Friday, June 16, 2017
The 2017 International Human Rights Clinicial Conference was hosted by Cornell Law School in Ithaca, N.Y. In April 28 and April 29th of this year. A working group consisting of Sital Kalantry, Elizabeth Brundige, Sandra Babcock, Sarah Knuckey, Jayne Huckerby, and Sarah Paoletti drafted a statement in response to the events we are witnessing in the United States
today. Participants of the conference discussed and revised the statements in small groups. Based on the feedback of the conference participants, the working group revised and finalized the statement. While the statement reflects the position of human rights clinicians and people who operate centers, we have opened it up for signature to anyone who supports the content of the statement.
The statement begins:
"We are law school educators who teach in clinics and operate centers and institutes that work with and on behalf of individuals, organizations, and communities to promote human rights. We believe in the inherent dignity and equality of all human beings. We are deeply concerned that the recent rhetoric and actions of many leaders in the United States government are harming people and damaging decades of effort and progress in promoting respect for human rights."
The statement goes on to list commitments by the signatories to preserve and promote human rights globally as well as within the US.
For example the educators pledge to "promoting the values that inspired the Universal Declaration of Human Rights and the rights and obligations set forth in international human rights treaties."
To read the full statement or to sign on, click here.
Monday, June 5, 2017
Much discussion among judges and lawyers these days is devoted to access to justice. The growing divide in the US between those with resources and those without is particularly apparent in access to legal services. Hourly billing at rates of $400.00 and up are unaffordable even for those previously considered middle class. In many cases, Judges report litigants self-representing in up to 80% of cases that involve family law and housing. More and more of those in need of legal services to protect basic human needs are unable to find legal help. Particularly hard pressed are those who do not qualify for help from Legal Services organizations and those who do not have funds for significant retainers.
Addressing the need for affordable legal services is part of the education of human rights lawyers. When viewed through a human rights lens, adjusting ones practice to provide low cost, yet competent representation, permits clients to secure the principles voiced in the Universal Declaration of Human Rights.
The ability to make a living while protecting clients' human rights must be incorporated into legal education. Technology permits lawyers to reduce overhead in many ways, including the ability to work from home and renting a conference room as needed. Technology also broadens the geographical range one can build a client base, now that video conferencing is routine. Technology has made the delivery of services to those of limited means a realistic option. One way to create Human Rights lawyers is to show students and new graduates how to have a practice that will address crucial human rights and sustain them financially. Bill Henderson and others have written extensively on changing the delivery of legal services. His arguments and advice also support human rights lawyering.
Thursday, May 25, 2017
Editors' Note: Guest blogger Prof. Ariel Dulitzsy and graduate fellow Scott Squires describe their successful efforts to request that CERD investigate the impact of the proposed border wall on indigenous people.
In a letter issued May 17, the UN Committee on the Elimination of Racial Discrimination asked that the U.S. Government provide information on the Trump administration’s expansion of the border wall and its effects on indigenous peoples living along the U.S.-Mexico border.
Under its early warning and urgent action procedure, CERD requested that the U.S. provide the information to address concerns that the expansion of the wall—as outlined in the Trump Administration’s executive order issued January 25th —will discriminate against indigenous groups living in the border region.
Specifically, the letter asked that the U.S. Government provide information regarding the impact of the executive order on indigenous peoples’ rights to access their land and resources, ways in which the government plans to limit the adverse effects of the wall on those people’s rights, and measures taken by the U.S. Government to ensure the free prior and informed consent of those peoples in decisions affecting them.
CERD submitted the letter after the University of Texas at Austin School of Law’s Human Rights Clinic requested last February that the Committee re-consider the situation of indigenous and poor Latino communities along the US-Mexico border in light of the executive order. The Clinic, Dr. Margo Tamez (Lipan Apache Band of Texas) and the Lipan Apache Women Defense, an Indigenous Peoples’ Organization initially submitted a complaint to CERD in 2013 alleging the discriminatory impacts that wall would have on the Kikapoo, Ysleta del Sur Pueblo and Lipan Apache communities living along Texas’ border with Mexico. CERD, at that time, was concerned that the border wall has been constructed without the free, prior and informed consent of the affected communities.
The wall’s discriminatory effects on those groups have not been remediated, according to the Committee. And because Trump’s executive order intends to expand the wall along the entirety of the U.S.-Mexico border, CERD is now concerned that the construction of the wall will more broadly “hinder the full enjoyment” of the rights of indigenous peoples living in the border region.
The U.S. Government has until July 17, 2017 to respond to the request.
Monday, May 15, 2017
by JoAnn Kamuf Ward, Columbia Law School Human Rights Institute
In the wake of the U.S. failure to appear at the Inter-American hearings on the U.S. in March, human rights advocates, scholars, and a number of journalists tried to read the tea leaves to determine the significance of this move for U.S. human rights engagement globally and regionally. Of course, the implications of the United States’ direct engagement with human rights institutions (or lack thereof), can’t be viewed in isolation from whether and how U.S. dollars flow towards these institutions, or divorced from how U.S. foreign policy prerogatives impact human rights globally. But U.S. engagement and public positions offer important starting points for advocacy to strengthen human rights protections.
