Sunday, June 17, 2018
Senator Edward Markey and Congressman Alan Lowenthal introduced the International Human Rights Defense Act of 2018 in both the house and the senate. The legislators seek to make the human rights commitment to LGTI rights a priority nationally and internationally.
The legislation would direct the State Department to continue its efforts in defending the human rights of LGBTI individuals globally. The bill would, among other terms, would require the State Department to develop a plan to address global discrimination against members of the LGBTI community. In addition, State would be required to create a position "Special Envoy on the Human Rights of LGBTI individuals.
The bill is co-sponsored by numerous legislators and is supported by Human Rights Campaign, Human Rights First, Council for Global Equality, American Jewish World Service, National Center for Transgender Equality, Robert F. Kennedy Human Rights and the American Psychological Association.
For more information about the bill, see here.
Friday, June 15, 2018
What has become frighteningly clear is that the Administration is moving quickly to deny that human rights are of any consequence. That human rights exist and human rights law has any influence is soon to be fake news.
In addition to the horrendous ripping of children and mothers at the US border, two recent actions support the administration's disregard of human rights. Earlier this week, Attorney General Sessions announced that victims of gang violence and domestic violence will no longer be eligible for asylum. In his announcement, Mr. Sessions stated that asylum was never intended to protect from these forms of violence. Yet the risk of death by those trying to escape results from the home state's refusal to protect its citizens from gang and domestic violence. This is a state, not private matter. Of course those most affected by this violence are women, LGBTQ individuals and children, who are particularly vulnerable targets of the President.
Now it appears that the US will withdraw from the UN's human rights council. The conceit used is US complaints that the council has passed too many resolutions condemning Israel for human rights violations. Whether that is accurate is irrelevant to the decision. The underlying indicators reveal that the President has wanted nothing to do with the HR Council since early in his tenure. The Administration has heard enough about human rights. Any discussion is over.
Thursday, June 14, 2018
In A Human Rights Code of Conduct: Ambitious Moral Aspiration For a Public Interest Law Office of Law Clinic, Prof. Lauren Bartlett addresses the development of lawyer ethics with a focus on the development of a human rights ethical code. The development of human rights ethics codes for our clinics is an important concept and one that opens all sorts of opportunities to engage students in developing the code, but also the professional tenor and goals, of the clinic.
The Introduction to this intriguing topic reads:
Incivility and unethical behavior in the legal profession have long been topics of concern in the United States. In recent years, many state and local bar associations, as well as the American Bar Association (“ABA”), have taken steps to address incivility, including adopting professional rules, amending lawyers’ oaths of office, and more. Yet current events continue to test limits of tolerance for incivility and unethical behavior. What is more, too many lawyers are unhappy and unhealthy in the legal profession, which has been tied to ethics and integrity. In these difficult times for the legal profession, moral aspiration, or the hope or ambition for high ethical integrity, is incredibly important.
Lawyers seek moral aspiration from a variety of sources, including other lawyers, religion, and cultural norms. They also seek the rules, standards, and guidance applicable to lawyers in the United States This Article offers an alternative source for moral aspiration for lawyering—human rights—and suggests establishing a human rights dignified, respectful, and safe space, and to hold colleagues, students, and others, to high ethical standards. The idea of a human rights code of conduct for a law office or law clinic builds on recent scholarship applying human rights principles to lawyering. In addition, this idea follows the recent proliferation of corporations choosing to adopt social justice and human rights related codes of conduct.
A human rights code of conduct provides practical, consistent, and significant ways to apply human rights principles to lawyering. Modeled loosely after professionalism codes or civility codes across the United States, a human rights code of conduct draws on human rights principles and provides ambitious moral aspiration for attorneys and law students. A human rights code of conduct provides practical guidance for navigating difficult ethical dilemmas, without necessitating additional regulation. A human rights code of conduct also promotes attorney and law student happiness and helps the reputation of the legal profession as a whole.
The full article may be accessed here.
Wednesday, June 13, 2018
The Interconnections between Health and Housing
For its next issue the Journal of Affordable Housing & Community Development Law (the Journal) invites articles and essays exploring the interconnections between health and the Journal’s traditional themes: affordable housing, fair housing and community/economic development. Topics could include creative housing developments; federal, state, local and/or private funding sources; statutes, policies or regulations; and empirical studies. Articles and essays could analyze new developments, tell success stories, or explore problems relating to issue such as affordable independent/assisted living, aging in place, or in-home care, and propose legal and policy recommendations.The Journal we
lcomes essays (typically 2,500–6,200 words) or articles (typically 7,000-10,000 words) on the theme.
The Journal is the nation’s only law journal dedicated to affordable housing and community development law. The Journal educates readers and provides a forum for discussion and resolution of problems in these fields by publishing articles from distinguished law professors, policy advocates and practitioners.
Interested authors are encouraged to send an abstract describing their proposals to the Journal’s Editor-in-Chief, Tim Iglesias, at firstname.lastname@example.org. The Journal accepts submissions on a rolling basis. Please do not hesitate to contact the Editor with any questions.
