Monday, June 27, 2016

Breaking News: A Good Day for Women and SCOTUS

Two cases of significance, particularly to women, were decided at the end of  SCOTUS' 2016 term. 

The first is Whole Women's Health where the court struck down (5-3) a Texas abortion law as too restrictive. The court ruled that restrictions Texas placed on doctors who perform abortions in Texas, were unreasonable.  Both restrictions, that abortion centers must meet outpatient surgical facility standards and that doctors performing abortions must have privileges in hospitals local to the abortion facility.   

The second is Voisine v. US where the Petitioner asked the court to declare unconstitutional the prohibition on gun possession that is required under federal law when an individual is convicted of a crime of domestic violence.  Mr. Voisine argued that because his act of assaulting his girlfriend could have been "reckless", rather than intentional, the prohibition should not apply. The court ruled (6-2) against Mr. Voisine  .   The decision created some interesting judicial alliances.

Blogs analyzing today's decisions will follow.

 

 

June 27, 2016 | Permalink | Comments (0)

Sunday, June 26, 2016

Fisher Helps Promote U.S. Treaty Obligations

 by Connie de la Vega

Image1The U.S. Supreme Court upheld the University of Texas’ admission program that considers race as one of seven factors in the second part of its undergraduate admissions’ system.  This blog follows one covering the majority opinion.  That blog is available here.

The majority opinion by Justice Kennedy, which was joined by Justices Ginsburg, Breyer and Sotomayor did not raise the applicable treaty and international law that was raised in the amicus brief of Human Rights Advocates, the Poverty & Race Research Action Council, the Advocates for Human Rights, the University of Minnesota Human Rights Center, and the US Human Rights Network.  This blog will address how the treaty and international law is applicable to the case and how it related to the majority opinion.

As Amici noted, international law and opinion have informed the law of the United States since the adoption of the Declaration of Independence.  The Founders were greatly influenced by international legal and social thought, and throughout the history of the United States, courts have referred to international standards when considering the constitutionality of certain practices.

In this case, holistic consideration of race in university admission decisions is consistent with the United States’ treaty obligations as well as international practice, which makes the policy all the more compelling.  Indeed, two treaty review bodies (the HRC and CERD) urged the United States to undertake special and remedial measures to eradicate de facto discrimination in schools.  Other independent international law experts have counseled the United States to do the same.  The European Court of Justice and the national courts of other countries have also upheld affirmative action measures in relation to addressing racial disparities in higher education.  International treaties and practice support the University of Texas’s approach to admissions and the international obligations should be considered when assessing the process' validity under the Fourteenth Amendment.

The United States (U.S.) ratified the Convention on the Elimination of All Forms of Racial Discrimination (CERD) in 1994.  CERD requires State Parties to take affirmative steps to achieve the goals of eliminating racial discrimination.  The special measures taken for the purpose of securing advancement of racial or ethnic groups are not deemed racial discrimination under Article 1(4) and indeed are mandated under Article 2(2).  Under General Recommendation No. 32, the laws or policies to address the situation of disfavored groups should be used to address both de jure and de facto discrimination.  In other words Parties are required to address not only intentional discrimination but discriminatory effects as well.  (¶¶ 14 and 22.)

The CERD Committee has raised the importance of special measures in its review of countries’ compliance with the treaty, particularly in the field of education.  The U.S.’ policies on education have been the subject of concern for the Committee.  While it cited Grutter as a positive step in addressing inequality in education in its 2007 review of the United States 6th periodic report, in its Concluding Observations in 2008, the Committee observed that the U. S. had not done enough to enact special measures to eradicate de facto discrimination in schools.  Paragraph 17 of the Concluding Observations specifically framed this issue in the context of the “strict scrutiny” standards under the United States Constitution.  In its Concluding Observations of the U.S.’ 7th-9th reports issued in 2014, the Committee reiterated its previous recommendations that the U.S. adopt and strengthen the use of special measures.

The   U.S. ratified the International Covenant on Civil and Political Rights (ICCPR) in 1992.  In its 2006 review of the United States, the Human Rights Committee that oversees compliance with the ICCPR expressed concern over de facto racial discrimination in its public schools and reminded the U.S.  of its obligations under articles 2 and 26 to guarantee effective protection against practices with discriminatory effects.  In its report to the Human Rights Committee in 2011, the U.S. State Department acknowledged that special measures in higher education serve to uphold the “equal and inalienable rights” in the ICCPR.

The University of Texas argued throughout both Fisher cases that it seeks to admit a “critical mass” of minority students to its undergraduate programs through a holistic, individualized admissions process.  After conducting studies to assess whether the University was obtaining the educational benefits of diversity that result from a critical mass of underrepresented minority students, it implemented an admission program that would consider race as one of the many factors in making admissions decisions.  Amici argued that this program complied with CERD’s requirements that special measures be “appropriate to the situation to be remedied, be legitimate … [and] respect the principles of fairness and proportionality” as defined in General Recommendation No. 32, ¶ 16.