As Louis Henkin aptly noted in 1979, the United States has historically been “more like a flying buttress than a pillar” in the cathedral of human rights. Yet, these days, the U.S. appears to be chipping away at the foundation.
Of course, even when past Administrations articulated human rights as a foundation of U.S. policy, the reality at home and abroad has often significantly deviated from the rhetoric employed. U.S. human rights advocates have been among the chorus of voices consistently urging the United States to prioritize human rights in global engagement and domestic policymaking. Under the Obama Administration, progress was made in strengthening engagement with the United Nations and the Inter-American Commission, premised on the belief that representative democracies, along with “respect for human rights and civil society, and independent judiciaries and the rule of law,” are important foundations for human progress, and principles to which the United States was committed, at home and abroad.
While they have certainly been imperfect and under-realized, past presidential administrations’ commitments to human rights have provided an important grounding for advocacy. These commitments signaled that human rights were priorities to be advanced consistently and progressively over time. Such commitments also provided a starting point to hold the U.S. accountable to the ideals it espoused, and indicated dedication to the institutions that monitor and implement human rights. They offered a common language and opened up spaces for civil society dialogue.
But today, the common ground of human rights has all but disappeared. Even a veneer that human rights matter seems to have fallen away. This should not be surprising given the egregious policies this Administration has rolled out at home. Communities of color have been targeted with particular vehemence, but the safeguards in place to preserve the environment, meet fundamental needs like health and housing, and protect the basic civil rights of all of us are under assault. The Administration’s frontal attacks on human rights domestically, as well as beyond our borders are being tracked here in real time.
In this moment, we must continue to fight against efforts to sideline and ignore human rights. We must ensure that this Administration, the State Department, the White House, federal agencies, and Congress understand their human rights obligations, and we must demand that human rights are put into practice.
In one step in this direction, 50 U.S. human and civil rights organizations and individuals sent a letter to Secretary Tillerson last week, calling on the United States to prioritize U.S. leadership on human rights in its engagement with Inter-American Human Rights System and the OAS. Responding to the U.S. failure to appear at the March hearings, the letter emphasizes that leadership requires constructive U.S. participation in Inter-American proceedings, with the ultimate aim of bringing U.S. policies in line with international and regional human rights commitments. It highlights, as well, the need for ongoing U.S. resources and support for the Inter-American Commission and the OAS.
The upcoming June OAS General Assembly and the forthcoming IACHR periods of sessions are opportunities for the U.S. to demonstrate, and commit to, human rights. The world will be watching.
Tuesday, April 11, 2017
While much discussion centers on the need for trauma based interviewing and advocacy, insufficient discussion addresses the trauma experienced by advocates for those whose human rights are violated.
A new blog series brings awareness to the mental health risks that human rights advocates face. "Resilience as resistance: Mental Health and well-being in human rights work" introduces the topic:
"The mental health and well-being of advocates has often been neglected by human rights organizations, funders, and advocates themselves. Recently, however, activists and mental health professionals have begun giving the issue more attention, exploring what risks advocates face and how they might be mitigated. Human rights organizations increasingly want to bolster the resilience and creativity of their staff and constituents. Defenders increasingly see their own well-being as an imperative for sustainable movements."
An early post was written by Meg Satterthwaite, of NYU's Human Rights Institute. Evidence of trauma: The impact of human rights work on advocates is an excellent discussion of the need for addressing front line trauma based upon evidence based research. In Sattherthwaite's report are findings from a study showing a high rate of PTSD among those who engage the work. These posts are recommended for all engaged in human rights advocacy. Often, we are deep into trauma before we recognize its impact on ourselves and those with whom we work. Recognizing early warning signs may be the best education we can provide to our students and others beginning to engage with human rights advocacy.
Here is a wonderful list of resources for staying healthy, brought to you by Windcall Institute.
Wednesday, February 8, 2017
There are signs that President Trump is right. He will make America great again.
For the first time in decades, Americans have revived the art of demonstration and protest. The Women's march brought out an estimated 5 million demonstrators worldwide. The demonstrations have empowered others to protest.
Since then, there have been daily protests triggered by the President's immigration executive orders. Other actions have been successful. Women messaged Nordstrom that they would no longer shop at the chain because the store sold Ivanka Trump products. The store announced that it will no longer sell Trump goods due to declining sales. (In further evidence that everything is personal with this president, he tweeted the unfairness of Nordstrom's decision.)
Protesters stopped using Uber because its CEO, Travis Kalanick, agreed to be part of Trump's economic advisory council. Employees challenged Kalanick, asking what it would take for him to leave the advisory council. Apparently, it took over 200,000 customers deleting their Uber accounts while New York taxi drivers advertised Uber's connections to Trump. Uber drivers, particularly immigrant drivers, made known their unhappiness while Uber's competitor, Lyft, pledged to donate $1,000,000 to the ACLU.