Tuesday, June 12, 2018
Last week President Trump commuted the sentence of a 63 year old woman who has been imprisoned for over twenty years, having been given a life sentence for drug trafficking. Alice Johnson had been convicted in 1996 for conspiracy to possess cocaine and for attempted possession of cocaine. Her crimes were non-violent but her sentence was considered by many to be disproportional to the offenses. Ms. Johnson became involved with drug trafficking during a desperate time in her life. She had lost her job, was divorced and experienced the death of her son.
Advocates have been working hard for years to secure Ms. Johnson's release from an Alabama prison. How was Ms. Johnson able to obtain success? Kim Kardashian took up her cause after reading a tweet about the case. Ms. Kardashian began advocating for Ms. Johnson, first by contacting Ivanka Trump and then Jared Kushner. Finally, Ms. Kardashian secured a meeting with President Trump. Ms. Johnson had been denied commutation under the Obama administration. President Trump noted that Ms. Johnson was a model prisoner and executed the documents necessary to release the great-grandmother.
At the urging of Sylvester Stallone, President Trump earlier issued a full pardon for now deceased heavy weight champion John "Jack" Jackson.
Other pardons were less well received publicly, but involved the famous or notorious. Dinesh D'Souza and Lewis "Scooter" Libby are among those who received Trump presidential pardons. So be a celeb or find yourself one should you seek a presidential pardon during this administration.
Monday, June 11, 2018
In conjunction with the State University of New York, New York City Pride will launch its First Human Rights Conference on Pride. The one day conference will be held on June 14th at SUNY's Global Center at 116 E. 55th Street. The website informs "This one day conference provides a unique opportunity for a global dialogue about human rights, ranging from performances to presentations, politics to policies, and activists to academics." Assistant Secretary-General for Human Rights, Andrew Gilmour (UN OHCHR) will participate in the conversation. More information can be found here.
On June 18th, Benjamin Cardozo School of Law will host International Law: A Casualty in the "War on Terror'. The conference will be held at the law school at 6 pm. Prof. Gabor Rona and the law school, and Prof. Marco Sassoli of the University of Geneva will discuss the impact of current national security policies on international law.
Cardozo is located at 55 5th Avenue, NYC. The conference will be held in the 3rd Floor Lounge. A reception will follow.
You may register for the conference here.
Editors' Note: Thank you to IntLawGrrls for bringing the Cardozo conference to our attention.
Sunday, June 10, 2018
We missed these the first time around. In case you did too, get up to date now!
On May 21, the U.S. Supreme Court granted cert in Jam v. IFC, a case that will consider whether the International Finance Corporation, an arm of the World Bank, is entitled to absolute immunity. The case was brought by poor Indian fishing and farming communities whose livelihoods and health have been threatened by an ICF-funded coal-fired power plant. Earthrights International and the Stanford Supreme Court Litigation Clinic represent the communities bringing the case. More info on the case's posture is available here, with commentary on its significance from the Just Security blog here.
AND . . .
Last November, the New York Times ran an expose on U.S. Coast Guard detention and mistreatment of drug smugglers. Now, the Canadian Broadcasting Company and the Investigative Fund have updated the story with new information about these continuing abuses, which also implicate Canadian authorities in international law violations.
Thursday, June 7, 2018
Following up on reflections on the Philip Alston's Report on Extreme Poverty in the US, the National Law Center on Homelessness and Poverty issued this statement:
UN Expert’s Report on Poverty in America Highlights the Criminalization of Homelessness as Driven by
“Hatred for the Poor”
Law Center on Homelessness appreciates UN’s efforts to recognize growing problem of fining and arresting homeless persons
(June 4, 2018—Washington, D.C.) Last Friday, the top United Nations expert on poverty and human rights Philip Alston issued his official report on his mission to the United States in December 2017. In a press release issued by Alston today, he stated, “Locking up the poor precisely because they are poor, greatly exaggerating the amount of fraud in the system, shaming those who need assistance, and devising ever more obstacles to prevent people from getting needed benefits, is not a strategy to reduce or eliminate poverty. It seems driven primarily by contempt, and sometimes even by hatred for the poor, along with a ‘winner takes all’ mentality.”
“The Special Rapporteur’s report adds to a growing record of domestic and international law stating homeless persons cannot be criminalized for basic life-sustaining activities when communities provide no legal alternative,” said Maria Foscarinis, executive director of the National Law Center on Homelessness & Poverty, which submitted briefing materials and helped facilitate Alston’s visit. “Housing is a human right, and it is shameful that in a country as wealthy as ours so many people are going without a safe and decent place to live.”
“This report is the latest in a series of condemnations of the criminalization and mistreatment of homeless persons in the U.S. by international experts,” said Eric Tars, senior attorney at the National Law Center on Homelessness & Poverty. “But despite mountains of data, court rulings, and federal funding incentives, criminalization continues to increase as visible homelessness increases. No one want to see our fellow citizens living on the streets, but when will our officials implement policies that will solve the problem, not make it worse?”