By upholding the University of Texas’ admissions program, the U.S. Supreme Court’s decision is in compliance with the U.S.’ obligations under both treaties as well as the practice of other jurisdictions such as the European Court of Justice and legal decisions and laws in countries such as Brazil, South Africa, India, Canada, New Zealand, and Australia.  While the focus of its decisions on this topic have been on achieving diversity,  and not necessarily achieving equality as required by the treaties, Fisher helps to promote the U.S.’ obligations under two treaties to which it is a party.

June 26, 2016 in CERD, Education, Race | Permalink | Comments (0)

Thursday, June 23, 2016

Live Reporting from the American Immigration Lawyers Association: US v. Texas

Editors Note: Prof. Irene Scharf is in attendance at the annual meeting of the American Immigration Lawyers Association where over 2,000 immigration lawyers are in attendance. As the per curium decision in US v Texas was announced, Prof. Scharf  blogged reaction to the decision including comments from counsel from the three mothers named as intervenors:
Image1This morning, the United States Supreme Court, in a deadlocked 4 - 4 vote reflecting Congress's failure to fill the seat created upon Justice Scalia's death, failed to reach majority in the government's challenge to the Fifth Circuit's injunction against implementation of Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). As a result, the Circuit court's injunction against the President's use of executive action stands. 
While the ruling does not impact the original DACA program launched in 2012, it is a searing loss for immigrant families and their supporters. "It’s bad for American communities, workers and the economy. ...  the nation needs a permanent solution to our outdated immigration system, and that must come from Congress.  'The fight will continue" reflected the American Immigration Council. Danny Cendejas, Organizing Director of Detention Watch Network, noted that “[t]he U.S. Supreme Court’s inability to reach a decision today leaves the lives of millions hanging in the balance. As a result, immigrants will continue to be targeted by the unjust detention and deportation machine fueled by unconstitutional raids and police and Immigration and Customs Enforcement (ICE) collaboration. With today’s ruling, people will still be subject to the inhumane detention system – putting their lives in jeopardy. It’s plain and simple; the U.S. government must end its reliance on immigration detention.”    
In comments this morning before attendees of the American Immigration Lawyers' Association's annual meeting in Las Vegas, Thomas Saenz, President and General Counsel of the Mexican American Legal Defense and Education Fund, who represented the three  mother-intervenors, indicated that this litigation, initiated by Texas but followed by governors of 25 additional states, was "wholly political," but it is ongoing and will be judicially resolved. In addition, he noted that the adverse effects on the many residents of these 26 states will surely be rendered politically.  Saenz was optimistic in the face of this temporary loss, reminding the immigration lawyers that "even in defeat you win."
Stay tuned.

 

June 23, 2016 in Advocacy, Immigrants, Immigration | Permalink | Comments (0)

Breaking SCOTUS News: Race Based Admissions; Immigration Policy; and Tribal Jurisdiction

In a 4-3 decision (Kagan, J. not voting), the Court ruled that the University of Texas race-based admission policy is lawful within the parameters of equal protection.  Here is link to the Court's opinion.

By a 4-4 vote, the court let stand a lower court decision that President Obama lacked the authority to extend immigration protections. The lower court injunction against implementation of the Presidential orders stands. Here is the per curium decision.

Also by 4-4 vote, the Court left standing multiple lower court decisions affirming the authority of Tribal Courts to bring civil actions against non-tribal individuals and entities. The per curium decision may be viewed here.

Watch for posts analyzing these decisions in the human rights framework.

 

 

OCT

June 23, 2016 in Immigrants, Race | Permalink | Comments (0)

Wednesday, June 22, 2016

The UN Guiding Principles on Business & Human Rights at 5:  Marking and Measuring Progress

Image1JoAnn Kamuf Ward, Lecturer in Law, Columbia Law School & Associate Director, Human Rights in the US Project at the Law School’s Human Rights Institute

In June of 2011, the UN Human Rights Council endorsed a set of global standards to articulate and operationalize the tripartite human right based "respect, protect, and remedy" framework to prevent and address human rights violations that result from business operations.   These UN Guiding Principles on Business and Human Rights (“The Ruggie Principles”) constitute the first comprehensive guidelines that define the state duty to protect against human rights abuses, the corporate responsibility to respect human rights, and the right to access effective remedies  when human rights abuses do occur.  

While the adoption of the Principles was surely a step in the right direction, they were criticized by some human rights advocates, including Human Rights Watch, early on as setting too low a bar for corporations.  This criticism raised concerns about three core aspects of the Principles.  First, that the standards themselves do not mirror what human rights require in terms of accountability and remedies.  Second, because the Principles are voluntary, they lack the requisite carrot and stick to ensure compliance.  Third, the rules do little to address the reality that there is often a massive power imbalance between multinational corporations that commit (or turn a blind eye towards) rights violations and the countries in which they operate. 

Last week saw the five year anniversary of the Guiding Principles, and happily, they have led to some positive action.  There has been an uptick in the number of companies developing publicly available human rights statements.  Volvo Group and  Caterpillar are among the hundreds of companies that have developed a statement of policy on human rights, in line with Guiding Principle 16.  Several companies, including Adidas and Barrick Gold have also set up remedy mechanisms, though their effectiveness is a subject of fierce disagreement between advocates and the companies themselves.   And, as we know, corporate human rights abuses continue to wreak havoc in communities around the world, with the tragedies of Rana Plaza in India and the deaths at Marikana mine in South Africa as just two examples.