Many Americans are waking up to preserve democracy. Despite the accepted belief that politicians lie, many are unwilling to accept "alternative facts" and hate mongering.
Judges entered temporary restraining orders, barring implementation of Trump's immigration executive orders, the latest one entering a national ban on the travel ban.
So for now, many Americans have risen to the crisis. That has made America great again.
Here is the challenge. Americans have responded to crisis - to the outrageous and the dramatic. Will they sustain activism when the dramatic subsides and the constitutional threats are more subtle?
Tuesday, January 31, 2017
Risa Kaufman & JoAnn Kamuf Ward, Columbia Law School Human Rights Institute
State and local officials can be a bulwark against the Trump administration’s efforts to undermine human rights. Their potential was on full display during Trump’s first weeks in office.
With immigrants as his prime target, President Trump signed a sweeping executive order temporarily suspending refugee admissions, indefinitely banning refugee admissions from Syria, and imposing severe restrictions for 90-days on immigration from seven Muslim-majority countries. Earlier, he issued an order to begin construction on a border wall between the U.S. and Mexico and ramp up immigration enforcement within the United States. For those “sanctuary jurisdictions” that resist this crack down on their residents by limiting cooperation with federal authorities on immigration enforcement, Trump ordered withholding of federal funding, thus carrying out a promise made on the campaign trail.
In the midst of these assaults on human rights, we’ve seen massive nation-wide organizing and public protests, remarkable collaboration to develop swift legal challenges, and courageous resistance and dissent from within the federal government. State and local officials from many jurisdictions are stepping in and stepping up, as well, vowing to protect local communities.
State and local efforts to protect human rights, particularly in the context of immigration, are not new. In recent years, sanctuary jurisdictions have emerged as a response to the over-enforcement of draconian federal immigration restrictions which separate families and disrupt lives and livelihoods. New York, Seattle, Boston, Los Angeles, Philadelphia, Chicago, and Washington, D.C. are among the 39 cities that have declared that they will not share information with federal authorities on immigration status or turn their citizens over to federal immigration authorities for minor infractions. Four states (California, Connecticut, Vermont, and Rhode Island) and hundreds of counties make up the ranks, as well. Jurisdictions take wide ranging and differing approaches to their sanctuary policies. What they share, however, is a principled commitment to keeping immigrant communities safe and to ensuring equal treatment of individuals.
In this new era, the stakes are increasingly high. Indeed, in the wake of the executive order threatening loss of funding, some sanctuary jurisdictions are rethinking their approach. Miami-Dade’s mayor ordered county jails to comply with federal immigration detention requests, citing the over 300 million dollars of federal funding at stake.
But others are standing firm. New York Mayor Bill De Blasio vowed to prioritize city policies that foster positive ties between law enforcement and immigrant communities. And he suggested that the City would sue the federal government if it withholds funding pursuant to the new executive order. Boston Mayor Marty Walsh said that Boston would not be intimidated by threatened federal cuts. New York State Attorney General Eric Schneiderman issued a guidance for local authorities on how to limit participation in immigration enforcement, and suggested model sanctuary provisions. California’s Governor Jerry Brown, too, has spoken out strongly about his state’s commitment to “defend everybody – every man, woman and child – who has come here for a better life and has contributed to the well-being of our state."
Other examples of state and local resistance to the Trump agenda have emerged. In response to the January 27th executive order halting refugee admissions and imposing a 90-day ban on entry of immigrants from seven Muslim-majority countries, sixteen state Attorney’s General issued a joint statement condemning the order as "unconstitutional, un-American and unlawful," and vowing to challenge the order in court. As of this writing, the Governor and Attorney General of Washington announced plans to file broad-based litigation seeking to invalidate the order, and the Attorney General of Massachusetts announced the intention to join in litigation brought by the ACLU.
The emergence of vocal state and local leaders, speaking out for foundational human rights principles of equality and non-discrimination, regardless of citizenship status, illustrates the critical role that state and local governments play in safeguarding human rights, particularly where the federal government fails to do so. Notably, a number of sanctuary jurisdictions have also made express commitments to promote and protect human rights. Boston and Seattle are among the eleven self-proclaimed “Human Rights Cities” in the United States – a number that continues to grow. Los Angeles and San Francisco have enacted ordinances based explicitly on international human rights treaties. Chicago has likewise committed to address domestic violence and children’s rights as human rights issues. Add to these examples innovative efforts by mayors, legislatures, and state and local agencies across the United States to incorporate human rights into local law and policy.
As these actions by mayors, governors, and Attorneys Generals illustrate, human rights do, indeed, begin in small places, close to home. And state and local officials will have an increasingly vital role to play in ensuring that the United States protects and respects human rights in the age of Trump.
Monday, December 19, 2016
Editor's note: Prof. Francisco Rivera guest blogs to give us a first-hand account of bringing the Human Right City resolution to Mountain View, CA.
