Thursday, June 29, 2017
Last month, the U.N. Committee on the Rights of the Child met with a U.S. government delegation as part of its formal review of the United States under two of the optional protocols to the Convention on the Rights of the Child. The United States ratified the Optional Protocol on the Sale of Children, Child Prostitution, and Child Pornography and the Optional Protocol on the Involvement of Children in Armed Conflict in 2002, and this represented a combined third and fourth review of the U.S. government practices. The Committee has now released its Concluding Observations with respect to the U.S. efforts under the Optional Protocol on the Sale of Children.
While acknowledging a number of important legislative developments in the United States since the last review – such as the Justice for Victims of Trafficking Act (JVTA) and the Preventing Sex Trafficking and Strengthening Families Act – the Committee also addressed a number of critical shortcomings. What is notable (and troubling) is that many of the Committee’s recommendations highlighted issues in the U.S. response that the Committee previously addressed in 2008 and 2013. These findings should be a reminder to policy makers and anti-trafficking advocates that although significant efforts are underway, the U.S. response still has a long way to go.
Highlights of the Committee recommendations are below:
- Insufficient data collection and evidence-based research. The Committee reiterated concerns over the “lack of progress on establishing an effective national data collection system on the sale of children, child prostitution and child pornography” and the “insufficient research and evidence-based policy and programme analysis centred on children and the root causes of the crimes affecting them.” Simply put, without good evidence, it’s highly unlikely that the U.S. can develop a truly effective response.
- Lack of evaluation of training programs. The Committee praised the U.S. government’s report that it provides training on trafficking and other issues covered by the Optional Protocol “to all persons and institutions that come into contact with children” (NGOs working on these issues will be surprised by this claim by the U.S. government). However, the Committee notes the importance of evaluating the effectiveness and impact of that training. Evaluation of laws, policies, and programs continues to be insufficient, leaving it unclear whether the U.S. is doing something or doing something effective.
- Unbalanced efforts in addressing sex trafficking and labor trafficking. The Committee restated its finding that across many areas the U.S. government’s emphasis on sex trafficking persists. There still are higher legal burdens for establishing trafficking of children for forced labor than for sexual exploitation, and research remains “overwhelmingly focused on trafficking for sexual exploitation” with relatively little on labor trafficking. All children deserve protection from exploitation.
- Lack of primary prevention focus and efforts. The Committee again noted that the U.S. response typically takes place after some harm has occurred and urged the U.S. government to focus also on primary and secondary prevention. Prevention must be the ultimate goal, and general awareness campaigns are not sufficient. The U.S. government must address the root causes of vulnerability and of the demand for goods and services provided by exploited children, if we are to make meaningful progress in preventing harm to children.
- Finally, the Committee also acknowledged the recent surge in the number of unaccompanied refugee and migrant children, and it urged the U.S. government to take concerted efforts to ensure the protection of these children.
The entire Concluding Observations are worth a close reading. Addressing the above recommendations and other recommendations in the Concluding Observations will take significant effort and resources to address. However, they offer a roadmap to preventing harm to children and ensuring the rights of all children. Both of those aims seem worth the effort and resources.
Wednesday, June 28, 2017
In February 2016, this blog highlighted an exciting development for Vermont dairy workers: Ben & Jerry’s made a formal agreement to cooperate with dairy workers, led by Migrant Justice, to join a worker driven social responsibility (WSR) program, known as Milk with Dignity. That commitment was made in 2015 – over two years ago. Yet, Milk in Dignity is not yet in place. Migrant Justice and Ben & Jerry’s continue to negotiate the terms, but the process has been slow, and progress is lacking.