Alston, the UN Special Rapporteur on Extreme Poverty & Human Rights, visited the U.S. in December 2017 and was struck by the “particular callousness” of policies that criminalize homeless persons. Through the assistance of the National Law Center on Homelessness & Poverty, the Los Angeles Community Action Network, and the Western Regional Advocacy Project, Alston toured Los Angeles’ Skid Row, where he found that “approximately 1,800 homeless individuals had access to only nine public toilets. Los Angeles failed to meet even the minimum standards the UN High Commissioner for Refugees sets for refugee camps in the Syrian Arab Republic and other emergency situations.”
The Rapporteur called for implementation of homeless bills of rights, including the Right To Rest Acts recently introduced in several state legislatures to prevent criminalization. The report states, “Homelessness on this scale is far from inevitable and reflects political choices to see the solution as law enforcement rather than adequate and accessible low-cost housing, medical treatment, psychological counseling and job training.”
The National Law Center on Homelessness & Poverty’s report, Tent City USA: The Growth of America’s Homeless Encampments and How Communities are Responding, documents a massive growth of more than 1,300 percent in the number of homeless encampments reported by the media over the past ten years. Another Law Center report, Housing Not Handcuffs: Ending the Criminalization of Homelessness in U.S. Cities, cites an increase of 69 percent in laws banning camping in public, 31 percent growth of bans on sleeping in public, 88 percent growth in bans on loitering, and 143 percent on laws banning sleeping in vehicles. Enforcement of these laws costs communities millions in police and court time and incarceration, and puts criminal records, fines, and fees in the way of homeless persons finding housing or employment and being able to exit homelessness.
The UN Special Rapporteur’s Report is available here. The report will be officially presented to the Human Rights Council at their session later this month in Geneva, Switzerland.
Wednesday, June 6, 2018
On June 5, the Office of the UN High Commissioner for Human Rights released a statement condemning the U.S. policy of separating children from their families at the U.S. border. According to the UN spokesperson, "The use of immigration detention and family separation as a deterrent runs counter to human rights standards and principles. The child’s best interest should always come first, including over migration management objectives or other administrative concerns. It is therefore of great concern that in the US migration control appears to have been prioritised over the effective care and protection of migrant children." The UN statement also noted that the U.S. is the only country "in the world" that is not a party to the UN Children's Rights Convention, and urged the U.S. to ratify the Convention.
Nikki Haley, the U.S. Ambassador to the UN, quickly responded to the statement, arguing (1) that it was hypocritical for the UN to criticize the US when other members also engage in human rights abuses, and (2) that the US, as a sovereign nation, can act with impunity when it is protecting its borders. Both of these arguments are flawed, failing to take into account the totality of actions of the UN and ignoring the ways in which international law has been incorporated domestically. In short, the administration's position, articulated by Haley, takes exceptionalism to new heights and, in the process, sends the message that no one's human rights are safe here.
First, the idea that the UN has hypocritically singled out the US for human rights criticism is absurd. In the same press statement that critiqued the US child separation policy, the High Commissioner addressed human rights violations in Egypt and Ethiopia. The day before, the High Commissioner examined human rights abuses in China. A day later, Bangladesh was the topic. The many mechanisms of the UN ensure that all countries are exposed to constructive criticism (as well as, when warranted, praise) through the Universal Periodic Review process, and by review of treaty monitoring bodies or Special Procedures. The assertion that the U.S. can never be criticized on human rights grounds because of the amount of foreign aid and financial support that it provides sounds a bit like some other positions taken by this Administration, i.e., if you're rich enough, you don't have to play by the rules.
Second, Haley's assertion that U.S. sovereignty excuses human rights violations is also misplaced. The human rights at issue here are so basic and fundamental that they transcend particular documents -- and in fact, have even been accepted by several U.S. courts as customary international law. The Universal Declaration of Human Rights, a product of Eleanor Roosevelt's leadership, states clearly that the "[t]he family is the natural and fundamental group unit of society and is entitled to protection by society and the State." Further under Article 14 of the UDHR, "Everyone has the right to seek and to enjoy in other countries asylum from persecution." Certainly, an assertion of sovereignty doesn't excuse human rights abuses against children without some showing of absolute necessity and imminent harm. There is nothing like that here. Instead, the Administration has approached the impacts on children almost casually, as John Kelly noted that the separated children might eventually be placed in foster care "or whatever." In fact, the impacts on vulnerable children separated from their parents are long-lasting and profoundly negative. How far would the Administration go to protect U.S. sovereignty under the circumstances we have here? Would the Administration assert that it's acceptable to shoot the "trespassing" children of immigrants and asylees seeking entry at the border, in order to deter the migrating adults and to protect U.S. sovereignty?
Given Haley's defense of the Administration's policy of separating children from their families, we must all ask, has human rights lost all meaning to the U.S. government?