As Martha Davis posted, the City Council of Mountain View, CA passed a resolution last week adopting the UN Universal Declaration of Human Rights as guiding principles and designating Mountain View as a Human Rights City. Students in the International Human Rights Clinic at Santa Clara Law provided technical assistance to the city throughout the process. Ultimately, as Martha mentioned, the resolution passed, but not unanimously. In the clinic’s press release, we highlighted positive comments from the mayor and other councilmembers who voted in favor of the resolution. What we did not mention were the comments from the two councilmembers who voted against it. I think it is important for us to become familiar with those arguments so that we can be better prepared to address them.
A video recording of the City Council’s session can be accessed here, with the relevant discussion taking place from the 4hr 31min mark through the 5hr 28min mark.
Consider the following exchange between Councilmember John Inks and Councilmember Ken Rosenberg (the person primarily responsible for this resolution):
- Councilmember Inks: “I guess I am biased by my American history and the principles that we have in this country, which are based on liberty and freedom, including economic freedom. […] This resolution […] is a springboard for a UN-style sort of governance and economic policy. […] Basically it is a manifesto for socialism, as opposed to the American tradition, which is based on constitutional principles, rule of law, economic liberty, and personal freedom, and not what is in the UN document (the UDHR).”
- Councilmember Rosenberg: “Are you saying this (the UDHR and the resolution) subverts our laws?”
- Councilmember Inks: “It is contrary to American tradition.”
- Councilmember Rosenberg: “American tradition supports human rights.”
- Councilmember Inks: “Ultimately, the UN principles get down to designing the desired political system, which is a socialist system, so I won’t be supporting the resolution.”
The frustration on Councilmember Rosenberg’s face was unmistakable.
Councilmember (and former mayor) John McAlister also voted against the resolution. He said, “This UN deal […] for me, it’s too much. There could be some unknowns in there, and I have a feeling this could come bite us in the rear end sometime. […] I will not be supporting the idea of becoming a Human Rights City, but I would be willing to recommend that we consider implementing some framework –not necessarily a human rights framework – but a policy that incorporates human dignity and respect for all.”
For me, these exchanges highlight how the human rights message is often misunderstood, particularly by those in government. We must do better to address these misconceptions. In response to similar concerns raised by the City Council and by the Human Relations Commission, our students prepared a FAQs document on Human Rights Cities. Maybe we should collectively engage in similar efforts to frame responses to common criticisms of the applicability and relevance of the human rights framework in the US.
Sunday, August 28, 2016
Go to Laurence Tribe’s Twitter site and you will read the famous constitutional professor’s byline: "Descartes last words: I think not."
Apparently Prof. Tribe was not thinking when he made this recent twitter post: I have notes of when Trump phoned me for legal advice in 1996. I'm now figuring out whether our talk was privileged.
Really? @trump_democrat does not disclose if the writer is a lawyer, however the author’s response seems to summarize the concern quite nicely. “You just said for legal advice. Sounds privileged to me.” Well, almost.
Before I discuss the reasons why Prof. Tribe might better have restrained himself from making this particular post, let me address a fundamental ethics misunderstanding. The communication between Prof. Tribe and Mr. Trump was not privileged. The communication was confidential. Privilege applies during a hearing before a tribunal or other process to which a lawyer may be subpoenaed. Otherwise the communication is confidential. Now that I have the annoyance of a professor teaching Professional Responsibility out of the way, let’s get to the real issue.
Unless in Prof. Tribe’s notes there is a release from Mr. Trump acknowledging that the telephone consult was not confidential, or Mr. Trump gave permission for the current disclosure, yes- the information is confidential. Is the fact that Mr. Trump contacted Prof. Tribe in the first instance confidential? In most cases yes, and definitely in this case. I am curious why Mr. Trump would need the advice of a constitutional scholar. If the call was made to a construction law expert, the communication would not create any ripples. Are you at least a bit inquisitive? Are some of you speculating? That is why this information should be confidential. And under any circumstances, the notes are confidential. ABA Model Rules of Professional Conduct Rule 1. 18 (b): Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information (the stated exceptions do not apply in this case). (Mass. Rule 1.6 addresses confidentiality).
Making matters worse from an integrity prospective, Prof. Tribe later tweeted: I did wonder whether disclosing my notes of that call would be improper, thought that raising that question in a tweet might help me think the issue through, decided that it wouldn’t be improper in any technical sense but concluded that I wouldn’t disclose the notes in any event. People who doubt the propriety of my even having mentioned that Mr. Trump sought my counsel assume that the very fact of his call was some kind of secret. I don’t know for sure, but I have no reason to doubt that he let others know that he was calling me.j
In other words, I don’t think I violated ethics, because I am guessing that Donald Trump told others that he called me, making the fact of the call not confidential. I am guessing that Prof. Tribe just jumped further into the proverbial ethics fire.
It is unfortunate that Prof. Tribe's response mimics Mr. Trump's favored approach – denial and supposition. So much better would have been a response that he may have acted too quickly and would have done well to walk down the hall and consult a legal ethics professor prior to writing the post.
