Tuesday, October 13, 2015

Charitable Contributions: Helping the Rich without Helping the Poor

Prof. Fran Quigley has written a fascinating analysis of the effectiveness of the U.S. Tax Code's charitable contributions deduction and whether the poor benefit from the  current scheme.  The answer is no.   The charitable deduction is largely used by the very wealthy to endow college buildings, art donations and other "charitable" acts that benefit the already well off.  Individuals who lack resources receive little to no benefit from charitable contributions as they are currently structured.  The article, For Goodness’ Sake: A Two-Part Proposal for Remedying the U.S. Charity/Justice Imbalance is scheduled to be published by Virginia Journal of Social Policy and the Law  and can be read here.  The abstract reads as follows:

"The U.S. approach to addressing economic and social needs strongly favors individual and corporate charity over the establishment and enforcement of economic and social rights. This charity/justice imbalance has a severely negative impact on the nation’s poor, who despite the overall U.S. wealth struggle with inadequate access to healthcare, housing, and nutrition. This article suggests a two-part approach for remedying the charity/justice imbalance in the U.S.: First, the U.S. should eliminate the charitable tax deduction, a policy creation that does not effectively address economic and social needs, forces an inequitable poverty relief and tax burden on the middle class, and lulls the nation into a false sense of complacency about its poverty crisis. Second, the U.S. should replace the deduction with ratification of the International Covenant on Economic, Social and Cultural Rights. This two-part process would reverse the U.S. legacy of avoiding enforceable commitments to economic and social rights. Charity would take a step back; justice a step forward."

October 13, 2015 in Fran Quigley, Margaret Drew, Poor | Permalink | Comments (0)

Monday, October 12, 2015

A Holiday for the 21st Century

by Martha F. Davis

St. Paul, Minneapolis, Seattle and most recently, Portland, Oregon, have abandoned Columbus Day in favor of Indigenous People's Day.  We all like a holiday, but whatever purpose Columbus Day served in the past, in the 21st century, it seems to glorify acts leading to the genocide of Native Americans.  We need a holiday in October -- at least I do -- but we need one that rests on a more balanced account of history.

Along the same lines, on Saturday, October 11, Governor Jerry Brown signed legislation barring California public schools from using the name "Redskins" for their mascots or sports teams.  Not Your Mascots, an organization opposing Native American "mascotry," has worked hard for this, along with others.  The eve of Indigenous People's Day was a symbolically freighted time to sign the bill.  With ducks, gophers, sharks, beavers, maroons, and more, all available as appropriate mascots, there's no reason to perpetuate one that many people legitimately find offensive.

Retiring these outmoded relics of past times is not abandoning or rewriting history.  We can't do that, and what's done is done with both Columbus Day and school mascots.  Rather, Governor Brown, and the cities of Seattle, St. Paul and others are ending one tradition and starting a new one, staking out a new path that is right for the 21st century.

October 12, 2015 | Permalink | Comments (0)

Friday, October 9, 2015

"The World Bank is a Human Rights-Free Zone," Says UN Special Rapporteur

Philip Alston, the UN Special Rapporteur on Extreme Poverty, recently released a report analyzing the World Bank's "confusing" treatment of human rights, and arguing for a new approach.  The strongly worded document charges that "in its operational policies, in particular, [the World Bank] treats human rights more like an infectious disease than universal values and obligations."   The Special Rapporteur urges that the Bank President initiate a transparent process for developing a coherent human rights approach that incorporates economic, social and cultural rights.  The Special Rapporteur's report will be presented to the UN General Assembly on October 23.

This report builds on previous efforts by Alston and other UN human rights experts, and NGOs.  In 2014, Alston addressed the issue head-on in a keynote address to the Nordic Trust Fund and in a Washington Post op ed.  Likewise, NGOs such as Human Rights Watch submitted commentary to the World Bank during its consideration of a new Environmental and Social Framework, urging it to be explicit in addressing human rights.

On September 30, the Tom Lantos Human Rights Commission highlighted the issue in a hearing on international financial institutions and human rights, at which Philip Alston testified.

The UN reports that Alston will "spend the next few weeks talking to the World Bank and its member states about his recommendations, before the official presentation of his report to the UN General Assembly in New York" -- a positive sign after the World Bank President declined to meet with Alston in March.



October 9, 2015 | Permalink | Comments (0)

Thursday, October 8, 2015

Is the Age of Human Rights Over?


Professor Makau W. Matua of SUNY Buffalo has posted a provocative paper titled "Is the Age of Human Rights Over." The paper is available for download on SSRN here.  The abstract is below:



70 years after the UDHR -- and the launch of the human rights movement -- there are signs that the Age of Human Rights is over. This piece interrogates the deficits and normative gaps of the human rights text, and concludes that the golden age of human rights is over. Human rights no longer have the power to provoke deep-seated moral and legal outrage. The consequence is that untold human catastrophes barely register global action, let alone condemnation. While human rights have been a phenomenal success -- perhaps more than any other moral language of our time -- they have lost the ability to coalesce action. Unfortunately, no new discourses have emerged to take the place of human rights. What is needed is a new moral language to fill the vacuum left by human rights.