The stakes continue to be high for farmworkers in Vermont. Farm hours are long, and sometimes workers get no days off. Many workers are not even afforded eight consecutive hours off at a time. Pay is abysmal. Housing is substandard and injuries are common. Indeed, Migrant Justice was founded in response to the death of dairy worker, José Obeth Santiz Cruz. In 2009, Cruz died in a workplace accident when his clothes got stuck in a machine and strangled him. In response, dairy workers decided to take collective action to prevent similar travesties from occurring in the future, and improve overall farm conditions. One Migrant Justice member recently offered a compelling and personal snapshot of what dairy work can be like, and his motivation to advocate for change:
“My dad taught me how to milk cows. My first time in the barn, I thought I would pass out from the stench. It was scary working among the cows, getting knocked around by huge animals. Because there were no jobs available at the farm where my dad worked, I had to find work at a farm an hour away. At just 17, I was living and working by myself in a small farm on a back road in an unknown country, facing my first Vermont winter. Waking up at 3 a.m. to start my first shift, I’ve never felt so isolated. The farmer had me working 12 to 15 hours a day, with no day off. At the end of my first week, my body aching from over 80 hours of hard labor, I received my first paycheck and couldn’t believe what I saw: $350, or just over $4 per hour. At that time, I had no idea what the minimum wage was, but I knew that it wasn’t fair pay for the work I had done.”
Migrant Justice sees the Milk with Dignity Program as the key means to improve conditions so that dairy workers can live and work with dignity. Key components of the Program, which are calibrated to foster transformative change, are spelled out in a legally binding agreement, and include:
- workers’ central role in designing the program to best protects workers’ human rights, including through a detailed code of conduct for farms;
- continuous and independent monitoring to encourage compliance and ensure that breaches of the code are effectively investigated and addressed, coupled with farmworker education about their rights;
- accountability mechanisms to remedy violations of the code of conduct, with concrete market consequences where farms fail to make improvements;
- economic incentives for farmer participation: Ben & Jerry’s pays a premium to farms in good standing with the Code of Conduct, and this benefits the farm owners and farmworkers.
Over a dozen human rights organizations, including the ACLU, the Center for Constitutional Rights, the Coalition for Immokalee Workers, the, FIDH, and Human Rights Watch, Robert F. Kennedy Human Rights have endorsed the key elements of the Milk With Dignity Program, in a recent letter calling on Ben & Jerry’s to join the Milk with Dignity Program and describing how the Milk with Dignity Program implements human rights principles.
Last weekend, on the two year anniversary of Ben & Jerry’s initial agreement to cooperate, Migrant Justice and allies from across the country held a day of action to demand that Ben & Jerry’s make good on its commitment and put the Milk with Dignity Program into practice. More than 100 supporters made a 13 mile trek through Vermont, ending at Ben & Jerry’s Factory, where they delivered the human rights letter.
The March was a success. It drew broad support, received some excellent media coverage, and may be an important catalyst for progress implementing the Milk with Dignity Program. Unfortunately, celebration was cut short by the news that two of the marchers were arrested by Immigration and Customs Enforcement (ICE) on their way back to the farm where they work. Sadly, this scenario is becoming somewhat routine for Migrant Justice. Just last month two other prominent Migrant Justice members were arrested by ICE and served 10 days in jail before being released.
Routine border patrol stops, and the arrests of Vermont dairy workers put in sharp relief the precarious position of many farmworkers, and the challenges to worker advocacy. Farmworkers lack basic legal protections, and were intentionally excluded from the rights to organize and collectively bargain at the federal and state levels, meaning they have few avenues to vindicate their rights. This has always impeded efforts to improve conditions on farms. In recent months, the obstacles that farmworkers face have increased, with a sharp rise in federal targeting of communities perceived to be immigrant, Latino, and non-English speaking, of which ICE arrests are just one example.
As a colleague and I described in an op-ed : in the current political climate, it is even more important that corporations leverage their power and resources to fulfill their human rights responsibilities. I hope that Ben & Jerry’s is ready to step up - it would create a great model and an incentive for further positive corporate action.
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, 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.