Tuesday, June 5, 2018
To me, the most disturbing sentence in the report of the Special Rapporteur on Extreme Poverty in the US is that " the policies pursued over the past year seem deliberately designed to remove basic protections from the poorest, punish those who are not in employment and make even basic health care into a privilege to be earned rather than a right of citizenship."
Current government policies promoting poverty and cruelty do not reflect political differences unless one characterizes those policies as arising out of the politics of hate. "Conservative" and "liberal" are descriptions to be set aside. Policies that deny not only health care but fundamentally healthy conditions are designed to punish and eliminate those whose circumstances lead them to poverty. We are encountering the spiritually bankrupt.
My thought upon considering the deliberate actions of those who hate was how do we keep from circling the edges of despair?
I happened upon an interview that Oprah recently conducted with three celebrities on what gives them hope. While each of us must find our own route to spiritual survival, Stephen Colbert places his faith in biblical scriptures that warn against worry and urges staying in the present moment. Jordan Peele reflects upon the restorative impact of laughter and shares that he finds hope in viewing the US as a work in progress. And Salma Kayek Pinault finds hope in the women who are finding their voices. She sees freedom for women and men who are open to the new Times Up conversations.
Whatever gives you hope, embrace it. We are in a time where resistance is ever critical but without emotional and spiritual sustenance, hope cannot be sustained.
To read and listen to Oprah's interviews, click here.
Monday, June 4, 2018
By Cindy Soohoo
For two weeks at the end of last year, Philip Alston, the UN Special Rapporteur on Extreme Poverty criss crossed the United States, speaking to communities in Los Angeles, San Francisco, Lowndes County and Montgomery, Alabama, Charleston, West Virginia, and San Juan, Guayama and Salinas, Puerto Rico and meeting with indigenous leaders and community activists gathered at the US Human Rights Network national convening in Atlanta, Georgia. Last Friday, he issued his official report on the visit.
While the report’s findings are not surprising, they are still jarring. Almost 1 in 5 children in the United States lives in poverty. People in the United States live shorter and sicker lives than people living in countries with comparable wealth, we have the highest incarceration rates in the world, and tropical diseases like hookworm are re-emerging because of lack of public sewage in places like Lowndes County.
But perhaps more troubling than the findings is Alston’s conclusion that rather than working to eradicate poverty, government policies are actually making things worse. The Special Rapporteur loudly calls out the Trump administration’s recent $1.5 trillion tax cut, attempts to take away health insurance, and radical financial, environmental, and health and safety deregulation.
But Alston makes clear that wrongheaded government policies and attitudes towards social welfare precede the current administration: the “United States is alone among developed countries in insisting that . . . human rights . . . do not include rights that guard against dying of hunger, dying from a lack of access to affordable health care or growing up in a context of total deprivation.” Our failure to recognize social and economic rights has led to the abdication of government responsibility to provide a safety net and basic community necessities like sewage systems and clean water.
We have also failed to adequately address historic and long-standing structural discrimination which result in persistent disparities in poverty rates based on race and gender. These inequalities are compounded by the legal status of immigrants, indigenous people and the people of Puerto Rico. For these communities, lack of legal protection, recognition, and political representation exacerbate poverty and vulnerability to other human rights abuses.
In the U.S., rather than developing policies to help alleviate poverty, criminalization has been used to conceal the problem. According to Alston “[p]unishing and imprisoning the poor [has become] a distinctively American response to poverty in the twenty-first century.” The report describes criminalization of homelessness, taking away children from their parents because poverty is equated with neglect, criminalization of pregnant women suspected of substance abuse problems, and detaining poor people in jail, separating them from their families and risking their employment, because they can’t make bail. “Mass incarceration is used to make social problems temporarily invisible and to create the mirage of something having been done.” But it is a self-defeating strategy.
Alston recognizes that it is impossible to do an in-depth analysis of extreme poverty in the United States. His goal was a more modest one: to access whether the United States is living up to its human rights obligations (it’s not) and articulate important principles for reform including: decriminalizing being poor, recognizing a right to health care and reforming tax policy. But he doesn’t provide great detail about how to eliminate extreme poverty and how to gain support for anti-poverty initiatives in our current political environment.
Indeed, the report reveals a deeper dis-function in our society and democracy that may make such change more difficult. The U.S. currently has the highest income inequality in developed world, and it is only getting worse. And “[s]ince economic and political power reinforce one another,” Alston warns that “the political system will be even more vulnerable to capture by wealthy elites.” Addressing our long history of racism and inequality as well as newer problems like dislocation and lack of decent jobs in the face of globalization and changes in technology require more fundamental changes addressing who is making decisions and how.
In its recent report, the National Economic and Social Rights Initiative, emphasizes that we must rebuild democracy from the ground up and work to develop policies based on human rights values and the creation of universal and equitable social systems that meet the needs of all. Deep democracy requires wresting decision-making out of the hands of the powerful few and “community control over the agencies and institutions that shape people’s lives.” According to the report, community engagement is not only essential for democracy; it is also the best way to develop sustainable policy solutions that serve the needs of our communities.