October 8, 2015 | Permalink | Comments (0)

Wednesday, October 7, 2015

Getting Real on Sexual Assault


Guest Author Prof. Margo Lindauer contributes the following discussion on sexual violence:

Are we ready to have a real conversation about sexual assault? The Harvard Crimson reported on September 19, 2015 that more than twenty nine percent of surveyed Harvard senior women experienced unwanted touching or penetration. Coupled with the recent guilty finding of Owen Labrie from St. Paul’s School, sexual assault on elite campuses is now front-page news. Are we ready to really talk?

 Much of the response to both the guilty finding and survey has been to slice and dice. Innumerable articles have been written about Owen Labrie with one headline announcing that he was found not guilty of felony sexual assault. There have been few, if any, written with a headline of how he was found guilty of three counts of statutory rape, which happens to be a misdemeanor in New Hampshire (but not in all states) and a felony count of using a computer to entice a minor.  A jury found Labrie guilty of serious crimes.

 Hundreds of comments appear in the Crimson report. In addition comments abound regarding a NY Times Article reporting on the survey on sexual assault on campuses commissioned by the Association of American Universities (NY Times, September 22, 2015). The article discusses the faults in the survey procurement. Many of the comments begin with “I am a feminist, but…”, or are a plea to disregard the data because of what some claim to be ambiguous language in the questions asked. Is this another way of trying to see a certain reality?

Critics suggest that the survey respondents were self-selecting, which potentially skewed the reporting towards a higher percentage of affirmative responses. Even if the actual statistic of assualted Harvard women was ¼ as opposed to nearly 1/3, would that make the issue less compelling? Would we be relieved of an obligation to find a solution? To be specific, sixteen percent of women surveyed at Harvard reported penetration without their consent during the time that they were in school. As a society, we have decided that no one deserves to be hit, punched or otherwise assaulted by anyone, including an intimate partner. But why are we reluctant to hold perpetrators of sexual violence accountable?

 The secrecy and acceptance of the unspeakable has gone on unchecked for centuries. The structures of privilege and power on campuses have silenced women and men . Further, our culture seems to have accepted the reality of older boys and men preying on younger women. The notion that men make aggressive sexual advances is assumed to be  an accepted reality. But this survey and Labrie’s guilty finding give us the opportunity to change our reality.

Much of the response by educational institutions has been to change the structure of their reporting and service protocol. While that is an important step, let’s make our goals loftier. With an increased understanding of the historical practices that allow and support violent behavior, we now are able to change the dialogue. Let us talk and create a new normal where we not only provide services and support for individuals who survive sexual assault, but we educate all individuals so that sex or force touching is not acceptable, is criminal and no longer the norm.

To change the conversation, we must start one early.

Learning about healthy relationships and risk factors for domestic and sexual violence must be mandatory in middle schools. There is now evidence that there is a direct correlation between bullying in school settings with school-aged children and exposure to domestic violence in the home. Further, those who experience or perpetrate bullying as young children with no resolution may learn to normalize and mimic similar behaviors later in life. We must develop curriculum that is age appropriate at the middle school, high school and university levels that teach and talk about healthy relationships, the notion of power and control, risk factors for violence and trends in dating violence such as the current conundrum of online abuse. Educators in middle, high schools and in university settings must be given training, support and resources to be able to identify warning signs, talk about the issues safely and refer students to appropriate resources found through up-to-date, accessible and geographically relevant information. And finally, universities must institute polices related to affirmative consent.  Though hotly debated, affirmative consent is a useful tool, particularly on university campuses where much of the socializing inevitably occurs under the haze of alcohol and darkness. Let’s talk about it, learn about it, and feed students with information about their rights and what is healthy dating. Let us not allow perpetrators to normalize abusive behaviors. We must establish protocol within institutions in order to hold perpetrators accountable. And let us support survivors to find safety and give assurance that they are believed.




October 7, 2015 in Gender, Harassment | Permalink | Comments (0)

Tuesday, October 6, 2015

The Problem with Guns is Not So Much The Guns

I began writing this post in August, after what was then the latest gun massacre.  I finish writing this post after the Oregon murders.  Our culture is way out of balance.  We are allowing the most hateful voices in the country to dictate dangerous policies.  Europeans and others do not understand our gun attachment.  Frankly, neither do I.  I am guessing if the founding fathers engaged in the gun debate today, they would be horrified to see the uncontrolled slaughter that we encourage through the sale of assault weapons. 

Sarah Gassen observed: "Gun violence isn’t only about owning weapons. Violent roots are deep in an American culture that mistakes using violence for problem solving. Popular entertainment connects manhood and strength to firepower. Bad guys have guns, so good guys need bigger guns. We accept murder as a byproduct of our belief that we’re right."

Journalists  and  wrote "Some cultural messages suggest to men that violence enhances their status." Likewise, “for people who feel powerless, getting a gun is seen as a way to suddenly have that power,” says Peter Langman, an author on school shootings who offers a wide array of research and resources online.  The common denominator of many mass murderers, they write, is a warped view of masculinity.

The second amendment is problematic in both the drafting and interpretation. Both lack gender balance.  The feminine is unrepresented or underrepresented in this discussion.  I can support citizens having some right to gun ownership but I also believe that easy access to both the purchase of weapons, and in particular the purchase of weapons designed to cause mass destruction, is unnecessary as well as harmful. An interpretation of a constitution in which half of the population had no input is unbalanced.  No greater example is had of that imbalance than second amendment interpretations.  If a Supreme Court staffed with mothers had written second amendment decisions for the past two hundred years, I suspect that the interpretation would be different.