Tuesday, November 1, 2016
By JoAnn Kamuf Ward, Lecturer-in-Law, Columbia Law School & Deputy Director of the Human Rights in the U.S. Project at the Law School's Human Rights Institute
With his most recent report, The Rights To Freedom Of Peaceful Assembly And Of Association In The Workplace, UN Special Rapporteur Maina Kiai breaks new ground. Kiai is not articulating new legal norms, but his effort to bridge two international legal frameworks with complementary standards is innovative nonetheless. The report links the norms of the International Labor Organization and core human rights agreements to the struggle to improve the lives of workers who increasingly suffer in the face of economic globalization. It also underscores the need to address the reality that over 60% of the world’s workers are employed in the informal sector, where there is virtually no legal recourse for violations of basic rights.
As Kiai observes:
"Our world and its globalized economy are changing at a lightning pace, and it is critical that the tools we use to protect labour rights adapt just as quickly. A first step ... is to obliterate the antiquated and artificial distinction between labour rights and human rights generally. Labour rights are human rights."
Many US human rights advocates and organizations have made these connections in their advocacy. As a result, during the 2010 UPR, the U.S. received a recommendation to recognize the right to association as established by the ILO for migrant, agricultural, and domestic workers. (The US accepted this recommendation, noting support for ILO principles and noting “Although not a party to ILO conventions 87 and 98 on those topics, we have robust laws addressing their fundamental principles.”) Reviews of the US human rights record in 2015 and 2014 also resulted in recommendations to the United States to ratify particular ILO conventions.
In addition to making the case for integrated approach, Kiai seeks to bring his findings on the relevance of human rights norms to new audiences. Departing from the traditional UN report format, the Rapporteur has prioritized developing accessible illustrations of the impact of lack of protections for workers and recommendations for change. To this end, the report is accompanied by a poster-style fact sheet that distills some of his key findings. This is one of a series of over a dozen fact sheets on freedom of association, and assembly developed by the Rapporteur. Some of the fact sheets focus on country visits, while others distill the obligations of states, multilateral organizations, and other stakeholders, to respect, protect, promote, and ensure the enjoyment of these fundamental rights. Kiai’s website also serves as a clearinghouse for information related to his mandate. You can search by country, and by special projects. This website is a great resource, and an entry point for engagement. Notably, the site includes a request from the Rapporteur for information on pending cases where his intervention on freedom of peaceful assembly or association might be of assistance. (One limitation to note: many of the documents on the site are available only in English).
Maina Kiai’s name and mandate may already be familiar to U.S. human rights advocates because his recent U.S. visit garnered high profile media coverage (including stories in the LA Times and Washington Post). His end of Mission statement, which you should read if you have not already, concluded with a range of powerful observations and recommendations. Kiai also reflected on the national context in which his recommendations are situated:
"The United States is an impressive, complex and imposing nation in which to undertake a mission such as this. It is an economic powerhouse, a military superpower, a global engine of technological development, and one of the oldest democracies in the world.
It is also an extremely diverse nation, a nation of indigenous peoples, slaves and immigrants. It is a nation of diverse opinions and views, sometimes so strongly held that it once slid into Civil War. And it is a nation of struggle and resilience, home of one of the 20th Century’s most inspiring moments encapsulated by the Civil Rights Movement.
The experiences with various forms of diversity and complexity have not always been smooth. The country was founded on land stolen from its indigenous Native Americans; its early economic strength was built on race-based slavery against people of African descent; and successive waves of immigrants have faced discrimination, harassment or worse.
Today, unfortunately, America seems to be at a moment where it is struggling to live up to its ideals on a number of important issues, the most critical being racial, social and economic inequality, which are often intertwined.
To be clear, the focus of my mission was not race or discrimination. My mandate concerns the enjoyment of the rights to freedom of peaceful assembly and of association. But it is impossible to discuss these rights without issues of racism pervading the discussions. Racism and the exclusion, persecution and marginalization that come with it, affect the enabling environment for the exercise of association and assembly rights."