The Special Rapporteur’s report is important and timely, but only scratches the surface of the human rights violations that many communities are facing. By starting a dialogue about the government’s obligation to end extreme poverty, I hope the report will encourage communities to speak out about the human rights violations they face and to develop and demand community-driven solutions that respect human rights values and ensure that everyone, rich and poor, can lead a safe, healthy and dignified life.
Sunday, June 3, 2018
On Friday, June 1, the UN Special Rapporteur on Extreme Poverty, Professor Philip Alston, issued the formal report on his visit to the United States. He will present these findings to the UN Human Rights Council in Geneva on June 21, 2018.
Bringing together the Rapporteur's personal observations and conversations during his official visit to the U.S., along with the many submissions that he received from civil society, and information developed and collated by his own team, the report presents a damning picture of the U.S. failure to address extreme poverty and the human consequences of policies that continue to go in the wrong direction.
Alston elaborated on his report, and the Rapporteur process, in an in-depth interview in the LA Times. International outlets also picked up the story, with articles in the Japan Times and the Guardian, among others. Alston's twitter feed provides updates as more news media picks up on the story.
What can individual law profs do? One member of my faculty circulated the report to all members of the faculty. Send the link out in your own twitter feed, blog about it, write an op ed, send the link to your congressional and local representatives. The days leading up to the Special Rapporteur's Geneva appearance on June 21 provide an important window for human rights education and activism toward addressing extreme poverty and inequality in the U.S.
During the next few weeks, this blog will be running a number of commentaries on the Special Rapporteur's report. Stay tuned and stay engaged!
Thursday, May 31, 2018
Prof. Justine Dunlap has been following the Larry Nassar case. She reports on the settlement between MSU and Nassar's victims.
Michigan State University recently entered into a $500 million settlement with Larry Nassar’s victim/survivors. Of that amount, $425 million goes to the plaintiffs and $75 million is reserved for future claimants. The $425 million will be placed in a fund from which costs and lawyers’ fees will be extracted. Then a determination will be made as to how much each of the 332 survivors will receive; the range of payments is said to be between $250,000 and $2.5 million.
The settlement sum has drawn much attention. Naturally, it has been contrasted with the $100+ million paid out by Penn State University for the victims of Jerry Sandusky’s crimes. In that case, however, there were only a small fraction of the number of victims—approximately 10% of number that are present in the Nassar case.
Further, the anticipated settlement was central to Moody’s downgrade of MSU’s long-term bond rating in early May. Moody’s rationale was that the agreement—the mediation of which was then ongoing—could result in significant “financial ramification” to the university. Moody’s noted that the increased financial risk from Nassar-related pending lawsuits would involve “ongoing legal costs and university investment into enhanced risk management and governance issues increasing costs.”
MSU’s legal costs have not been cheap. More than a year ago, the university paid Skadden Arps attorney Patrick Fitzgerald $990 per hour for his investigation of how the university handled the matter. In the present settlement mediation, MSU was represented by Robert Young, Jr., a former Michigan Supreme Court justice, for the hourly rate $640. A veritable bargain by comparison.
How MSU will finance the settlement remains unclear. MSU interim president John Engler indicted in a statement released the day after the settlement that the university’s insurers were involved in the process and he anticipated that they would honor their contractual obligations. But even if they do, that amount won’t cover the costs. And what about state money? The $500 million price tag is almost double what the school receives from the state annually (that sum is $281). Engler, a former Michigan governor, said that he would not seek additional funds from the state to satisfy the settlement. Legislators have also made clear that they would not support such a request.
The settlement is about more than the money that the survivors (and lawyers) will receive. It is, one hopes, a further step in resolution, coming less than four months after Nassar was sentenced to 40-125 years in prison. A resolution to a case that was 20 years in the making, as Nassar’s crimes were first reported in the late 1990s. It remains to be seen whether it is also a real step in either institutional or legal reform.
On those counts, whether real change is happening at the university remains a matter of opinion. The university touts, as surely it must, all that it has done and is continuing to do. Much of the information on the President’s page of the school’s website has to do with its post-Nassar initiatives. On the other hand, other groups, such as Reclaim MSU, assert the University’s recent steps are a continuation of the problem that failed to stop Nassar 20 years ago.
As to legislative reform, the state legislature is considering legal changes, including alterations in the applicable statutes of limitations and the stripping of immunity from state actors who knew but did not act. Of course, time will tell what legislative changes are wrought. More significantly, time will tell whether any legislative changes made were ones that actually matter.
Wednesday, May 30, 2018
Prof. Martha Davis sends along this post from Bonnie Smith, Northeastern Law School LLM '18.