Left unexplored is the connection between other types of violence and mass murderers.  The connection between domestic violence and mass murder is insufficiently discussed, if at all, when the TV "experts" deconstruct each sad occurrence. Child abuse is barely mentioned as part of the formula for creating violent men.  

We live in a culture that focuses boys and adult males on externalizations to define which characteristics makes them "men".  Weapons, sports, and money take a front row in that cultural definition, as does dominance over women.  Media offers neither boys nor girls realistic and non-judgmental gender images.  Toys R Us has already defined which toys girls and boys should play with by conveniently marking aisles with pink or blue coloring. Peers who have been been raised with rigid gender role identification bully those who choose a different path.  Mental illness remains hidden and mental health services lack necessary substance because of insurance limitations. This culture has to change.

Focusing on changing culture does not relieve us of our obligation to take immediate steps to make communities safer, for example by banning assault weapons and shutting down whatever avenues of gun purchase are available without background checks. What will have long term impact is for each of us to take responsibility to do all that is  necessary to have boys and men feel better about themselves and eliminate the impetus to harm others.






October 6, 2015 in Margaret Drew | Permalink | Comments (0)

Monday, October 5, 2015

The Four Freedoms and Human Rights Education

Early bird registration ends on October 15 for the Sixth International Human Rights Education Conference, this year hosted on December 17-19, 2015, by The University College Roosevelt (UCR) and Human Rights Education Associates (HREA) in Middelburg, the Netherlands.

Here in the U.S., we think of the Roosevelts as quintessentially American, but the Dutch also claim the Roosevelt family!  The Roosevelt Study Center in Middleburg, which hosts scholars of US-European relations, is one example.  Among other things, the Center is co-sponsor of the annual Four Freedoms awards, honoring global heroes that exemplify Franklin Roosevelt's vision.  In September 2015, the Freedom Medal was awarded in New York to Justice Ruth Bader Ginsburg, and next year, the awards will be delivered in Middelburg.  University College Roosevelt, a liberal arts college in Middelburg that aims to inspire its students to be global citizens, is another manifestation of this Dutch-Roosevelt connection, underscoring Franklin and Eleanor Roosevelt's influence far beyond US borders. 

According to the conference website:  "Deeply inspired by Roosevelt’s speech on the Four Freedoms, the University College Roosevelt and HREA invite you to participate in this exciting event and reflect on how the Four Freedoms can be translated to today’s world. The conference will join together as many people working in the field of human rights as possible, with some focus on the UN and the UN World Programme for Human Rights Education. This conference, being the sixth annual edition, will continue to encourage a forum for the exchange of ideas and information and facilitate open discussion on Human Rights Education amongst participants."  More information about the conference is available here.

October 5, 2015 | Permalink | Comments (0)

Friday, October 2, 2015

It’s Official – The U.S. is Alone on Avoiding Children’s Rights

Jonathan Todres

On October 1st, Somalia officially ratified the Convention on the Rights of the Child (CRC). Now every country in the world has ratified the CRC … except the United States. The United States had as much influence on the text of the CRC as any country – during the drafting of the treaty, the United States submitted proposals and revisions on 38 of the 40 substantive provisions of the treaty.  Rights to freedom of speech and freedom of religion are included in the CRC because the U.S. government insisted on it. A review of all treaty provisions reveals that the CRC and U.S. law are largely compatible. Yet the United States remains the only country that resists the idea of accepting obligations to ensure the rights and well-being of every child subject to its jurisdiction.


Since the Convention on the Rights of Persons with Disabilities failed to achieve a two-thirds vote in the Senate in December 2012, the prospects of U.S. ratification of any human rights treaty haven’t seemed great.  But progress on the CRC is entirely in the hands of the Obama Administration. The treaty has yet to be forwarded by the President to the Senate.

 It’s time. While people might debate the negative consequences of reservations, understandings, and declarations (RUDs), the availability of RUDs negates any argument that issue X or issue Y is a barrier to ratification.  The Obama Administration has an opportunity to move the CRC forward, and in doing so not only join the rest of the world but also show U.S. parents and children that the government cares about the rights and well-being of children.

October 2, 2015 in Children, Jonathan Todres, Juveniles | Permalink | Comments (0)