Of course, no one said progress would be easy.  Yet what is laudable is that the Business & Human Rights Resource Centre used the 5 year anniversary to capture both the trends and challenges in implementing the Principles, and to highlight opportunities to make progress moving forward.  This effort includes accessible infographics for each pillar of the Guiding Principles:  the state duty to protect human rights; the corporate responsibility to respect human rights, and the individual’s right to a remedy.  Stakeholder reflections on key benefits and challenges are also available on the Centre’s website.  The 5th anniversary of the Guiding Principles offers an important moment to reflect on what has been accomplished and what is left to be done.  While there is certainly more of the latter than the former, marking progress has served as an opportunity to breathe new life into the focus on improving compliance with human rights in the corporate context.  

Indeed, on the eve of the 5th anniversary, a coalition of global businesses announced a new initiative to measure and report on corporate respect for human rights and increase transparency around how the top 500 globally listed companies measure up in terms of “human rights policy, process and performance” through the Corporate Human Rights Benchmark.  The ranking system is illustrated here:

  Image1

The indicators, which are admittedly limited in scope, were rolled out over the past year and shared with an array of stakeholders around the world.   The Corporate Human Rights Benchmark as a whole, though, was developed in large part by private sector investment entities and funded by the UK and Dutch governments.  So while there was broader stakeholder engagement,  the primary drivers are businesses and governments,  who have vested interests  in the outcomes (to say the least).   Indeed, just a bit of cursory research uncovered concerns that the baseline indicators are inconsistent with the international human rights framework, and the focus on companies’ commitments, rather than outcomes fails to capture the true human rights impacts and costs of doing business.  Undoubtedly, as the first reviews are completed, further critiques will emerge.

Nevertheless, this new Corporate Human Rights Benchmark can be viewed as a positive step.  The metrics are meant to serve as the carrot to incentivize further progress in promoting and protecting human rights.  As the Chair of Ben & Jerry’s Board of Directors noted, the Benchmark “should drive a change in corporate behavior.   This performance ranking is built on what the companies do rather than their rhetoric.  Those who truly support and deliver on high labor, environmental and human rights standards will be recognized and those that do not will have their records exposed to investors, customers, civil society, and home governments.  The expectation is that this ranking system will drive a race to the top and a competition to benefit people, the planet, and the bottom line.”  

2016 will serve as a pilot year for the Benchmark, and 100 publicly listed companies have been selected for review, based on publicly available data.  A large subset of these companies are based in the United States, including extractives, as well as more familiar retail outfits, such as Costco, Target, Coach, the Gap and Under Armour.  The full list of companies is available here.   It remains to be seen what level of rigor will be applied to the benchmarking process but this is surely something to watch.

Even if it the progress made to implement the UN Guiding Principles since 2011 is imperfect, it is noteworthy.   The next five years will offer us a more nuanced understanding of how the commitments made on paper play out in corporate practice.  It will also offer new insights into how U.S. companies operationalize human rights and respond to evaluations framed in human rights terms.

(As a notable aside, Ben & Jerry’s has been a target of the Migrant Justice Milk with Dignity Campaign, which is fighting to secure rights for migrant dairy workers, and signed a commitment to work with Migrant Justice last year).

June 22, 2016 in Books and articles, Business, JoAnn Kamuf Ward, Workplace | Permalink | Comments (0)

Tuesday, June 21, 2016

The Necessity and Promise of Human Rights

With new revelations about US torture policies continuing to come out -- and indeed, new calls for use of torture as a matter of US policy --  US human rights activists and scholars will welcome the new book by Jamie Mayerfield, The Promise of Human Rights: Constitutional Government, Democratic Legitimacy and International Law.  Here is the publisher's description of the book, available from Penn Press:

International human rights law is often criticized as an infringement of constitutional democracy. In The Promise of Human Rights, Jamie Mayerfeld argues to the contrary that international human rights law provides a necessary extension of checks and balances and therefore completes the domestic constitutional order. In today's world, constitutional democracy is best understood as a cooperative project enlisting both domestic and international guardians to strengthen the protection of human rights. Reasons to support this view may be found in the political philosophy of James Madison, the principal architect of the U.S. Constitution.

The Promise of Human Rights presents sustained theoretical discussions of human rights, constitutionalism, democracy, and sovereignty, along with an extended case study of divergent transatlantic approaches to human rights. Mayerfeld shows that the embrace of international human rights law has inhibited human rights violations in Europe whereas its marginalization has facilitated human rights violations in the United States. A longstanding policy of "American exceptionalism" was a major contributing factor to the Bush administration's use of torture after 9/11.

Mounting a combination of theoretical and empirical arguments, Mayerfeld concludes that countries genuinely committed to constitutional democracy should incorporate international human rights law into their domestic legal system and accept international oversight of their human rights practices.