The United States (U.S.) prides itself as a developed nation and world economic leader. If this is accurate and “Americans Are Winning ” as voiced by Donald J. Trump, then why are millions living without access to water or in jeopardy of a water shut-off in cities across America? The reality is an estimated 1.8 million people lack access to water in the U.S. Another almost 14 million households already struggle to afford water … and an additional 27.18 million could soon face the threat of or actual water utility shutoff. By 2022, it is estimated that more than one-third of all U.S. households - 35.6 percent - will be unable to afford running water. Unaffordable water plagues urban cities and rural communities. While the great majority of families facing this crisis are people of color, predominantly white communities are facing this crisis as well. The only common denominator between them is that water is unaffordable and deprivation of water consistently and aggressively impacts low income households where many are living, or existing, in conditions which are at-par-with or below the conditions facing individuals in developing nations. People in the U.S. are being deprived of their human right to water.
The current federal administration is complicit in this human rights deprivation as they are not working with U.S. state and local governments to ensure non-discriminatory practices toward low-income public water utility customers. This administration appears to do nothing at all to continue any progress made during the Obama administration, instead seeking to dismantle the federal government's increased role in water protections by ([initiating proposed cuts in] the U.S. Environmental Protection Agency's (EPA) budget and ignoring the needs of communities plagued with water affordability problems.
The water affordability problem has existed in the U.S. for decades but today the nation’s crumbling infrastructure, coupled with ill-considered policy decisions, are the root cause of the U.S. water crisis. These factors have stunted the ability of U.S. cities to realize solutions for water access concerns. The U.S., by ignoring and allowing the water affordability challenge to persist within its borders, has essentially fostered the development of underdevelopment. Only California and Michigan have declared access to water to be a human right. In all other states, the only ray of hope has come from city governments, non-profit advocacy groups and community members, themselves, who have created awareness and given this crisis an identity. These city governments must align with state governments to take federal government agencies, like the EPA, to task and demand immediate action by way of dedicated federal funding to provide for immediate infrastructure updates and funding to underwrite water affordability programs. Without collective collaboration, there is no doubt the current water affordability crisis will continue to grow and work its way into more U.S. cities.
The U.S. federal government must play a critical role in the human right to water. First, the federal government must consistently and uniformly recognize the right to water and water access as a human right. Next, the federal government must ensure there is safe clean water and also access to running water. It cannot be one or the other. These principles are linked and it would lead to catastrophe if either were ignored. The federal government must act like a leader and provide legislation that will support the right to water for all, without discrimination. The federal government must also collaborate with state and local government and listen to their input to understand exactly how the federal government can support them. In turn, state and local governments must allow the local community to speak about their experiences and economic inabilities to prevent the introduction of future water utility rate adjustments that customers cannot adhere to and instead, allow for prudent affordability plans. A resource as vital as water is an essential for life and no community, regardless of their income or racial make-up, should ever be denied their right to water.
Tuesday, May 29, 2018
Freedom of speech is the disguise behind which racism, misogyny and other forms of hate flourish. Without regard for professional and educational standards, businesses and universities refuse to intervene when speech is used to oppress. What may be permitted to say in public discourse has its limitations in workplace and educational institutions. But leadership in both arenas often refuse to confront hate speech and are supported in the workplace by employment cases that historically have tolerated high levels of hate before declaring an environment a hostile one. Flawed law does not justify racism and other hate in the workplace.
Now the NFL is flipping freedom of speech to block peaceful protest. Players who wish to engage in silent protest during the national anthem must do so off the field or risk being fined. While technically it is the teams that will be fined, owners are permitted to pass the penalties through to protesting players.
Freedom of speech gives every appearance of shapeshifting to accommodate the bullies. There is little in the way of institutional leadership protecting vulnerable populations locally or nationally. Those players who are forced to endure shocking levels of racism before a hostile work environment is declared, cannot themselves make peaceful, silent declarations against that racism without risking penalty. This hypocrisy goes beyond Jim Crow and emits the scent of slavery.
It would be self-defeating economically, but powerful demonstratively, if every black football player stayed in the locker rooms and refused to emerge until the rule is overturned. But that would once again place the burden of response on the victimized. It is the white players and fans who need to take a stand against racism and for freedom of speech.
Permitting through silence the manipulation of freedom of speech to accommodate the haters places our democracy in greater jeopardy and our silence makes us complicit.
Monday, May 28, 2018
Between October and December 2017, the U.S. Office of Refugee Resettlement (ORR) was assigned to check in on the more than 7000 children supposedly placed with a sponsor or guardian. The result? Almost 20% of the children who arrived unaccompanied at the border -- are missing.
One might think that the government would be concerned. But no. According to Steve Wagner of the US Department of Health and Human Services, the government isn't responsible for these children once they're released from government care and placed with private sponsors, even though the placement was made by the U.S. government.
A state government similarly washed its hands of responsibility for a vulnerable child in the 1989 Supreme Court case of Deshaney v. Winnebago County. There, the state of Wisconsin was well aware of dangers that Joshua Deshaney faced when he was placed in the custody of his violent and abusive father. Joshua was beaten to the point of brain damage, falling into a coma from which he never emerged. Joshua and his biological mother sued, but the majority of the U.S. Supreme Court concluded that the state bore no responsibility, despite that fact that the state's order had resulted in the placement and the state had failed to act when social workers noted dangerous conditions in the home and indications of the father's abuse.
