerland. Reviews by the CERD, the Human Rights Committee, the Committee Against Torture. and the U.S. UPR necessitated an immense amount of reporting, as well as trips to Geneva for those who were able to secure the resources and make the time. Yet, with the conclusion of the UPR last spring, it seemed that the windows of opportunity to raise human rights concerns with U.N. human rights experts, and U.S. officials were closing.
Yet, fortunately for human rights, that has not been the case. Instead, a flurry of activity has opened new opportunities to push for U.S. human rights accountability. And these opportunities are right here at home. The U.N. Working Group on Discrimination Against Women in Law and Practice concluded its US visit on December 11. The experts traveled to Oregon, Alabama, Washington, D.C. and Texas to participate in a range of meetings with civil society and government actors, and received a range of written submissions. The visit was a valuable opportunity for candid conversations on the status of women’s rights in the United States, which informed the Working Group’s preliminary findings. The visit also garnered media coverage in local Alabama media (here and here), and national outlets, Vox and Huffington Post.
This week, the human rights conversations continue. Indeed, the visit of the U.N. Working Group on People of African Descent is already underway. (The Working Group previously visited the U.S. in 2010).
The Group’s current ten-day tour of the United States, has an emphasis on the fulfillment of human rights at the city level. The trip kicked off with federal government meetings, but much time will be spent in the field. The Working Group will visit Baltimore, Maryland; Jackson, Mississippi; Chicago, Illinois; and New York City. In each location, these human rights experts will meet with mayors, attorneys general, and advocates of all stripes. This visit comes at key time, when issues of racial discrimination and inequality are front and nationally and locally, from the presidential debates (or, at least some of them) to the water crisis in Flint, Michigan .
The U.S. Human Rights Network Coordinating Center has played a key role in organizing the visit, working with local steering committees in each city, and collecting written submissions in advance of the visit. All of the written and oral interventions by civil society and government representatives will inform the Working Group’s preliminary findings, which should be releasedthis Friday, as well a more comprehensive report to the Human Rights Council later this year.
I welcome the visit to New York, my hometown, where the Working Group members will meet with elected officials, staff from the State Attorney General’s office, and importantly, spend half a day meeting with civil society to address a range of issues, including housing, education, and policing.
The Working Group’s meetings with local government officials offer an incredible opportunity to lift up human rights violations, discuss local policies that work, and propose context-specific recommendations for progress. How local officials respond is likely to vary across cities, and across office holders. But there is a 100% guarantee that the visit lays the groundwork for future advocacy, which local groups should seize upon and leverage in future advocacy.
Lest you need some taking points to inform how to frame human rights when talking to your local officials, or want to demonstrate that human rights are a valuable tool in local policymaking, you can look to this recent piece by Birmingham Mayor William Bell: Human Rights as a Vision for the Future of our Cities.
By continuing the human rights conversation in every available venue, we can build the foundation for change.
Sunday, January 24, 2016
This week Flint, Michigan's Governor apologized for the lack of response by him and the state of Michigan's for the state's diverting contaminated water to the residents of Flint. The water is brown and filled with lead contaminants. President Obama declared a national emergency in Flint because of the water crisis.
Family members, particularly children, are experiencing high blood lead levels since the state changed the source of the city's water from the Lake Huron to the polluted Flint River. Flint is a city with a high population of low income families who primarily are people of color. In addition to changing the water source for Flint, the state stopped taking measures that minimize lead leaking from the old and dangerous water pipes.
To watch a video detailing the history of the crisis click here.
UMass Law School student Ashley Williams, a member of the Black Law Student Association, is mobilizing law students in soliciting water donations to residents of Flint, Michigan. In order to assist the Flint community, Ms. Williams contacted the University of Michigan Law School BLSA. Michigan Law students were already involved in assisting the Flint community, and gave Ms. Williams important information, support and advice on how collect and transport water. The Law School had already established designated drop points where trucks arrive to transport donated water to Flint.