June 21, 2016 | Permalink | Comments (0)

Monday, June 20, 2016

U.S. Gun Violence: a Human Rights Response

 

Image1

 

Risa Kaufman, Executive Director, Columbia Law School Human Rights Institute

Well before the June 12th attack in Orlando, human rights advocates labeled gun violence in the United States a human rights crisis, underscoring the urgent need for government action.

The Orlando mass shooting, which targeted the LGBTQ community, was the worst in U.S. history. Mass shootings have become devastatingly common, while communities throughout the United States suffer from gun violence on a daily basis. Every day, an average of 89 people in the United States die from gun related violence. That’s 32,000 people a year.

The impact on communities of color and on women is particularly acute. African-Americans are more than twice as likely to die from gun violence than whites.  And, in instances of domestic violence, the presence of a firearm in a home increases the risk of homicide by 500%.  Amnesty International USA’s recent human rights report on gun violence in Chicago and Illinois, and the Violence Policy Center’s report on intimate partner homicide starkly illustrate the crisis. Image1

As Congress debates whether and how to curb easy access to deadly assault rifles and other firearms, human rights officials express dismay at the most recent tragedy, and stress the critical need for U.S. lawmakers to respond.  

Last week, the UN High Commissioner for Human Rights issued a statement urging the United States to “live up to its obligations to protect its citizens” from gun violence. The statement follows the Office of the High Commissioner for Human Rights’ recent report to the UN Human Rights Council on human rights and the regulation of firearms. The report delineates ways in which gun violence threatens a sweeping range of rights, and emphasizes governments’ due diligence obligations to protect.

The Inter-American Commission on Human Rights likewise issued a statement condemning the Orlando shootings and urging reforms. In a previous thematic report, the IACHR examined government’s obligations to protect, including through the regulation of firearms.

Human rights experts have repeatedly sounded the alarm.

In visits to the United States earlier this year, two groups of UN experts stated concern over U.S. gun violence, and the government’s failure to curb it. The Working Group of experts on People of African Descent noted concern with the lack of gun control and “stand your ground” laws and the impact on African American communities in the United States. The Working Group on discrimination against women noted the “persistent fatal consequences for women” of the lack of gun control in the United States, in particular in cases of domestic violence.

The UN Human Rights Committee and the Committee on the Elimination of All Forms of Racial Discrimination both dedicated portions of their most recent reports on U.S. human rights compliance to the issue of gun violence. They noted concern with the high number of gun-related deaths and injuries in the United States, and the disparate impact on racial and ethnic minorities. Both committees view the government’s failure to curb gun violence as a violation of the right to life and the right to non-discrimination. And they urged the U.S. to take action to reduce gun violence, including through the expansion of background checks and other enhanced gun violence prevention measures. 

Has outrage over gun violence in the U.S. finally reached a tipping point? Framing the epidemic as a human rights crisis demands U.S. lawmakers to respond, adding urgency to a drumbeat of calls for meaningful reform. 

June 20, 2016 in Guns, Risa Kaufman | Permalink | Comments (0)

Sunday, June 19, 2016

Road Trip!

Looking for a road trip to coincide with the start of summer this week?  Atlanta's Center for Civil and Human Rights is known for its interactive and modern take on the US civil and human rights movements.  Now, it has been awarded a Trip Advisor Certificate of Excellence -- an on-line award that should help drive more traffic to the Center.  And on June 23, the Center will be holding its 2nd birthday celebration, a hip-hop focused event called Get Centered.  Here's the rundown of activities:

Get Centered | Center for Civil and Human Rights

This year’s birthday celebration is all about inspiring visitors to learn more about the struggles for human rights at home and around the world with a sense of hope, commitment and action.

A3C has programmed a special evening that will kick off with a panel discussion moderated by Rohit Malhotra of the Center for Civic Innovation. 

Panelists:

  • Killer Mike
  • Toni Blackman
  • Stic (of Dead Prez)
  • Speech (of Arrested Development)
  • David Wall Rice (of Morehouse College)

After the panel discussion, celebrate the power of speech and hip-hop while touring The Center with Legendary Atlanta DJs: DJ Jelly, DJ Nabs and Jaycee. They have all prepared DJ sets highlighting records that exemplify political, socially conscious and progressive movements.

For more information and to purchase tickets, check out this link.

 

 

 

June 19, 2016 | Permalink | Comments (0)

Thursday, June 16, 2016

Pondering US Women Registering for the Draft: Equity?

The Senate passed a bill requiring females who turn 18 to register for the draft .  This requirement would apply to those girls who turn 18  in 2018 or later.  The supporting argument is that since women can serve in all military positions open to men, they should have the same obligations. The bill now moves to the House, where conservative members are opposed to registration expansion.  The bill raises interesting questions around women and safety.

Will the military take any steps to ensure that women are safe from sexual assault and harassment while serving their country?  Men are killing individuals and in mass numbers, at the same time that cultural shifts have resulted in more acceptance of diverse sexual identities, increased racial activism  and the increasing power of women.  What are female recruits going to face as they are forced into one of the most change resistant and oppressive institutions for women?  Yes- many women have risen to impressive ranks of military service, but many more have been sexually assaulted. 