"But racial inequality is not the only inequality inhibiting the enabling environment for association and assembly rights. Although the United States engineered an admirable recovery following the financial crisis of 2007-08, this rising tide did not lift all boats. Productivity and economic output has grown, but the benefits of these have gone primarily to the wealthiest, as the wages of average people have stagnated. This has exacerbated the problem of inequality across all demographic groups, created more resentment, and more tension; providing more reasons for people to become politically engaged – including by exercising their assembly and association rights."
The Rapporteur’s initial reflections on the visit highlight the role of police in both protecting and violating the right to peacefully assemble and the implications of concealed weapons laws on this right. Kiai discusses the ability of U.S. workers to unionize and collectively bargain, as well as the particularly precarious position of migrant workers in exercising the freedom of association. His preliminary statement concludes with the impact of U.S. counter-terrorism measures and curtailment of association and assembly. These findings reflect Kiai’s broad engagement with a wide array of civil society organizations during his 17 day visit. The full report on Kiai’s U.S. visit will be released in June 2017.
Election day is fast approaching. It’s a critical time to double down on the human rights values to which we aspire, take a step back. It is clear that around the country, people are angry and frustrated, and as Kiai noted:
"It is at times like these when robust promotion of assembly and association rights are needed most. These rights give people a peaceful avenue to speak out, engage in dialogue with their fellow citizens and authorities, air their grievances and hopefully settle them. They are also a key vehicle for public participation for marginalized groups whose ability to participate in democracy may be otherwise limited by dint of being felons or migrants."
Our democracy depends on it.
Wednesday, June 22, 2016
In June of 2011, the UN Human Rights Council endorsed a set of global standards to articulate and operationalize the tripartite human right based "respect, protect, and remedy" framework to prevent and address human rights violations that result from business operations. These UN Guiding Principles on Business and Human Rights (“The Ruggie Principles”) constitute the first comprehensive guidelines that define the state duty to protect against human rights abuses, the corporate responsibility to respect human rights, and the right to access effective remedies when human rights abuses do occur.
While the adoption of the Principles was surely a step in the right direction, they were criticized by some human rights advocates, including Human Rights Watch, early on as setting too low a bar for corporations. This criticism raised concerns about three core aspects of the Principles. First, that the standards themselves do not mirror what human rights require in terms of accountability and remedies. Second, because the Principles are voluntary, they lack the requisite carrot and stick to ensure compliance. Third, the rules do little to address the reality that there is often a massive power imbalance between multinational corporations that commit (or turn a blind eye towards) rights violations and the countries in which they operate.
Last week saw the five year anniversary of the Guiding Principles, and happily, they have led to some positive action. There has been an uptick in the number of companies developing publicly available human rights statements. Volvo Group and Caterpillar are among the hundreds of companies that have developed a statement of policy on human rights, in line with Guiding Principle 16. Several companies, including Adidas and Barrick Gold have also set up remedy mechanisms, though their effectiveness is a subject of fierce disagreement between advocates and the companies themselves. And, as we know, corporate human rights abuses continue to wreak havoc in communities around the world, with the tragedies of Rana Plaza in India and the deaths at Marikana mine in South Africa as just two examples.
Of course, no one said progress would be easy. Yet what is laudable is that the Business & Human Rights Resource Centre used the 5 year anniversary to capture both the trends and challenges in implementing the Principles, and to highlight opportunities to make progress moving forward. This effort includes accessible infographics for each pillar of the Guiding Principles: the state duty to protect human rights; the corporate responsibility to respect human rights, and the individual’s right to a remedy. Stakeholder reflections on key benefits and challenges are also available on the Centre’s website. The 5th anniversary of the Guiding Principles offers an important moment to reflect on what has been accomplished and what is left to be done. While there is certainly more of the latter than the former, marking progress has served as an opportunity to breathe new life into the focus on improving compliance with human rights in the corporate context.