Ms. Williams, who grew up in a poor neighborhood of Philadelphia, immediately identified with the problem when she heard of the contaminated water. " I felt it was important to show that the residents of Flint had a support system from busy students who have their own tight budgets. This was important to me because it's exactly what I would want for my city. " She asked where she could send water, even if a small amount of her own donation. Ms. Williams said that "she began to think of how big an impact this support would have if all students were involved, along with some corporate support. " Ms. Williams has contacted New England law schools as well as social organizations and corporations in various parts of the country to assist them in organizing water efforts of their own. Ms. Williams said that she came to UMass, which has a social justice mission, to be able to help people. Though busy with law school demands, she believes that service cannot wait until graduation.
Friday, January 22, 2016
On the 43rd anniversary of Roe v. Wade, Dean and professor at the Boston University School of Public Health, Sandro Galea, writes in US News and World Report that: "Reproductive rights worldwide are inextricable from gender equality and human rights, particularly the human rights of women." Two recent international developments confirm this worldwide understanding. First, late last year, a high court judge in Belfast found that Northern Ireland's restrictive abortion law was "incompatible with human rights." Second, just days ago, the UN announced that Peru will compensate a young woman forced to carry an anecephalic fetus to term because state health workers refused to perform an abortion.
Meanwhile, activists in the US are increasingly raising up the ways in which abortion access contributes to US women's equality. From the amicus brief of women attorneys who have had abortions, to the 1 in 3 campaign, to the Draw the Line campaign with real women's stories at the core, women's equality is the central theme. Importantly, these campaigns focus on experiences of women across class lines, rather than highlighting impacts of abortion restrictions on low income women who cannot afford to travel to far away clinics or who may not be able to pay for a night in a hotel room during a mandatory waiting period. When it comes to abortion, women's options certainly differ based on their resources, but the impact of abortion restrictions on women's equality resonates across classes and hopefully, in the well of the Supreme Court, too.
Thursday, January 21, 2016
Around the world, human rights lawyers and activists know about the “Torture Memos” – a series of memos prepared from 2001 to 2007 by lawyers for the US Office of Legal Counsel advising the US military and CIA that they were not bound by the plain meaning of the Geneva Conventions. On Monday, when I spoke about legal ethics and the torture memos at the Norwegian Centre for Human Rights in Oslo, the conversation turned to the importance of creating clear ethical frameworks as a means to avoid ethical breaches in times of emergency.
Asbjorn Rachlew, a Norwegian psychologist and criminologist based at the Centre, described a time when professional psychologists were asked to strategize about getting accused perpetrators to waive their right to remain silent. Like the 9/11 effect in the US leading to acceptance of torture and curbing of civil liberties, the Breivik shootings in Norway on July 22, 2011, created a feeling that some sort of psychological manipulation of accused perpetrators might be acceptable. It took an appeal to human rights standards, a fixed external framework, to remind the psychologists that individuals accused of crimes should not be manipulated into giving up their rights.
Knut Aspland, an anthropologist at the Norwegian Centre, noted that concerns about use of anthropological data to support torture caused the American Anthropological Association to take a stance condemning “the use of anthropological knowledge as an element of physical and psychological torture," building on the baseline ethical obligation of anthropologists to “do no harm.” Again, an ethical framework adopted in advance of an emergency worked to ensure that professionals understood their obligations to avoid human rights violations.
US lawyers are subject to extensive ethical codes that can be enforced through state bar structures. And the state bars and American Bar Association have often responded to ethics challenges by reforming these frameworks to ensure that they set a baseline for the future. Lawyer’s involvement in Watergate spurred reforms in legal training, with mandatory ethics classes and a separate ethics exam as part of law licensing. After the financial scandals of the 1990s, the ABA’s Model ethics rules were amended to require lawyers, under some circumstances, to report out their client’s wrongdoings to enforcement authorities.
ABA leaders roundly condemned the Torture Memos as a failure to meet professional obligations. But no reforms to the profession’s ethics frameworks followed. The organized bar has treated the Torture Memos as an instance of lawyers who fell short, not as a challenge to the ethics framework itself. An outside observer, noting that Jay Bybee is now a federal judge with life tenure and that John Yoo was recently appointed to a prestigious endowed professorship, would have good reason to question whether such failure is even deemed troubling by the profession.