In one of the more famous dissents in the annals of 20th century Supreme Court jurisprudence, Justice Harry Blackmun lamented the boy's fate. "Poor Joshua," he exclaimed, and argued that legal rigor must include some room for compassion.
In asserting that the U.S. government bears no responsibility for missing immigrant children, the government appears to be relying on the precedent of the Deshaney case, which has since been reinforced in Castle Rock v. Gonzales; there, the U.S. Supreme Court held that a state was not culpable for its failure to enforce a protective order, with tragic results.
But the U.S. government's confidence may be misplaced. There are several ways in which a legal challenge to ORR's practices could be distinguished from Deshaney. First, the loss of nearly 1500 children constitutes a widespread policy failure tantamount to affirmative state action, not the more isolated acts of discretion-gone-wrong raised in prior cases. Second, if any of these children were separated from their parents at the border, the government's actions are interventions that place children in a worse situation vis-a-vis familial care; this is quite distinct from the position argued in Deshaney that Joshua, placed with his father, was no worse off because of government involvement, or the argument in Castle Rock that the order of protection did not change the underlying situation . Third, because both the children and their parents in these cases are undocumented immigrants, they have no choice but to place singular reliance on the government. In the vast majority of jurisdictions (and under federal law), the affected individuals have no access to counsel and no ability to structure alternative arrangements or challenge the government's decisions in real time. In Gonzales, the Court suggested that the holder of the protective order might have taken alternative steps to secure protection; the same cannot be said of vulnerable immigrant children.
It would be foolhardy to predict that the current Supreme Court will follow Justice Blackmun's dissent should a challenge to this practice reach the Court. Yet, there must be some constitutional limit to government impunity for affirmative actions that harm children -- not only by making them vulnerable to trafficking, but also by subjecting them to trauma and, in some cases, the torture of family separation. Justice Blackman's anguished cry, "Poor Joshua!" stands as a moral rebuke to policies that ignore the impacts of government actions.
But "Poor Joshua!" is also a rallying cry that reminds us of the stakes. Brain damage in the Deshaney case; three girls killed in Castle Rock; 1500 vulnerable immigrant children missing, according to today's news. Someday, governments will be held legally as well as morally responsible for such policies.
Sunday, May 27, 2018
By Irene Sharf, Prof. of Law, UMass Law School, guest editor
In Federal District Court in Boston on May 22, 2018, federal agents, responding to pointed questioning by Judge Mark Wolf, claimed that they had halted their controversial practice of arresting undocumented immigrants who present themselves to government offices while in the course of applying to regularize their immigration status. The Boston ICE field office acting director, Thomas Brophy, told the judge that the practice had occurred under his predecessor, but that, in February when he took over, he eliminated it. An ICE spokesman would not clarify whether this was a local or a nationwide change in the Trump Administration’s policy targeting immigrants.
A May 22, 2018 article in the Boston Globe (Maria Cramer) Federal judges in Boston are often sharply critical of ICE tactics), highlighted the criticism to which ICE has recently been subject by Boston’s federal judges. This criticism was made, for example, after the January 2018 ICE arrests of seven people at immigration offices in Massachusetts and Rhode Island, often immediately after they completed interviews with the office that processes applications for legal residency, USCIS (U.S. Citizenship and Information Services).
In early April, the ACLU filed a lawsuit challenging these recent arrests. The case, Calderon v. Nielsen, seems to have had a significant effect that should benefit immigrants in the New England region. The case challenges the Administration’s policy of “detain and remove,” in operation in Lilian Calderon’s case. A mother of two, she was detained by ICE agents at the USCIS offices in Rhode Island, where she and her United States citizen husband had appeared for an interview to process her application for legalization through their marriage. Lilian was brought to the U.S. as a three year-old without authorization; she has been subject to deportation since her teens, when her father lost his bid for political asylum. After their in-person interview in the USCIS office, which apparently went well, ICE agents took her into federal custody, where she remained for weeks, until the ACLU’s class action lawsuit.
The ACLU launched several objections to the policy, challenging it based on constitutional grounds that it violates the due process and equal protection clauses of the United States Constitution. The case, brought against the Trump administration and ICE on behalf of the Calderons and several other area families, adds to the ongoing and often successful litigation against this Administration, whose continued attacks against immigrants have not been particularly successful to date when challenged in court.
This “detain and remove” policy pits one arm of the U.S. government, USCIS, against another arm of the government, ICE, whose officers hover outside the USCIS offices as it conducts its interviews. For people like Lilian to get legal status, she must attend an interview at the USCIS office. But, once there, President Trump’s Administration is seeing to it that some applicants are arrested and placed into custody.
This tactic is likely a poorly-veiled attempt to discourage those in legitimate marriages with U.S. citizens from applying for the benefits to which they are entitled. It is also likely that, as a result of the policy, whose continued existence is now in question, many thousands will delay filing their applications, fail to file, or fear appearing at their interviews and have their applications denied.