Earlier, Attorney Thomas Wells of New Jersey, wrote a Huffington Post piece that raised similar concerns. The piece, entitled Donald Trump Hired Me As An Attorney. Please Don’t Support Him For President. Attorney Wells seems to have less concern than Prof. Tribe in revealing confidential information. Attorney Wells proclaims such sweeping generalities as “The man lies all the time”. The fact that many have already formed that conclusion does not excuse the statement. Has Attorney Wells never heard of loyalty to a client? The fact that Attorney Wells discloses no information that would shock the public at this point does not excuse the disclosures.
Fellas, this is what representing unpopular clients is all about.
Why am I reporting this? Abandoning the fundamental rules governing lawyer conduct is dangerous. In an age when government attempts to limit attorney client privilege and restrict fundamental lawyering principles, what we do not need is lawyers failing to honor long standing ethics prohibitions because their egos compel them to disclose confidences in a public forum. Lawyers are most often at the forefront of effective Human Rights advocacy. Human Rights principles look to eliminate pretext and substitute dignity. We do not need lawyers discrediting the profession with the pretext of protecting the public.
Tuesday, August 2, 2016
I planned for today's post to be exclusively about the documentary Hooligan Sparrow, which I was privileged to see last evening as part of the Woods Hole (MA) Film Festival. But in an amazing sequence of events, dramatic changes have happened regarding Wang Yu, the human rights lawyer featured in the film.
This week the American Bar Association holds it annual meeting in San Francisco. In July, the ABA announced that it would honor Wang Yu with its first International Human Rights Award. The ABA announced that because Wang Yu was held in detention, another Chinese human rights activist, Liu Wei , would accept the award on her behalf.
Remarkably, today the Chinese government announced Wang Yu's release on bail, which was conditioned upon her renouncement of her profession and on the condition that she not accept any awards for her advocacy efforts from foreign entities. In her recorded statement, Ms. Yu said that she is Chinese and only accepts the Chinese government's leadership. The statement is assumed by human rights activists to be given under pressure.
We will wait to see how long Wang Yu remains free. While on bail, she is not permitted to see friends and family, including her teenage son. Her husband was arrested in the same sweep of legal advocates.
Hooligan Sparrow is a documentary filmed ,sometimes surreptitiously, by a Chinese and American filmmaker. The film follows Ye Haiyan, known by film's title, as she leads protests against the rape of young girls by their school principal and another education official. The demonstrations were successful, but the demonstrators paid a price. The demonstrators, including Sparrow, were detained by police for varying lengths of time, but even when living in society, they were constantly harassed by those police paid to harass the protestors.
The film is powerful and Ms. Yu is featured as the legal narrator of the film.
Nanfu Wang, the NY based filmmaker, deserves her own award for courage. The film documents Ms. Wang's own harassment by the authorities, directly and indirectly, as she documents Sparrow's advocacy. Ms. Wang was brave and creative in recording even in the face of police harassment.
The film will deepen your understanding of why persistent human rights advocacy is critical in the U.S. We observe advocates making small inroads in a culture that has consistently suppressed human rights. In the US, we have statutory civil rights with case law that is slowly evolving to include human rights. What we are reminded by this film is that whenever their is a void in human rights advocacy the government will fill it- and not always in compliance with human rights principles.
Thursday, July 14, 2016
No doubt many of you read Just Mercy: A Story of Justice and Redemption by Bryan Stevenson. Today I completed this powerful book authored by a remarkable man. Mr. Stevenson is the founder of the Equal Justice Initiative located in Montgomery, Alabama. Mr. Stevenson and his colleagues at EJI represent incarcerated men and women who have been mistreated by the justice system in horrific ways. Many of the Initiative's clients live on death row. The stories of the incarcerated men and women were sad, outrageous and inspiring. But the lawyering work is painful and heartbreaking.
I will not be a spoiler and give details, but in one instance Mr. Stevenson describes a personal and professional crisis moment that followed a conversation with one of his death row clients. A reflective man, Mr. Stevenson wondered if he could continue the work. He describes the moment when he realizes that not only are his clients, the legal system and its players broken, but he is as well. How does one continue the work after realizing that "We've submitted to the harsh instinct to crush those among us whose brokenness is most visible." Mr. Stevenson realizes that we are all broken. Maybe we were broken in different ways, but we are all broken.
Not only did these passages bring me to tears, but they made me feel for all of us who engage in human rights work. I admire all of you. While we celebrate our victories and support each other's work, rarely do we stop to discuss the pain that accompanies our work.
Bryan Stevenson ultimately, and rather quickly, found strength in recognizing this shared vulnerability. He recognized that "When you experience mercy, you learn things that are hard to learn otherwise. You begin to recognize the humanity that resides in all of us." He imagines what the world would be like if we all acknowledged our fear, our weaknesses and our brokenness.
Dr. Brian Williams, who treated the shot Dallas police officers has begun that conversation by acknowledging his fear. In one interview Dr. Williams, who is black, said that when he sees a police officer he often thanks them for their work so that his daughter will learn not to be afraid of police. Because, he said, "I am afraid". Former Seattle Police Chief Norm Stamper addressed the way in which police officers are trained to be afraid and to view their community members as enemy.