The long term benefits of women serving in the military could be significant. In the very long term, we might have a military where decision making is balanced by the inclusion of both feminine and masculine perspectives.  Those veterans who promote male privilege will lose their edge.   Jobs giving veterans preference due to their status would now be open to the missing half of the population. Often ignored, PTSD in females might be recognized and treated more seriously. 

But in the short term - which could be decades- women risk assault in every way by their male peers and superiors.  As assault victims, females soldiers who report are more likely to be discharged without compensation or other redress while male perpetrators are unpunished. The privileged among us who promote war rely on no-active-draft status to save their sons from forced service.  The class equity that draft brings will be less likely as the privileged resist implementation of a draft that results in their daughters' deployment.  

Now that military women have access to all positions open to men, will we assume that we are post- misogyny in the armed services?  Or is this move nothing less than backlash? Backlash against women has a long history.  The attempt to universalized the successes of a few woman historically created a backlash for women. Here are a few:

            "No-Fault" divorce discouraged women from addressing the truth of their abusive  relationships.

            When job discrimination became illegal and women were beginning to make employment inroads, family court judges             denied or limited alimony telling women who had not worked in decades to return to the workforce.

            Women on the job have been punished for being female.  Namely, motherhood more often results in their losing             jobs or status within the workplace, as well as decreased pay.  Mothers are expected to take care of sick children,             aging parents but are not compensated when they do so.

            Now that sexual assaults in the military are being exposed, the military has changed its definition of assault to             make it more  difficult for victims to qualify for redress.

What does this mean for women soldiers who might make up half the force?  The first few generations of female soldiers continue to suffer from male dominance and abuse. The culture may change, eventually, but change in the military does not come quickly.

Does the registration bill promote equity or punish it?  Will President Obama sign the bill if passed?  Malia will not be required to register but Sasha will.   

 

    

    

    

 

 

 

 

 

June 16, 2016 in Equality, Margaret Drew, Military, War | Permalink | Comments (0)

Wednesday, June 15, 2016

The United State of Women

Yesterday the White House Summit, the United State of Women, was held in Washington, DC.  The event was outstanding for many reasons.  Bringing together five thousand (mostly female) advocates for women in one space was amazing.  The line up of speakers was equally amazing.  The list is too long to recreate here but here are some of the names of presenters you might recognize:  Valerie Jarett, President Obama, Vice President Biden, Billie Jean King, Amy Poehler, Patricia Arquette, Sarah Jones, Warren Buffet and so many others whose names you may or may not recognize.  To me, the highlight was listening to Oprah Winfrey interview the First Lady.  As one colleague remarked, the experience felt like eavesdropping. 

Many presenters began by the horrific events in Orlando with unexpected guest Attorney General Loretta Lynch addressing the events expansively in her talk.  Bamby Salcedo, President and CEO of TransLatin@Coalition, made the Orlando slaughter both real and personal.

As participants moved to and from breakout sessions, they were accompanied by female musicians who played in drumming and mariachi bands, both of which historically have been closed to women.  The drumming did provide a humorous moment.  To the laughter and eye rolls of the women, a line of five men, presumably convention center employees, unabashedly walked between the drummers and those women watching the the performers, unwittingly becoming a reminder of why we were gathered. 

Significantly, participants commented on their freedom to unapologetically focus on women.  Straight, lesbian, trans, queer, women of color, younger and older - all were freed.  Any need to appease male supremacists with gender neutral language was unnecessary and would have been inappropriate, as it often is.  In other words, minimization and denial of the special problems endured by women was absent from the room. 

To the White House planners, thank you.

 

Editors' note: The event was recorded and may be watched on line at the Summit website.

June 15, 2016 in Equality, Gender Oppression, Margaret Drew, Women's Rights | Permalink | Comments (0)

#IACHRinCrisis

#IACHRinCrisis has produced a series of simple, powerful graphics to indicate the impact of impending cutbacks at IACHR as well as larger context of the financial crisis facing the Inter-American Commission.  One of the most telling is below, comparing the expenditures for other regional and international human rights systems with the expenditures for the Inter-American system:
 

June 15, 2016 | Permalink | Comments (0)

Tuesday, June 14, 2016

New Scholarship on Dignity and the Eighth Amendment

Abstract:     

"Dignity" has figured in many recent Supreme Court cases involving sexual and reproductive rights.  In a new article, Meghan Ryan of SMU-Dedham School of Law, looks at the meaning of dignity in Eighth Amendment jurisprudence.  The article, posted on SSRN and forthcoming in the University of Illinois Law Review, is available here.  Here is the abstract:
 