When a Clock is Only a Clock: Dismantling the School-to-Prison Pipeline

Fourteen-year-old Ahmed Mohamed captured the attention of the public in September when he was arrested during his first weeks at MacArthur High School in Irving, Texas, for bringing a homemade clock to school to show his engineering teacher.  This simple act qualified as a “hoax or perceived threat” under the school district’s codes of conduct, and even after it was established that the clock was merely a clock (despite the wires and exposed circuits), police removed Ahmed from the classroom, placed him in handcuffs, and suspended him for three days. 
Ahmed is tall and thin with brown skin and glasses.  His family is Muslim and they immigrated from Somali.  Ahmed frequently brought his homemade inventions to Sam Houston Middle School where he was a member of the robotics club.  Apparently, the clock incident was not his first brush with the school disciplinary regime.  In sixth grade, Ahmed reportedly had been suspended for blowing bubbles in the bathroom with another student; on another occasion, he unsuccessfully invoked the First Amendment when faced with detention for speaking out in class; and in a third incident, after being suspended for a hallway fight, a suspension was overturned after he told the principal that he had acted in self-defense when a larger boy had choked him.
In other words, Ahmed appears not only to be a natural advocate but a young man who is comfortable with and adept at speaking up for himself – despite the draconian disciplinary policies found in many public schools in the U.S. 
It is not a coincidence that administrators at the Texas secondary schools that Ahmed attended turned reflexively to punitive measures when confronted by typical adolescent misbehavior.  A recent study by Texas A&M University found that thirty percent of Texas students in grades seven through twelve have received out-of-school suspensions, while fifteen percent were either permanently expelled or suspended more than ten times. 
In fact, schools in the Irving Independent School District share all three of the principal risk factors for the school-to-prison pipeline: they underperform on high stakes testing, providing a built-in incentive to push out low-performing students; they are underfunded, leading to overcrowded classrooms and little or no support staff for struggling students and their families, such as counselors, social workers, psychologists, and nurses; and they adhere to zero tolerance policies in which minor acts of “insubordination” and “defiance” result in long-term suspension and prosecution in juvenile court.  Further, whether the result of explicit or implicit racial and ethnic bias, schools most likely to serve as feeders into the pipeline are those with fifty percent or more students of color and/or high percentages of ESL students, like those attended by Ahmed.  
At the end of September, U.S. Education Secretary Arne Duncan announced plans to reduce incarceration for nonviolent offenses and to reform school discipline policies.  He acknowledged that in the past three decades, U.S. spending on state and local corrections has increased almost twice as fast as spending on elementary and secondary education.  He acknowledged that U.S. schools suspend approximately 3.5 million students each year and refer one quarter of a million to the police.  And he acknowledged that these statistics are even more extreme for children of color and students with disabilities. 
Although Secretary Duncan’s proposals to expand opportunities for quality preschool, increase teacher salaries, and provide Pell “second chance” grants to those who are incarcerated are admirable and worthy of effort, they will do little to bring about fundamental change to the punitive climate that predominates in our public schools.       
The reality is that the social safety net in the U.S. is broken and that the court system – particularly the juvenile court system – now serves as the only viable source of government-funded welfare for children and families living on the economic margins.  When a low-income family with a troubled child needs assistance, they can no longer find it in the community, whether at school or at a neighborhood health clinic; instead, they are referred to law enforcement in the form of school resource officers or juvenile court probation officers.   It is only via these punitive systems that struggling children and their families have any meaningful chance to get the help they so desperately need. 
The short-term solutions must extend beyond increasing teacher pay and acknowledging implicit bias and racism.  Armed security personnel are present in three out of four U.S. high schools and in the vast majority of schools that have over one thousand students; the federal government must provide incentives to dramatically decrease their presence.  There should be incentives for schools to end zero tolerance policies and to prohibit school resource officers from overseeing routine disciplinary issues.  Further, all school employees should receive training in basic adolescent development as well as mediation, conflict resolution, and restorative justice practices, which have been shown to address disciplinary problems more effectively than detention, suspension, or court referral. 
Ahmed’s future looks bright.  His family has withdrawn him from the Irving Independent School District, and he has invitations to visit President Obama and Mark Zuckerberg.  Meanwhile, however, the millions of other students across the U.S. whose typical adolescent behavior is regularly criminalized have few, if any, options.  We must wait no longer to implement policies that meet their needs without pushing them out of schools and into prisons.        

October 2, 2015 in Education, Juveniles, Tamar Birckhead | Permalink | Comments (0)

Thursday, October 1, 2015

The Court and The World


by Jeremiah Ho

If what Justice Stephen Breyer claims is true, that “[j]udges are inevitably creatures of their times,” then the question a reader might pose while reading his latest book—The Court and the World: American Law and the New Global Realities (Alfred A. Knopf, 2015, 382 pages)—is what he thinks of the current political climate in which American law is advancing.  In response, an answer he would likely offer might observe how our world and time is yielding to an interdependence between foreign actors and activities into our national life and laws, and the influence of our own domestic legal problems and solutions worldwide.

From national security issues to copyright, from the Alien Tort Statute to treaty powers, Justice Breyer reveals how the Supreme Court has adapted to such interdependence—a word that is more precise than the generic “globalization” in describing not just an awareness of international legal and political issues that come into our legal system or is affected by the rulings and legislation that our government promulgate, but also an active stance on co-existing for the sake of comity and international harmony. 


This is a book about relevance more than it is about a particular methodology of interpreting the Constitution in light of interdependence.  Devoid of commentary toward his originalist colleagues on the Supreme Court bench, Breyer demonstrates a philosophy of interpreting the Constitution’s meaning that takes into account how the world is changing.  Erudite in fashion and yet accessible to the general public, Breyer discusses the various solutions that the American judiciary has developed to advance justice and the rule of law while understanding the American presence on the international stage in not absolute.  Whether it is in the realm of human rights, securities regulation, international commerce, or something else, what Breyer ultimately indicates is that, although the Constitution is domestically supreme, there is always some give-and-take when American judges are rendering rulings that might have affect and influence elsewhere in the world.  Judges must be aware of how international law works.    