What is missing are police officers willing to discuss their vulnerabilities that are at the heart of their biases and overreactions to perceived threats.
I think of how vital this acknowledgment is to resolving our race crisis. Both sides are filled with fear, but one side cannot engage that conversation. Until that happens, change will remain out of reach.
Thursday, June 23, 2016
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:This 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.
Friday, June 3, 2016
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's 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.
Thursday, May 19, 2016
The answer is: not yet.
SCOTUS is entertaining a cert petition that requests that the court address whether, when civil counsel is appointed, the party is entitled to effective assistance of counsel. While your first response may be "Of course!" the answer may not be obvious in some jurisdictions, as reported on SCOTUSBlog. While the Tennessee case in question is specific to termination of parental rights, if the US Supreme Court accepts the case for hearing, the court's decision could have a wide ranging impact on the quality demanded of court appointed lawyers in a range of civil cases. As noted in yesterday's post, cases that address parental rights are those (at this juncture) that most easily are identified as triggering the right to counsel.
The case is Vanessa G. v. Tennessee Department of Children's Services. The statute in question is Tenn. Code Ann. Section 37-1-126(a)(2)(B)(ii) which states in part "a parent is entitled to representation by legal counsel at all stages of any proceeding under this part in proceedings involving termination of parental rights[.]" The Tennessee Supreme Court affirmed that parents are entitled to appointment of counsel in termination cases, but noted that nothing in SCOTUS' 1981 Lassister decision mandates that counsel be effective. In so ruling the court also rejected the notion that the criminal standard of "ineffective assistance of counsel" must or need be imported to civil matters.
With the concept of a civil right to counsel in matters involving fundamental human rights becoming more recognized, the Vanessa G. case, if accepted, could act as a guide to states as they struggle with redefining which civil cases demand the appointment of counsel and the level of skill litigants may expect when counsel is appointed. We know what the answer would be in Massachusetts, which has already held that counsel must be competent. But this may be the time for clarity on the national level.
Sunday, March 20, 2016
Sometimes it takes a tragic and heartrending story of a single human being to move broad public policy. In the instance of the solitary confinement of youth, the catalyst was the case of Kalief Browder. An African-American 16-year-old, Browder was wrongly charged with theft of a backpack in May 2010 and held for three years at Rikers Island after a judge set his bail at $3,000, an amount the teenager’s family could not post.
Browder was then confined with hundreds of other 16- to 18-year-olds in a section of Rikers where brutal attacks by guards and fights among inmates were common. He was targeted by gangs, beaten by officers and told that if he reported the incidents to medical staff he would be sent to solitary confinement.
Meanwhile, Browder’s criminal charges were caught up in the extreme backlog of the Bronx court system. Because he repeatedly refused to plead guilty, his case was set for trial. Yet, delays caused by court congestion kept pushing back the trial date.
Not long after arriving at Rikers, Browder was placed in solitary for two weeks following a scuffle with an inmate. Six months later, another fight led to his second trip to solitary, where he remained for about 10 months. Even in isolation the threat of violence is a reality, however, and a tense exchange of words triggered an attack on Browder by a guard.
As the months turned into years, Browder became depressed and lost weight. After he tried to hang himself with a bed sheet, he was returned to solitary.
Browder’s case was ultimately dismissed in May 2013 after 31 court dates and three years at Rikers, the majority of which he spent in isolation. The alleged victim had left the U.S. and the prosecutor acknowledged that they were “unable to meet our burden of proof at trial.”
Although Browder made some strides after his release, including earning his GED, finding a part-time job and starting classes at Bronx Community College, the damage of incarceration and isolation had already been done. His mental health rapidly deteriorated, and on June 6, 2015, he committed suicide at his parents’ home in the Bronx. He was 22 years old.
In January, President Barack Obama invoked Kalief Browder, his time in isolation and his suicide in an op-ed in the Washington Post announcing a ban on the solitary confinement of juveniles in the federal prison system, among other critical reforms that would affect the 10,000 adult inmates serving time in isolation.
After relating the facts of Browder’s life, the president wrote, “How can we subject prisoners to unnecessary solitary confinement, knowing its effects, and then expect them to return to our communities as whole people? It doesn’t make us safer. It’s an affront to our common humanity.”
Although the Federal Bureau of Prisons is responsible for fewer than 100 juvenile inmates, with only a handful placed in “restrictive housing,” the president’s executive action reflects a broader recognition of the need to treat adolescents and young adults differently than adults based on their cognitive and psychological capacities. It also is likely to trigger reforms on the state level of solitary confinement policies for both youth and adult inmates, including those with mental illnesses. The U.S. Department of Justice has estimated that more than 57,000 juvenile offenders are incarcerated in jails and prisons across the U.S., with many held in solitary confinement.