 
Taking Dignity Seriously: Excavating the Backdrop of the Eighth Amendment
 
The U.S. punishment system is in turmoil. We have a historically unprecedented number of offenders in prison, and our prisoners are serving longer sentences than in any other country. States are surreptitiously experimenting with formulas for lethal injection cocktails, and some prisoners are suffering from botched executions. Despite this tumult, the Eighth Amendment of our Constitution does place limits on the punishments that may be imposed and how they may be implemented. The difficulty, though, is that the Supreme Court’s Eighth Amendment jurisprudence is a bit of a mess. The Court has been consistent in stating that a focus on offender dignity is at the core of the Amendment’s prohibition on cruel and unusual punishments, but there has been virtually no analysis of what this dignity requirement means. This Article takes the first foray into this unexplored landscape and finds that the Constitution demands that the individuality of offenders be considered in imposing and carrying out sentences. While this appears to be a simple concept, it raises significant concerns about several modern-day sentencing practices. Punishments rooted in pure utilitarianism, by neglecting the importance of the individual offender, run afoul of this dignity demand. This sheds doubt on the propriety of some judges’ assertions that defendants’ freestanding innocence claims cannot stand because policy considerations like finality are of paramount importance; an individual offender cannot be ignored purely for the sake of societal goals. For the same reason, the importance of individual dignity should lead us to question statutes supporting only utilitarian aims of punishment. While this raises questions about the constitutionality of pure deterrence, rehabilitation, and incapacitation, these purposes of punishment may be reconceptualized to account for the individual offender. For example, rehabilitation could be reformulated to consider not only the offender’s effects on society when he is returned to the community but also whether the offender’s character has been reformed. Finally, the importance of Eighth Amendment dignity raises questions about the constitutionality of mandatorily imposed punishments, which overlook the importance of individualization in sentencing. If we take seriously the dignity core of the Eighth Amendment, then many of these practices must be reconsidered.

 

June 14, 2016 | Permalink | Comments (0)

Monday, June 13, 2016

The Only Thing We Are "Post" is Love

The shooting in a gay nightclub, the largest mass murder in the United States, is a barometer of how the underbelly of the country is erupting with hatred and prejudice.

We are not post-racial. We are not post- homophobia.  And we are not post-misogyny. 

After President Obama’s election, those who ignored the reality of the depth of bias referred to the country as post-racial.  The election triggered the opposite.  Racial prejudice, as well as bias, has been blatant and played out in ways that undermine our democratic processes.  Think Mitch  McConell’s pledge shortly after President Obama’s inauguration that Mr. McConnell’s sole function was to make certain that Obama did not succeed. 

Image1We celebrated the relative rapidity with which LGBTQ equality cases successfully moved through our legal system.  But we understand now that LGBTQ success triggered extreme violence against that community, as well.  Americans' discomfort with varied sexual identities, combined with fundamentalist beliefs that homosexuality and other sexual differences are the result of “sin”, propels angry and otherwise flawed individuals to violence.  The Orlando shooter’s pledge to ISIS is a sham.  The only thing that ISIS and the shooter have in common is access to deadly weapons and using fundamentalist doctrine as a disguise for hatred and violence.  This shooting was not a terrorist act as Homeland Security would define it.  This shooting was an extreme homophobic act.  Not even a year has past since Obergefell was decided.  Those who celebrated before a rainbow colored White House have returned to mourn.

And as Secretary of State Clinton moves toward her nomination and presidential campaign, we can expect a rise in already significant misogyny. 

Hatred may not be at higher levels than earlier times.  But what has changed is that public expressions of hatred are tolerated and the culture is increasingly narcissistic.   Combine cultural intolerance with access to assault weapons and a desire to die in the most notorious way possible, and we have a recipe for large scale, horrific violence against the historically vulnerable. 

June 13, 2016 in Equality, Margaret Drew | Permalink | Comments (0)

Sunday, June 12, 2016

Continuous Human Rights Education . . .

Long commute?  Bored at the gym?  Check out this link for an assortment of Human Rights podcasts, ranging from newsy topics to interviews with authors about their new books.  The Raoul Wallenberg Institute of Human Rights and Humanitarian Law has its own podcast series, "On Human Rights," also a combination of interviews with human rights newsmakers and scholars.  For example, in a recent interview, Arizona professor Suzanne Dovi critiques the treatment of victims in the international criminal court system noting that sometimes "3000 victims are being represented by 2 lawyers."  Likewise, Oxford University sponsors a series of human rights web seminars, the latest focusing on historical research on chemical weapons in apartheid South Africa.  So don't get bored-- get educated and inspired!

June 12, 2016 | Permalink | Comments (0)

Wednesday, June 8, 2016

Five Words I Never Thought I'd Hear

There are some words I thought I’d never hear spoken outside of a dream. Like, “we represent a feminist government.”  But I heard them, wide awake, in Geneva, Switzerland, on June 7, when the Swedish government was reviewed by the UN Committee on Economic, Social and Cultural Rights.

“Sweden’s government is a feminist government,” proclaimed Pernilla Baralt, the Swedish State Minister leading the review. Even the members of the Committee were unsure what to make of it.  “What is a feminist government?” one of them asked.  The State Minister explained:  “We conduct impact studies of every government policy to determine its impact from a gender perspective.” 