 Whether intentional or not, the book seems to read as a graduate seminar of sorts.  For instance, in the series of chapters that deal with the Court’s reaction to wartime Presidential powers upon individual rights, the reader walks with Breyer through historical case illustrations and constitutional doctrines—starting with an initial reluctance by the Court in the 18th and 19th centuries to limit the President from curtailing rights of individuals during times of threat to national security and ending with the Court’s current and still-evolving attention to balancing individual rights and the Presidential wartime powers in the face of threats to national security.  Examples from the Lincoln presidency and cases such as Ex parte Milligan, Curtiss-Wright, Korematsu, and Steel Seizure all build a historical foundation for discussion of the Guantanamo cases.  In a later part of the book, Breyer recounts the problem of judicial efficiency in India and discusses the ongoing exchange of ideas between American judges and their Indian counterparts in experimentations with alternative dispute resolution and other permutations in judicial procedure to alleviate the backlog of cases in India courts.  The significance of this import has had both utilitarian implications for India and shed important theoretical questions about justice systems internationally.         

If Breyer is right that the world is changing in a way that is increasingly interdependent, then his book, The Court and the World, offers a rich take on the complex role that the judges have in advancing the modern rule of law. 

October 1, 2015 in Jeremiah Ho | Permalink | Comments (0)

Wednesday, September 30, 2015

Save the Date: October 22nd - Advancing U.S. Social Justice Through Human Rights

On October 22nd, the Columbia Law School Human Rights Institute will celebrate the 15th anniversary of the Bringing Human Rights Home (BHRH) Lawyers’ Network with an event entitled Advancing U.S. Social Justice Through Human Rights

The BHRH Lawyers’ Network connects over 800 lawyers from the domestic civil rights, human rights, and legal services communities to share information and develop strategies for integrating human rights to advance U.S. social justice advocacy.  

The October 22nd celebration will feature a keynote address by Caroline Bettinger-López, the White House Advisor on Violence Against Women and the director (on leave) of the University of Miami School of Law’s Human Rights Clinic.  Following the keynote address, the Institute will host a panel of prominent academics and advocates drawn from the BHRH Network membership discussing issues including national security, racial justice, movement building, homelessness and housing, working with legal services and human rights litigation. Experts will reflect on how a human rights framework has made a difference in advancing domestic social justice advocacy efforts over the past 15 years, ways in which the field has grown and shifted, and lessons learned from both successful and unsuccessful efforts to integrate human rights at home.  An evening reception will follow the day’s events.

In addition to the October 22 celebration, this fall the Institute is hosting a series of talks focusing on human rights in the United States.  Included in this series is Vincent Warren, executive director of the Center for Constitutional Rights (Oct. 7); Larry Cox, co-director of Kairos: The Center on Religions, Rights and Social Justice, and former executive director of Amnesty International USA (October 13); and Katrina Anderson, senior human rights counsel at the Center for Reproductive Rights.   More information about the October 22nd event and speaker series can be found here.  To RSVP for the October 22nd event, contact Greta Moseson at gmoses@columbia.law.edu.

September 30, 2015 | Permalink | Comments (0)

Tuesday, September 29, 2015

Open Access: Refugee Scholarship and Resources

In response to the refugee crisis in Europe, Oxford University Press has made more than 30 book chapters, journal articles, and pieces of content from online resources freely accessible to assist those working with refugees on the ground, as well as anyone who would like to know more about the framework of rights and obligations concerning refugees. Find out more here

September 29, 2015 | Permalink | Comments (0)

Monday, September 28, 2015

Save the Date: Judge Rosemary Barkett Speaks on Bringing Human Rights Home

The 2015 James Madison Lecture at NYU Law will be presented by the Honorable Rosemary Barkett, Judge Iran - United States Claims Tribunal, The Hague, former United States Circuit Judge of the United States Court of Appeals for the Eleventh Circuit.  Her lecture is titled "Bringing Human Rights Home? I Thought They Were Already Here."  The lecture will be held on October 22 at 6 p.m.  More details are available here.

According to the NYU Law website, the Madison Lectures are the most important lecture series at the NYU School of Law. Begun in 1960, the lectures are designed to enhance the appreciation of civil liberty and strengthen the sense of national purpose.  It is certainly a measure of progress that "human rights" is the topic of this year's lecture.

Past NYU lectures on "human rights at home" have had tremendous reach.  A particular example is the Brennan Lecture on State Courts and Social Justice delivered by Massachusetts Chief Justice Margaret Marshall in 2004, titled "'Wise Parents do not Hesitate to Learn from their Children': Interpreting State Constitutions in the Age of Global Jurisprudence." 

Like Chief Justice Marshall's Brennan Lecture, Judge Barkett's Madison lecture will be published and will, we anticipate, continue to deepen the national conversation on human rights in the U.S. 

September 28, 2015 | Permalink | Comments (0)

Ferguson Report's Call To Change

 Image result for images for brian gilmore michigan state
Guest author Prof. Brian Gilmore contributes this commentary on the Ferguson Report:

The recently released Ferguson Commission report lays down a challenge to a nation torn apart by revelations of police abuse.