At the vast majority of juvenile detention centers, often the only hope for young people held in prolonged isolation lies with lawyers or youth workers willing to expose the practice, report it to the appropriate parties and advocate for its ban.
Advocates working with incarcerated young people should regularly ask them about the conditions of confinement and specifically question them about isolation practices: whether solitary confinement is used, under what circumstances, its duration, whether there is any debriefing following its use and whether alternative strategies are ever utilized.
Unfortunately, Kalief Browder, like many low-income youth, did not receive rigorous legal representation. He was appointed a lawyer who never made the trip to Rikers to visit him and rarely, if ever, spoke with him between court dates.
Advocates working with incarcerated youth who suspect the excessive use of isolation should immediately bring the situation to a judge’s attention at a hearing reviewing the conditions of confinement. If these types of hearing are not mandated in the client’s jurisdiction, they should speak to a lawyer about filing a motion for review of the conditions of confinement. They should also speak with the administrator or the licensing or regulatory agency for the facility holding the juvenile.
Unfortunately, prisoners’ legal services have become increasingly limited as legal aid budgets are cut and offices are forced to discontinue these programs. Because of this gap, every correctional facility should have an inmate-grievance system with counselors who address both routine and emergency complaints. Every facility should also have the equivalent of an institutional ombudsperson available for adolescent inmates to raise claims or express concerns related to their conditions of confinement.
Kalief Browder’s short life continues to have meaning. As President Obama wrote in his Washington Post op-ed, “Today, [solitary confinement] is increasingly overused on people such as Kalief, with heartbreaking results — which is why my administration is taking steps to address this problem.”
Editors' Note: This essay was originally published by Youth Today.
Thursday, March 17, 2016
JoAnn Kamuf Ward introduces this important resource to the human rights advocacy community:
I am pleased to share a new resource created by the Human Rights Institute, Using Thematic Hearings at the Inter-American Human Rights Commission to Advance U.S. Human Rights Accountability, which builds on the experience and insights gathered from an array of Bringing Human Rights Home Lawyers’ Network members who have utilized thematic hearings in domestic advocacy.
Based on the Institute’s interviews, outreach, and research, this resource provides practical insight into the role of thematic hearings within the Inter-American System, and offers recommendations and reflections on how to request, prepare for, and follow up on thematic hearings to maximize their impact. Focusing on the U.S. context, it also distills a number of considerations to inform lawyers’ use of thematic hearings as a tool to advance human rights accountability. To inform future engagement, this resource further includes sample hearing requests and a list of all the U.S.-focused hearings held at the Inter-American Commission since 1997.
U.S. advocates are increasingly turning to the Commission as a forum to address U.S. human rights concerns, and this resource is intended to support these efforts, and to share some of the key lessons learned to date.
I also want to use this opportunity to inform you that the next period of hearings at the Commission will take place in the beginning of April, and there are three hearings focused on the United States. The full schedule of upcoming hearings is available here.
The Institute would like to extend special thanks to all the BHRH Network members that contributed to this publication.
Please let me know if you have any questions.
Sunday, December 20, 2015
Last week, a Massachusetts state judge ruled that a Catholic high school discriminated against a gay man when it rescinded a job offer upon learning that the candidate's spouse is male. The decision is believed to be the first in the nation employment discrimination case since the enactment of marriage equality. The candidate, Matthew Barrett, accepted an offer as food service director. But when he listed his husband as his emergency contact in completing employment forms, the school withdrew its offer.
Mr. Barrett is represented by GLAD attorney, Ben Klein. Judge Douglas Wilkins, in deciding the case, rejected the school's argument of a religious exemption under the Massachusetts' anti-discrimination law. The school argued that it was justified in not hiring Mr. Barrett because his marriage was inconsistent with the school's religious teachings. Judge Wilkins based his decision on several findings. Noting that the school was entitled to control its message, he said that right is limited to those in a position to shape the message, including teachers, ministers and spokesperson. Justice Wilkins noted that Mr. Barrett's position was not in a message shaping catagory and Mr. Barrett has not been an advocate for same sex marriage. In what is a disappointing ruling for those asking to have sexual identity acknowledged as a protected class, Judge Wilkins noted only that Mr. Barrett was subject to gender discrimination when he was denied employment to which a woman applicant married to a man would have been entitled. As previously discussed in this blog, a protected class analysis has been lacking in the same sex and sexual identity cases that have come before a variety of U. S. courts.
This decision is ripe to wend its way to the U.S. Supreme Court. Advocates for conservative Catholic organizations, such as the Catholic Action League of Massachusetts, are already voicing dismay over the decision. That statement may be said too lightly. The group's website headline says that it "condemns" the decision. I suspect that those advocating for the acknowledgement of sexual identity as a suspect classification would welcome this case being accepted for cert. The facts are favorable for consideration of the protected class argument that was avoided in Obergefell. On the other hand, those who believe that this case is wrongly decided may be cautioned against appeal if the consequence might be a ruling that not only affirms the trial court but expands constitutional protections on sexual identity grounds.