The ACLU’s specific charges against this policy is that it violates the law by ignoring USCIS regulations that permit applicants like Lilian to stay in the U.S. while their applications are being processed. Additionally, the challenges reflect those made against the Administration’s failed attempts to cancel the DACA program last September, when Attorney General Sessions announced its imminent end. That announcement was immediately challenged through several lawsuits, including by state attorneys general. These lawsuits have so far been notably successful. Three federal district courts (California, New York, and the District of Columbia) enjoined the Administration’s plans to terminate the program in March. The case is on review by the Ninth Circuit Court of Appeals. And, on April 24, a judge for the District Court for the District of Columbia ruled that the Trump administration must accept new DACA applications, staying his decision for 90 days to allow the DHS to explain why it was rescinding the program.
The DACA rescission challenges are based on claims of equitable estoppel, due process violations, and unequal protection, all seemingly providing inspiration for the Calderon litigation. These arguments can be used in the Calderon case, as these married couples relied on the regulatory and legal scheme of U.S. law that, once married, they could remain safely in the U.S. while their applications for legal status based were being adjudicated. Having one branch of the government “invite” applicants to come to interviews only to have another branch arrest them when the interview is over represents a complete breach of faith in the U.S. legal system.
Additionally, the ACLU’s equal protection claims reflect those raised in ongoing challenges to the President’s Travel Ban, that it was inspired by the President’s racial animus against non-“white-skinned” people. Cited reports that Trump prefers immigrants from Norway, a largely “white-skinned” nation, have been submitted, along with other proof, to establish his use of racial animus to develop these policies. The arguments have also been largely successful to date, reflected at recent U.S. Supreme Court arguments.
In the case of the Calderons and others, the government has set a trap for people who are following the law, regulations, and existing practice. While USCIS claims it did not coordinate with ICE in these arrests, each is nonetheless an arm of the same federal department, the Department of Homeland Security; the arrests are likely to be found to have originated from the same office.
Thursday, May 24, 2018
A democracy cannot sustain itself when millions live in extreme poverty. UN Rapporteur for Extreme Poverty and Human Rights Philip Alston is expected to release his report in early June, having conducted a tour of the United States. As reported in a December Guardian article, one question to be answered is whether " it is possible, in one of the worlds leading democracies, to enjoy fundamental human rights such as political participation or voting rights if you are unable to meet basic living standards, let alone engage... in the pursuit of happiness."
Mr. Alston can bring a holistic perspective to the failures on both the state and federal levels. As Martha Davis noted in the Guardian article, there is a lot that Philip Alston can say about basic inequality that goes to the heart of the rights that he is reviewing.
Mr. Alston's preliminary findings found some pockets of support in communities that took it upon themselves to assist the poor, but primarily US policies work against aiding those in poverty and result in limitations on social mobility. We have been warned for decades about the growing gap between the rich and poor. We anticipate Mr. Alston's report will clarify some root causes of the gap and subsequent denial of human rights that conditions of extreme poverty promote.
This blog intends to present a series on the Rapporteur's report upon its release.
Wednesday, May 23, 2018
The separation of families at our borders is horrific and inflicts multiple traumas on already traumatized people. Even more distressing is the abuse of unaccompanied minors. Many find the topic too distressing to discuss. But the abuse of unaccompanied minors has been examined by the University of Chicago's International Human Rights Clinic along with the ACLU's Border Litigation Project. The partners have issued a report entitled Neglect and Abuse by Unaccompanied Minors by US Customs and Border Protection.
Documenting both abuse of children, ages 5 to 17, and the failure of authorities to investigate complaints, a partial findings are: 25% of the children reported physical and sexual abuse; physical abuse included the use of stress positions, as well as beatings by Border Patrol Agents. Have reported verbal abuse including death threats. Eighty percent reported inadequate food and water.
The report documents many additional indignities including unsanitary conditions that place the minors in holding areas filled with conditions dangerous to their health, such as overflowing sewerage. While the report is disturbing to read, the provided information and the exposure of the brutal treatment of children is critical if there is to be any hope in creating change. Further information can be obtained at the ACLU website.
Kudos to Chicago's IHR clinic students.
Tuesday, May 22, 2018
In 2015 Pete Hoekstra lied. He said that the Islamic movement was causing chaos in Europe and was responsible for burning politicians and cars in the Netherlands. Hoekstra acnowledged that this report was fake news. Now Hoekstra is the US ambassador to the Netherlands and on his first day on the job he did his best to avoid reporters' questions. But members of the press responded "This is the Netherlands, you have to answer questions." Having repeatedly been asked to retract his 2015 statements, Hoekstra ignored the questions. A video of the exchange may be watched here. Hoekstra was born in the Netherlands and in the US became a republican member of congress. Hoekstra wishes to work on strong relations between the Netherlands and the US. More fake news?
By contrast, US Ambassador to Panama, John Feely, quit his position, and wrote an op-ed explaining that the president had warped traditional values. It is unlikely we will see such a denoument in the Netherlands.