Indeed, on the eve of the 5th anniversary, a coalition of global businesses announced a new initiative to measure and report on corporate respect for human rights and increase transparency around how the top 500 globally listed companies measure up in terms of “human rights policy, process and performance” through the Corporate Human Rights Benchmark. The ranking system is illustrated here:
The indicators, which are admittedly limited in scope, were rolled out over the past year and shared with an array of stakeholders around the world. The Corporate Human Rights Benchmark as a whole, though, was developed in large part by private sector investment entities and funded by the UK and Dutch governments. So while there was broader stakeholder engagement, the primary drivers are businesses and governments, who have vested interests in the outcomes (to say the least). Indeed, just a bit of cursory research uncovered concerns that the baseline indicators are inconsistent with the international human rights framework, and the focus on companies’ commitments, rather than outcomes fails to capture the true human rights impacts and costs of doing business. Undoubtedly, as the first reviews are completed, further critiques will emerge.
Nevertheless, this new Corporate Human Rights Benchmark can be viewed as a positive step. The metrics are meant to serve as the carrot to incentivize further progress in promoting and protecting human rights. As the Chair of Ben & Jerry’s Board of Directors noted, the Benchmark “should drive a change in corporate behavior. This performance ranking is built on what the companies do rather than their rhetoric. Those who truly support and deliver on high labor, environmental and human rights standards will be recognized and those that do not will have their records exposed to investors, customers, civil society, and home governments. The expectation is that this ranking system will drive a race to the top and a competition to benefit people, the planet, and the bottom line.”
2016 will serve as a pilot year for the Benchmark, and 100 publicly listed companies have been selected for review, based on publicly available data. A large subset of these companies are based in the United States, including extractives, as well as more familiar retail outfits, such as Costco, Target, Coach, the Gap and Under Armour. The full list of companies is available here. It remains to be seen what level of rigor will be applied to the benchmarking process but this is surely something to watch.
Even if it the progress made to implement the UN Guiding Principles since 2011 is imperfect, it is noteworthy. The next five years will offer us a more nuanced understanding of how the commitments made on paper play out in corporate practice. It will also offer new insights into how U.S. companies operationalize human rights and respond to evaluations framed in human rights terms.
(As a notable aside, Ben & Jerry’s has been a target of the Migrant Justice Milk with Dignity Campaign, which is fighting to secure rights for migrant dairy workers, and signed a commitment to work with Migrant Justice last year).
Tuesday, April 26, 2016
by By JoAnn Kamuf Ward, Lecturer-in-Law, Columbia Law School & Associate
Director of the Human Rights in the U.S. Project at the Law School's Human Rights Institute
Approximately one in every three U.S. adults has a criminal record – roughly the same number of people that hold a four year college degree. The impacts are staggering. The ongoing punitive effects of a criminal record permeate almost every aspect of life, and severely hinder the efforts of individuals who have “served their time” to make a fresh start.
Upwards of 600,000 individuals will be released from prison this year, only to face a complex web of restrictions on their ability to access housing. Under federal law registered sex offenders and individuals convicted of manufacturing methamphetamine are prohibited from living in federally funded housing. In addition to these two categorical bans, federal law leaves broad discretion to property owners and managers to screen potential tenants. An array of state and local laws and policies also govern access to municipal housing, and can include both vague and broad standards for reviewing applicants. The net result is that individuals with criminal records are often excluded from consideration for reasons untethered to legitimate safety concerns or their ability to pay the rent. Depending on where you live, there may be categorical bans related to misdemeanors, bans on accepting tenants until they have been out of incarceration for over a year, and prohibitions on accepting tenants who engaged in “immoral conduct.” Additionally, in many jurisdictions, arrest records have served as the basis for denying housing to individuals and as grounds for evictions, despite the fact that an arrest is not a reliable indicator of criminal conduct. The practice was so widespread that HUD released guidance last year to underscore that reliance on arrest records is out of step with the Fair Housing Act.