Thursday, December 3, 2015
The U.S. Human Right Network will hold its biannual conference in Austin Texas from December 10 - 13th. The conference theme is "Advancing Human Rights 2015: Sharpening Our Vision, Reclaiming Our Dreams". Program topics cover a wide range of human rights issues such as HIV, Reproductive Justice, Police Militarization, The Right to Water, the School to Prison Pipeline and many other area of immediate human rights concerns. The opening plenary is an intriguing call to action entitled: "Feet on the Ground, Head Pointed to the Sun: Towrds a Radical Human Rights Movement at Home."
Ongoing now, December 3-5, is Columbia University's Historical Justice and Memory Network conference. The conference title is "The Politics of Memory: Victimization, Violence and Contested Narratives of the Past". The conference explores themes of victimhood, violence and memory. The confenrece explores, among other topics, historical anniversaries of violence and the way such events are remembered.
On December 8th CUNY's International Women's Human Rights Clinic will host a cocktail reception to announce the entity's new name and dicuss the launch of its new program, Copelan Rapid Response Initiative.
And, as reported earlier, on Monday December 7, 7:00 PM: Pittsburgh: No Limits for Women! A Look at the Cities for CEDAW Campaign(Convention on the Elimination of Discrimination Against Women), Frick Fine Arts Auditorium (Schenley Drive @ Schenley Plaza in Oakland). Cities for CEDAW kick-off lecture and discussion featuring June Zeitlin, a leading women’s rights organizer and advocate for legal protections for women.
Thursday, October 15, 2015
Last week I attended the University of Dayton’s Social Practice of Human Rights conference, mentioned here earlier this summer. It was a great chance for me to immerse myself in human rights during a too busy first semester of teaching. I heard human rights presentations from political scientists, communications and psychology researchers, human rights advocates and more. There were many interesting and timely discussions, including panels about human rights-based approaches to human rights funding (this links to video of the panel presentation) and the new sustainable development goals (again, this links to a video of the panel presentation). However, for me some of the most interesting presentations were about ongoing empirical studies on how to frame a human rights violation to best effectuate action, both at the individual and state level, which I describe briefly below. A link to the full conference program, with links to paper abstracts and videos, is available here.
How many times a semester are you asked about the best approaches for promoting human rights and framing violations of human rights here in the U.S. to bring the necessary attention to achieve real change? In response, up until now, I have usually suggested readings about campaigns that have succeeded, such as the fight for gay marriage and the fair food labor campaign headed by the Coalition of Immokalee Workers, as well as readings about human rights framing and messaging. Yet, there is a growing number of political and other scientists working on compiling evidence regarding this topic and I had the pleasure of hearing from a few of them last week. For example, a team of researchers from the College of Wooster presented in Dayton on their experiments designed to test the efficacy of gendered human rights campaigns. The group concluded that the strategic manipulation of gender images and stereotypes to increase consensus and action on human rights issues was ineffective. This same team from the College of Wooster has also recently studied three types of messaging campaigns used by human rights organizations—informational (to increase awareness), personal (narratives on the plight of an individual or group of individuals), and motivational (creating feelings of agency and efficacy). Between the three types of messaging campaigns, the group concluded that “personal narratives are the most consistently successful, increasing individuals’ sense of knowledge on the issue and their emotional reaction to the issue, leading them to reject the practice and participate in a campaign to demand its cessation.”
Another team from the University of Maryland presented on their research and experiments testing the effects of four prominent human rights justifications—religion, international human rights law, human suffering, and human dignity—on human rights attitudes and commitments to participate in human rights advocacy. The Maryland team concluded that “the quest for some justification for human rights with universal appeal may be misguided,” explaining that their research indicates that different arguments appeal to different types of people. This same team has compared the effects of textual narratives and visual imagery on human rights attitudes and commitments to participate in human rights advocacy, concluding that “imagery depicting human rights abuse does not have a greater impact on individual human rights attitudes and willingness to act than narratives alone.”
There were of course questions raised about the research methodology, the data itself (including the fact that the Maryland team found that religious framing of human rights abuses led to decreased commitments from religious people), and more, but I definitely plan to keep my eye on these teams of researchers and the growing set of evidence-based research on the topic of framing human rights.
Friday, July 31, 2015
The critical need for affordable, fresh drinking water has been the subject of several posts on this blog. Now the US Human Rights Network announced that on July 28th it, along with twenty other organizations and individuals, requested a hearing with the Inter-American Commission on Human Rights on the right to safe drinking water and sanitation in the U.S.
Among concerns, the letter requesting a hearing addressing water shutoffs in Detroit, Baltimore and Boston. The letter addresses concerns around contamination and lack of sanitation in rural areas as well, namely the San Joaquin and Salinas Valleys of California along with the Black Belt of Alabama. The disparate impact on African Americans and Indigenous peoples is documented for the Commission.
Rebecca Landy of the USHRN is the point of contact for the Commission. We look forward to her periodic updates on this important development.
Watch for more information on Northeastern Law's conference "Tapping into the Human Right for Water", being held on November 5 and 6.