Missouri Gov. Jay Nixon created the commission last year in response to the fatal police shooting of Michael Brown, though the authors of the report note that they were not charged with investigating his death.

 Through “open community meetings across the region” and after talking with researchers, scholars, clergy, legislators and civic leaders, the commission has produced a report that is comprehensive and potentially transformative.

“We are not even suggesting that institutions or existing systems intend to be racist,” the commission states. “We are pointing out … that the data suggests, time and again, that our institutions and existing systems are not equal, and that this has racial repercussions.”

There are 189 policy recommendations in a portion the report describes as a “call to action.” There are a few that especially stand out.

First, and most importantly, the commission calls for comprehensive police reform. This includes more and better training for officers and the creation of a database on the use of force — all with the goal of decreasing violent confrontations.

Second, the commission takes mass incarceration head-on and presses for criminal justice reform. It urges an immediate change in sentencing laws and the elimination of incarceration altogether for some minor offenses. It pushes the police and prosecutors to change processes that include disregard of the fundamental rights of those accused of crimes. And it calls for the creation of community justice systems designed to address problems in a different way.

Third, the commission asks for a special effort to do more for the youth. It suggests better education and nutrition for young people, improved health outcomes, the reform of school disciplinary policies and practices, and more investment in early childhood education.

These recommendations are crucially important. An unarmed black person is twice as likely to be killed by a police officer as a white individual. The United States contains 25 percent of the world’s prisoners, even though the country only makes up 5 percent of the world’s population. The unemployment rate for black youth is 20.7 percent, according to the latest numbers. Young people of color face daily challenges.

There have been other significant reports in the past that have documented racial injustice and proposed constructive responses, but they have been largely ignored. Let’s not make the mistake of dismissing the Ferguson Commission report, which provides a blueprint for reform across the nation.

Editor's note: Prof. Gilmore wrote this piece for the Progressive Media Project and it first appeared in the Bangor Dailey News

September 28, 2015 in Equality, Race | Permalink | Comments (0)

Friday, September 25, 2015

Scrutinizing US Resistance to CEDAW

Why is the US among a small handful of countries that has not ratified CEDAW?  At this summer's meeting of the American Political Science Association (APSA), the winner of the Victoria Schuck award for best book on women and politics was Defying Convention: U.S. Resistance to the U.N. Treaty on Women's Rights, by Lisa Baldez.  In making the award, the APSA called the US failure to ratify the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) a "neglected puzzle" and praised Baldez for laying out clearly "what is at stake and the consequences of non-ratification for women in the U.S. and women around the world." Feminist historian Eileen Boris has posted a review here

For the time being the United States is holding company with Iran, Somalia, Sudan, and two small Pacific Island nations (Palau and Tonga) which have also failed to ratify CEDAW.  However, US cities are moving ahead, getting the job done despite federal inaction.  In the past few weeks, both Santa Monica, California and Miami-Dade County, Florida, adopted the principles of CEDAW.  More cities -- Honolulu?  Washington, D.C.? -- are in the pipeline.  At some point, federal representatives will see which way the wind is blowing.  Maybe by then, they will realize that their failure to act isn't a show of federal strength, but an act that weakens the country.

September 25, 2015 | Permalink | Comments (0)

Thursday, September 24, 2015

Breaking News

Risa Kaufman sends us the following:
Today in Geneva, the United States appeared before the UN Human Rights Council to formally accept (and reject) the 343 recommendations that resulted from its 2nd Universal Periodic Review in May 2015.  
You can view the archived webcast here.
The US UPR report and recommendations are found here.  The U.S.'s written responses are found here

September 24, 2015 in Risa Kaufman | Permalink | Comments (0)

Mandela’s Legacy and Solitary Confinement: From Robben Island to… A Prison Near You?

By JoAnn Kamuf Ward, Associate Director, Human Rights in the U.S. Project, Columbia Law School Human Rights Institute;  Lecturer-in-Law, Columbia Law School

Nelson Mandela is known in South Africa as “Madiba”, a clan name that evokes intimacy, despite his status as a larger than life activist and national leader.  As a statesman, he was soft-spoken yet firm.  Photographs often showed him donning his signature smile.  These portrayals of Mandela belie the personal suffering and strife he experienced as a young leader of the ANC.  Mandela spent 27 years in prison for leading efforts to dismantle apartheid, 18 of them in a single cell on Robben Island, measuring a 7 feet by 9 feet.  Like many deprived of their liberty, Mandela did forced labor, lived in squalor, suffered through demeaning slurs, and was denied the most basic human dignities.   Being forced to work in intense heat caused Mandela’s “snow blindness,” damaging his vision irreparably.  

But it was the final years of incarceration that most challenged Mandela’s resolve.  In 1982, he was transferred to a prison on mainland South Africa, where he was subjected to prolonged isolation.   As he later recalled it was solitary confinement that was “the most forbidding aspect of prison life. There is no end and no beginning….One begins to question everything.”  So, perhaps it is not surprising that Mandela’s legacy includes the potential for reform of solitary conditions prisons around the world, including in the U.S.  