A criminal record, and even an arrest record, can serve as a kind of scarlet letter, and has consequences well beyond housing. Felon disenfranchisement is one example from the political sphere. Criminal records can also impede access to education. Barriers to employment, too, are well-documented. Taken together existing obstacles make re-entry and reintegration an uphill battle.
Yet, there are signs that change is on the horizon as Michelle Alexander, the author of The New Jim Crow, stated in a great interview this weekend. This hope emanates from the work of the communities who have faced barriers to achievement and inclusion for decades and are fighting to remove them. As Alexander reported:
Formerly incarcerated people are organizing for their basic human rights — the right to work, the right to shelter, the right to health care and drug treatment — basic human rights that we should be able to take for granted in a nation as wealthy as ours, and a nation that advertises ourselves to the rest of the world as the land of the free and a place of opportunity, equality, and inclusion.
This organizing has had tangible results. Just last week, Virginia Governor Terry McAuliffe took executive action to restore voting rights for convicted felons in the state, reflecting a broader trend to ease restrictions on political participation for people with criminal records. The national movement to “ban the box” has led public and private sector employers to limit the use of criminal records in hiring, as detailed in a past blog. As a result of the momentum around these efforts, “ban the box” has become synonymous with the employment context, but the housing arena has seen progress as well.
A number of cities are on the forefront of banning the box in housing. Newark, New Jersey was a first mover. The city’s 2012 ordinance places limits on when a landlord can inquire about criminal record, and lays out the factors that should govern the individualized assessment of potential tenants, including evidence of rehabilitation. In 2014, San Francisco followed suit, with a law that applies to city-subsidized affordable housing. Legislation has been introduced in Los Angeles, and Washington, D.C.
The federal government has also taken intentional steps to improve access to housing for formerly incarcerated individuals and their families. In November of last year, the President announced a series of measures to ease the burden of re-entry. Key components on the housing front are new funding to support permanent housing, and the guidance on arrest records noted above.
This month, HUD went a step further and issued new guidance on the ways that the Fair Housing Act (FHA) protects individuals with criminal records from discrimination:
While having a criminal record is not a protected characteristic under the Fair Housing Act, criminal history-based restrictions on housing opportunities violate the Act if, without justification, their burden falls more often on renters or other housing market participants of one race or national origin over another (i.e., discriminatory effects liability. Additionally, intentional discrimination in violation of the Act occurs if a housing provider treats individuals with comparable criminal history differently because of their race, national origin or other protected characteristic (i.e., disparate treatment liability).
The guidance makes clear that blanket bans on tenants with a criminal background violates the FHA, and reiterates that arrest records alone are not proper basis for rejecting a housing applicant. This 2016 guidance also lays out the type of balancing test that landlords should apply to assess whether an applicant with a criminal record can be justifiably excluded from tenancy. It calls on landlords to evaluate a range of factors on a case-by-case basis: the nature and severity of the underlying crime, the time lapsed since the crime, and what the applicant has done since the conviction. It also places the onus on landlords to prove that a decision to exclude an applicant is justified under the circumstances (i.e. “necessary to achieve its substantial, legitimate, nondiscriminatory interest”) if the decision is challenged.
It is well documented that adequate and affordable housing is integral to economic viability for individuals and communities. It is time to remove legal impediments to basic economic, social and political rights. Developing policies that foster inclusion for those that have already “done their time” is a step in the right direction. Impacted communities are leading the charge for reform. Policymakers need to take action.
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, February 21, 2016
By JoAnn Kamuf Ward, Lecturer-in-Law, Columbia Law School & Associate Director of the Human Rights in the U.S. Project at the Law School's Human Rights Institute
Women in the United States have strived for, and achieved, equality in many areas, and have rights and freedoms unparalleled in many countries around the world. However, despite an array of legal protections, women continue to face barriers to equality.