However, there are lessons that the American Bar might learn from the Torture Memos saga that could be reflected in the Bar’s extensive ethics frameworks, to be drawn on in times of emergency. In particular, the ABA Model Rules of Professional Conduct nowhere mention protection of human rights as a professional ideal. In a legal system where the status of human rights is sometimes unclear, despite the Constitution’s Supremacy Clause, this omission matters.
As the Norwegian Centre discussants observed during our meeting, the Code of Conduct for European Lawyers explicitly notes the significant role of lawyers in “safeguarding human rights in the face of the power of the state.” And in Norway and other European countries, lawyers learn that international human rights law is part of their law and therefore implicitly incorporated into their ethics codes. Despite strong arguments to the contrary, human rights law has not gained the same level of acceptance in the US. Explicit references to human rights are needed here, even if they are not necessary in other legal ethics codes.
Interestingly, the ABA is taking tentative steps in this direction, but from a different angle. In June 2015, with co-sponsorship from the Norwegian government, the ABA Center for Human Rights was co-convener of a meeting in Geneva that examined the role of human rights in the rules of professional conduct of Bar Associations through the lens of business and human rights. While US ethics rules currently do not mention human rights in the context of business advice, the ABA Center is charting a path toward raising the issue in this arena.
The Torture Memos, however, have not gotten the same ethical traction. As with the reforms that followed Watergate and Enron, amending the bar’s ethics rules to explicitly acknowledge lawyers’ important role in safeguarding and protecting human rights would be a step toward establishing an ethical framework that will better serve the profession when the next emergency comes around.
Tuesday, January 19, 2016
In contrast to the bleak news reported yesterday, the U.S. Navy is continuing its proactive response to the needs of sexual assault survivors. The Navy is considering a fast track discharge process for personnel who have been sexually assaulted and apply to leave the Navy as a result. For those who remain in service, the Navy is developing a system that will prevent the alleged perpetrator and the survivor from being placed in the same command, even years after the incident that led to the allegations. Admiral John Richardson, Chief of Naval Operations, is sensitive to the situation where an alleged perpetrator might not be discharged, for example where there is no conviction. As reported on Military.com, Richardson said that the Navy is considering development of an app based on those in use on some college campuses that will make it easier to report sexual harassment or assault. "Such a tool would help remove stigma for survivors, making reporting data more accurate and possibly reducing stigma preventing male sexual assault victims from coming forward."
Monday, January 18, 2016
U.N. "Peacekeepers" stationed in the Central African Republic have been exposed for paying for sex with girls. The prices paid ranged from 50 cents to $3.00. Not surprisingly, the girls are part of a prostitution ring organized by boys and young men pimps, in this instance from M'poko, a camp for the internally displaced. The offending soldiers were from Gabon, Morocco, Burundi and France.
The Washington post reported the most recent news, but the UN learned of the behavior last summer. While the headlines typically read that U.N. Peacekeepers paid young, underage girls for sex, perhaps a better headline would be that UN Peacekeepers supported a local prostitution ring in the sexual abuse of young girls. I don't think that anyone will argue that the thirteen year old girls voluntarily participated as sex workers as a lifestyle choice. Their circumstances of being displaced, in addition to their sex and age, made them particularly vulnerable. Also last summer, Amnesty International reported the rape of a 12 year old girl by a U.N. Peacekeeper. After initially denying reports of sexual exploitation, the UN is now investigating.
The story of the Peacekeeper exploitation was reported by Human Rights Watch in August. As Sarah Taylor reported, the UN at last may be shifting the way it views sexual abuse and exploitation, which has been reported in many countries in addition to CAR. Rather than consider these actions as conduct offenses, the UN, according to a report issued by the Secretary General, is encouraged to view this abuse as conflict-related sexual violence. In September, Secretary General Ban Ki-moon announced several initiatives including banning anyone with a history of sexual violence from serving with the UN.
The UN and other military authorities avoid, however, the central issue of why sexual abuse and exploitation is not the first issue addressed whenever troops are deployed. Crimes of sexual abuse against women and children is a documented reality around the world, but particularly for areas of conflict. Before the UN, or any individual country, sends troops to protect elections or assist refugees, the first mission might be to safeguard the residents from abuse, particularly sexual violence. Other missions are secondary.