It makes a difference. For example, Sweden has long been known for its generous family leave policy, and the incentives built into the policy to encourage fathers to take leaves.  But government research has shown that it is still women who take a disproportionate share of parental leave.  In an effort to even things out, the government has increased the incentives for families to designate fathers as caretakers for at least three months of the parental leave.

In formulating government policies affecting Roma and other minority women, the government pledged to abide by the motto, “nothing about me without me.” Women affected by policies would be at the table to inform the policymaking process, the delegation said.

And all Swedish ministries and heads of government budget divisions must engage in “gender budgeting.” With each new reform, according to the State Minister, they need to evaluate the consequences based on gender and reallocate funds as needed to promote gender equality. 

Sweden believes that it is the first feminist government in the world. Is it breaking a path that others will follow?  Of course, it doesn’t take a female leader to make a feminist government, and Sweden’s Prime Minister, Stefan Löfvén, is male.  Still, with Hillary Clinton now the first ever female presidential nominee representing a major political party, it's hard not to wonder whether the US might ever join Sweden in declaring that we have a feminist government, too.  With Sweden doing the groundbreaking work to fill out the contours of a feminist government, we can at least dream.     

 

 

June 8, 2016 | Permalink | Comments (0)

Tuesday, June 7, 2016

Trump: Human Rights Threat, President or Not

Based upon his rhetoric, Mr. Trump is conducting his campaign without even a minimum standard of respect, let alone dignity.

In his book, The Narcissist Next Door, the author points to Donald Trump as an example of a narcissist.   This could explain many things about Mr. Trump.  He can easily believe he is telling the truth at any given moment.  When confronted with earlier contradictory statements he either denies the statements, distinguishes or ignores them. 

And there are more dangerous components to his personality that could result in massive human rights violations.  Anyone criticizing or opposing him is an enemy.  This was played out in his "short fingers" controversy.  Trump reportedly spent years attempting to convince the reporter who referenced short fingers that she was wrong.  But now the stakes are higher.

Mr. Trump can accept neither criticism nor contradiction.  This is played out in his refusal to respect the judiciary.  Offended that the court is ruling against him, the presumptive Republican nominee went on the attack, claiming that the judge, whose parents are Mexican immigrants, is biased against him.  Of course, Mr. Trump already claims that his remarks were "misunderstood".

This is not the first time that Mr. Trump has attacked judges on bias grounds when their rulings were not to his liking.  But prior attacks were not broadcast to millions of Americans.

It is unimaginable that Mr. Trump will relinquish control of his businesses and investments, a requirement if he is to take office of President.  For this reason, we should not be surprised if he declines the Republican nomination or creates chaos by declining to serve if elected.  No matter the political outcome, human rights damage is already done. 

Mr. Trump has already distributed his racist and misogynistic beliefs. While his offensive pronouncements may further alienate some political supporters, his remaining supporters appear unperturbed. Millions of Americans think that incivility, disrespectfulness, racism, ignorance and misogyny are tolerable.  Soon we will see Mr.Trump's behavior mimicked.  For those in our population who share Mr. Trump's beliefs, they are now empowered.  For those who had similar leanings, the removal of any civil boundaries serves to strengthen such beliefs. 

Mr. Trump does not want to make America great.  Mr. Trump wants to continue the feeding of his narcissism, even at the cost of human rights. 

   

 

June 7, 2016 in Margaret Drew | Permalink | Comments (0)

Sunday, June 5, 2016

UN Bodies Rally to support the IACHR

 Several weeks ago, the Inter-American Commission on Human Rights announced that it was suspending hearings and laying off staff due to inadequate financial support from member nations.  Two UN groups have now issued a strong statement calling for financial support for the Inter-American Commission.  "We cannot let it go bankrupt," they conclude.  Likewise, an impressive collection of international scholars and activists have penned an open letter to the Organization of American States in a plea for national and donor support to allow the IACHR to continue operations.  The letter asks that action be taken by June 15 to allow IACHR operations to go forward.  You can still add your name to the petition by clicking here and completing the form.

June 5, 2016 | Permalink | Comments (0)

Friday, June 3, 2016

Teaching Ethics: Foster v Chatman

Among this term’s cases that were not deadlocked due to a missing 9th justice, is Foster v. Chatman.

Mr. Foster is a cognitively challenged black man who has been imprisoned nearly thirty years waiting execution following a murder conviction.   The issue before the court was whether Mr. Foster right to trial before a jury of his peers was defeated through the prosecution’s manipulation of the juror selection process.  Mr. Foster . who is African American, argued that the prosecutor impermissibly eliminated black jurors thus creating a biased jury pool.  The court, in a seven to one opinion, determined that the prosecution demonstrated racial bias in jury selection and remanded the case to the lower court. 

The legal impact of the decision will be limited.  Mr. Foster’s lawyers gained access to the thirty-year-old prosecutor’s file which showed, among other discriminatory evidence, a “b” written next to the names of the black prospective jurors.  Such blatant evidence is rarely available.  With progressively more focus on criminal justice practices that limit or deny civil rights protection to people of color, it is likely that written documentation of exclusionary jury practices no longer appear in prosecutor’s notes.  The case is unlikely to influence future discrimination cases except in one regard:  it is possible that some judges will scrutinize more closely the Batson claims of prosecutors that there were “ legitimate reasons” for eliminating black jurors.   But under the current status of case law favoring prosecutors even enhanced scrutiny is not likely to change discriminatory practices.