Since 2012 there has been an ongoing international effort to develop practical guidance on how governments can improve prison conditions, known as the Mandela Rules.  In May, in an important step forward, the Vienna Crime Commission approved the rules.  The Mandela Rules offer a much needed update to The Standard Minimum Rules for the Treatment of Prisoners, developed in Geneva in 1955 – long before our current epidemic of mass incarceration and the general proliferation of solitary confinement across the United States.

The 2015 Mandela Rules have been heralded as “one of the most significant human rights advances in recent years.”  This is strong praise to be sure, as the Mandela Rules were the result of years of intergovernmental negotiation.  Yet, there is much to commend the new standards. For starters, the Rules operate from the premise that prisoners should be treated with basic dignity, a fundamental paradigm shift for most US prisons.   The rules also reflect the fact that torture and cruel, inhuman or degrading treatment and punishment are realities in prisons.  The Rules call for staff to be trained on how to treat prisoners humanely AND state that allegations of torture and CIDT should result in an investigation by an independent national authority.

The Mandela Rules also delve into specifics of how to treat prisoners with dignity, including strict limitations on the use of solitary confinement.  According to the Rules, solitary should be used “only in exceptional cases as a last resort for as short a time as possible and subject to independent review.”  There is also a blanket prohibition on the use of solitary for more than 15 consecutive days.  Further, solitary is prohibited where it would exacerbate the condition of a prisoner with mental or physical disability or where women and children are involved.   

A number of the 122 rules echo calls by US rights advocates, including in the arena of education and rights of women.  Rule 104 calls for education and training in prison, and for education of youth to be compulsory.  Rule 48 expressly prohibits the shackling of pregnant women during labor (which the NY Times reported on this week). The Mandela Rules also reflect recommendations from UN experts, including members of the Committee Against Torture, and the U.N. Special Rapporteur on Torture, Juan Mendez.  During the 2010 UPR, the United States also received a recommendation to ensure human rights protections in US prisons, including maximum security prisons (Rec 177, which the US accepted).

While the Mandela Rules resulted from years of government negotiation, US groups, especially the ACLU, were deeply involved in the revision of the Rules, alongside international groups coordinated by Penal Reform International, and Juan Mendez, the UN Special Rapporteur on Torture.   By engaging with the reform process, civil society groups and human rights experts were able to inform the outcomes.  One last hurdle remains before the Rules are final:  formal adoption by the UN General Assembly later this year.

Of course, even when adopted, the Mandela Rules will be soft law.  As a non-binding framework for prison reform, the challenge in the U.S., and around the world, will be implementation.   But there is already evidence that the Rules won’t just remain on the shelf.  The United States has supported adoption of the rules, and included corrections officials from Washington and Colorado on its delegation to negotiate the Rules.  Both states have worked to reduce the use of solitary and have discussed their own efforts to improve prison conditions, including reducing solitary, throughout the development of the Rules.    

The Mandela Rules offer specific, practical standards to bolster reform of U.S. federal, state, and local prisons.  In the context of a renewed focus on solitary by the Obama Administration and the September settlement putting an end to the use of indefinite solitary at Pelican Bay, the Mandela Rules offer another tool in the struggle to eradicate solitary confinement.  Human rights advocates will play a key role in publicizing the Rules and underscoring their relevance to prison administrators.     

September 24, 2015 in JoAnn Kamuf Ward, Prisons | Permalink | Comments (0)

Wednesday, September 23, 2015

The Next Generation and Human Rights Education

Recently, the local public international school in Lund, Sweden (where I am spending the year as a Fulbright scholar) invited me to speak on the topic of "what are human rights."  My audience consisted of a group of twenty-five 5th graders from Sweden, the UK, Canada, Pakistan, India, the US, China, Iran and no doubt other places, too. 

I have to say, I was impressed.  The kids have been going through the Universal Declaration of Human Rights provision-by-provision.  They are up to Article 12, and they were very knowledgeable about the origins of the document and why human rights are important.  They even knew the difference between a declaration and a treaty!

However, then we started to talk about practical application of human rights.  And because it's been in the news in the US, I brought up the issue of women in military combat positions.  I assumed that, understanding equality issues, they would immediately see that anyone who is qualified should be permitted to serve.  And there was, in fact, one lonely student who articulated that view.  But the rest who spoke (both boys and some girls) were adamant that women need to stay home and, as one Swedish boy said, "take care of babies and clean the house."

So here's where the rubber meets the road.  Even in a country that values gender equality and in a school that takes human rights education seriously, 10-year-olds can't get beyond women as caregivers.  Of course, at age 10, the kids' views on equality may be colored by deep fears that their own moms could come to harm and they'd be left to fend for themselves.  But I'm afraid that these understandable fears for a 10 year old may form the foundation for rigid gender views in adulthood. 

In short, human rights education in the early grades is critical and wonderful, but standing alone, it's all academic.  Kids need real-world role models and examples of gender equality in movies and other media from an early age (certainly before age 10) in order to truly understand that both men and women can "take care of babies and clean the house," or not.



September 23, 2015 | Permalink | Comments (0)

Tuesday, September 22, 2015

Is Grocery Shopping Supporting Labor Trafficking?

The next time you sit down to dinner, will you wonder if the food you are eating was produced as a result of U.S. labor trafficking? Consumers often are unwitting supporters of labor traffickers.