In addition, two justices noted, there may be procedural barriers beyond the bias issue that prevent Mr. Foster from receiving a new trial.

But will the prosecutor in question benefit from the passage of time thereby avoiding disciplinary action?

ABA Model Rule 3.8 emphasizes the special duty of prosecutors to assure justice, in addition to their duties to be competent lawyers on behalf of the state. Under the rule, prosecutors have a duty to seek and preserve justice as well as to prosecute individuals deemed a threat to the public.   Commentary to the rule reads in part: "A prosecutor has the responsibility of a minister of justice and not simply that of an advocate."  This includes an obligation to ensure that the defendant receives "procedural justice".     

Unlike other model rules, as adopted by the various states, there are relatively few disciplinary decisions sanctioning prosecutors for behavior that frustrates or thwarts justice.  The apparent lack of discipline for prosecutors (think of the lack of discipline for the now notorious prosecutor in Making of A Murderer) ignites vigorous law classroom debate.  Many disciplinary complaints allege conduct as concerning as that found in the documentary.  But even when the facts of the complaint are acknowledged, often no or mild discipline follows. 

The ethics discussion typically progresses from one concerning individual cases to the larger problem of whether or not the lack of discipline results from a bias to protect the state.  What is the fear behind disciplining wayward prosecutors?  Are ethics boards concerned about a flood of complaints that might result in a mirroring of the justice systems overcrowded dockets?  If so, that fear must be insufficient to prevent disciplinary boards from applying their independent judgment.  Adverse collateral consequences to legal systems must not be a factor in determining whether justice has been manipulated by a key state actor. 

My prediction is that among the consequences of holding prosecutors to their dual obligations will be the cheering of those many prosecutors who take their larger responsibilities of ensuring justice to heart.   

 

June 3, 2016 in Advocacy, Criminal Justice, justice systems, Margaret Drew, Teaching | Permalink | Comments (0)

Thursday, June 2, 2016

Dueling Country Reports

The United States is statutorily required to issue reports assessing the human rights records of all countries to which it provides aid and all UN member states.  This year's reports, issued in March 2016, marked the 40th year of this practice.  The Council on Foreign Relations summarizes the trends identified in the reports here.

China issues similar country reports.  Information about China's assessment of the US, issued April 2016, is available in this news report and the full text (in English translation) is available here.   The report includes a chronology of 2015 human rights violations in the US, gleaned from press reports.  China and the US are not alone.  For example, Sweden issues similar reports, and has a report on the US, available only in Swedish.

June 2, 2016 | Permalink | Comments (0)

Wednesday, June 1, 2016

Summer, Play and Human Rights

by Jonathan Todres  

Image1For many, the arrival of summer conjures up memories of childhood adventures (or, for parents, images of their children playing and exploring).  Play and leisure are not typically associated with human rights, but they are part of human rights law and important to children’s growth and well-being.

In fact, the “right to play” is intertwined with other important rights, as Article 31 of the Convention on the Rights of the Child states:

‘1. States Parties recognize the right of the child to rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts.

  1. 2. States Parties shall respect and promote the right of the child to participate fully in cultural and artistic life and shall encourage the provision of appropriate and equal opportunities for cultural, artistic, recreational and leisure activity.’

Play, rest, leisure, and participation in family and community cultural life are all connected. This idea is not new to human rights. The Universal Declaration of Human Rights, adopted in 1948, states in Article 24 that: “Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.”  In other words, a similar concept was recognized in the foundational document of the human rights movement.  Though the drafters of the Universal Declaration and the early international human rights instruments tended to have adults in mind, children are people too.  The Universal Declaration applies to children fundamentally because human rights do not depend on governments granting rights; individuals have rights because they are human beings.

        While rest and leisure are important in the labor rights context for adults, opportunities for leisure and play are even more critical for children. As Dr. Kenneth Ginsburg explains in an article in Pediatrics:

‘Play allows children to use their creativity while developing their imagination, dexterity, and physical, cognitive, and emotional strength. Play is important to healthy brain development. It is through play that children at a very early age engage and interact in the world around them.  … Undirected play allows children to learn how to work in groups, to share, to negotiate, to resolve conflicts, and to learn self-advocacy skills…. Play is integral to the academic environment…. It has been shown to help children adjust to the school setting and even to enhance children’s learning readiness, learning behaviors, and problem-solving skills.’

        In short, play contributes in a multitude of ways to the healthy development of the child and can improve a child’s capacity to realize his or her right to education.

         Evidence of the importance of play and the rights to rest, leisure and play reinforce two important themes.  First, all rights matter:  the fulfillment of every right can contribute to the development and well-being of children. Second, there are many ways to support and help realize human rights for all: to create safe environments for children to play and explore their world is to advance human rights.   

June 1, 2016 in Children, Jonathan Todres, Juveniles | Permalink | Comments (0)