This summer the Ohio chicken industry was the focus of a labor trafficking raid.  In July, a chicken farm in Marion, Ohio was raided and ten individuals were found to be living in deplorable conditions and working without pay.  The Guatemalan natives, eight minor teens, one only 14 years old, and two adults were smuggled into the U.S. by two traffickers, one Guatemalan and one Mexican man.  As is typical, the workers were brought into the U.S. with promises of work for pay.  The traffickers kept the workers' pay and used threats of physical harm to keep the workers silent.  The company, Trillium Farms, reported to have cooperated in planning the raid with the FBI, stated that it used outside labor contractors and was not aware that the workers were trafficked.  The two traffickers pleaded guilty to various crimes. The employer, Trillium Farms, has not been charged.

Trillium claims to be the largest egg farm corporation in the Ohio.  The company regularly advertises for work and directs applicants to its Human Resources department.  Reliance upon third parties to secure workers is not unusual in any industry, however.  In labor intensive ones, employers may use contractors as a way of avoiding liability for employing undocumented workers, but the scheme also permits slave trafficking to flourish.  Simply being unaware that employees are trafficked cannot be an acceptable defense.  When a company is unaware, that usually means that there is combination of lack of human trafficking training as a priority for all employees, and a "hands off" policy in terms of middle management interaction with those whom the contractors bring to work.

What we have not heard from Trillium is how the company will ensure that traffickers are not engaged in the future.

According to a government report issued this summer, only 15% of global trafficking convictions in 2014 involved labor trafficking.  Yet it is estimated that non-sex labor trafficking schemes far outweigh the number of sex trafficking ones in the number of individuals trafficked.  Something has to change in government's approach to prosecuting and ending labor trafficking.  A good beginning might be for U.S. corporations to be held strictly liable for the use of trafficked workers.  Corporate liability, along with the resulting publicity, might ensure hiring and supervision policies that effectively eliminate trafficked workers.  

Mitigating factors might be affirmative efforts by employers who discover trafficking to work with the government to free the individuals.  In addition, and more importantly to the workers, would be for the employers to provide employment and to obtain housing, documented status and other supports to those workers discovered to be slaves.  






September 22, 2015 in Margaret Drew, Trafficking | Permalink | Comments (0)

Monday, September 21, 2015

GQUAL: Bringing Women to the Bench and to the Table for Beijing+20

Cindy Soohoo  introduces one of her CUNY students, who writes the following post:

By Katy Naples-Mitchell

This year marks the 20th Anniversary of the Fourth World Conference on Women – a convening on women’s human rights that produced the landmark Beijing Declaration and Platform for Action. Recent press coverage of the anniversary has focused on the Beijing Declaration’s relationship to the new sustainable development goals. But a new campaign called GQUAL by the Center for Justice and International Law (CEJIL) is taking a different tack by focusing on women’s representation in international positions of power.

 What does Beijing+20 have to do with GQUAL?

Part G of the 1995 Beijing Declaration addressed “Women in Power and Decision-making,” focusing on the strategic objective to “Take measures to ensure women's equal access to and full participation in power structures and decision-making.” Although the Declaration was primarily aimed at gender parity commitments within Member States, the Declaration also targeted obligations to bring women into the fold in the upper echelons of international decision-making. For example, in paragraph 193(a), the Declaration explicitly called on the UN to “achieve overall gender equality, particularly at the Professional level and above, by the year 2000….”

 Fast-forward to today:

CEJIL’s new GQUAL campaign reveals the significant shortfalls in reaching these gender equality goals and frames the issue as a violation of states’ obligations to respect the principle of non-discrimination. According to the GQUAL campaign launch materials, as of June 2015, women occupied only 21% of all positions within the main international and regional tribunals. In most cases, member states are responsible for nominating and electing candidates for these positions. Not only are they falling short on their non-discrimination obligations, but states also continually fail to circulate transparent guidelines that respect gender parity to ensure equality in candidate nominations and voting processes.

GQUAL calls for bringing awareness to, and ultimately correcting, the severe gender imbalances in international tribunals and monitoring bodies – putting the onus on states to nominate qualified women judges to serve on international tribunals. The GQUAL campaign’s strategies will include:

 Publicizing the current lack of gender parity within international mechanisms and tribunals

  • Growing grassroots support for gender parity
  • Disseminating information regarding available positions
  • Demanding transparency behind selection processes and enforcement guidelines

 The campaign launch is timely, not only because of the Beijing+20 anniversary but also because of statements out of Geneva just this week. On Tuesday at the 30th Session of the UN Human Rights Council, UN High Commission for Human Rights Zeid Ra’ad Al Hussein spoke about the lack of gender parity in UN human rights bodies and the “need to do better than our societies…to lead by example.” Mr. Al Hussein reminded Member States that at its 6th session in 2007, the Human Rights Council had encouraged states to nominate more women to human rights treaty bodies, mechanisms, and international courts and tribunals. He remarked that he pledged to undertake his own efforts to correct continuing imbalances, including refusal to take part in any panel that does not include women experts and to improve gender parity within his office, where “although women are 57% of staff graded ‘Professional’ and above, they still represented barely one-third of senior managers.”

 To learn more about GQUAL, visit the campaign’s website, infographic, or facebook page.

September 21, 2015 in Cindy Soohoo, Women's Rights | Permalink | Comments (0)