The ways that human rights might level the playing field was the focus of the recent visit of the U.N. Working Group on discrimination against women in law and practice. The Group spent two weeks in the U.S., meeting with government representatives, lawyers, and advocates in Washington, D.C., Alabama, Texas, and Oregon. The Working Group’s conclusion: the United States “lags behind” human rights standards in protecting women’s rights. As the Working Group opined “[t]here is a myth that women already enjoy all these rights and protections under U.S. law. However, there are missing rights and protections.”
One area where the Working Group was taken aback was the degree of U.S. workplace hostility to women workers, particularly when it comes to pregnant workers and workers with caregiving responsibilities. And rightly so. There are significant gaps in protections in the arenas of gender pay equity, workplace accommodations for pregnancy, and paid leave, among others.
What does the lack of legal protection mean for American women? The answer depends, in part, on where you live.
Alabama, one of the states visited by the Working Group, demonstrates some of the harshest challenges facing women – it ranks 48th nationally with respect to support services for working parents, making it one of the worst states in which to be a caregiver of children. In Alabama, women are paid 73 cents for every dollar paid to men, with a yearly wage gap of $12,109. For women of color in Alabama, the disparity is even greater, as black women earn 57 cents for every dollar that white men make, while Latina women earn less than 41 cents.
Alabama has no state level protection requiring employers to provide accommodations for pregnant women in the workplace so that they can remain employed. Employers do not have to allow pregnant workers to carry around a water bottle or sit down when needed, for example, and can push these workers out on leave rather than allow them to work through their pregnancies. As a result of the lack of policies that ensure common sense pregnancy accommodations, pregnant women are exceptionally vulnerable to discriminatory treatment by their employers. In many cases, women in Alabama and around the country are forced to choose between a paycheck and a healthy pregnancy. With infant mortality rates above the national average in Alabama, and maternal mortality rates on the rise in the rural South, there is an urgent need for policies to ensure that pregnant workers can maintain their health.
Of course, these challenges do not end at the conclusion of pregnancy. Women with children continue to face myriad challenges in balancing workplace responsibilities and caregiving.
The U.S. is the only industrialized country that fails to ensure workers are provided paid parental leave. This is not just a global embarrassment. It is the reason that only 12 per cent of the private sector workforce is eligible for paid family leave, offered voluntarily by their employer. Yes, that means the majority of working women do not have access to paid family leave when they have a baby. This has real and tangible psychological, physical, emotional, and economic consequences.
The U.S. also fails to provide paid leave to care for ill family members and there is no national guarantee of paid sick time. Nationally, upwards of 40 million workers are not entitled to a single paid sick day, and 38 per cent of employees in the private sector have no paid sick time. In Alabama, which lacks any sick time protections, 44.6 per cent of private sector employees (more than 670,000 workers) have no ability to earn paid sick time. There are also significant implications for the approximately 700,000 children who live in families in which both parents work, or in single-parent households.
In many states, like Alabama, existing protections are a far cry from human rights standards. Yet there are cities and states that are working hard to make progress.
Human rights call for equal pay for men and women; for maternity leave with pay; for policies that enable parents to balance family obligations with work responsibilities; as well as for special workplace protections for pregnant women. These protections are laid out in CEDAW, the comprehensive treaty on women’s rights. International human rights experts have also specifically called on the U.S. to introduce paid parental leave and to address the pay gap.
There is cause for optimism that the U.S. is moving in the right direction. In the absence of federal movement on paid family leave, paid sick time, and pregnancy accommodations, three U.S. states have enacted legislation requiring employers to provide paid family leave insurance to their workersNew York began to offer paid parental leave to non-union city employees, four states, the District of Columbia, and twenty localities now have paid sick time laws insuring a minimal amount of paid sick time to most workers, and sixteen states, the District of Columbia, and four localities have protections that offer at least some accommodations for pregnant workers. Obama has used his executive authority to make incremental improvements, including by fostering transparency in wages.
These are positive steps, but further action is needed at the state and federal level. Federal legislation that has been introduced such as the Paycheck Fairness Act, the Pregnant Workers Fairness Act, the Schedules that Work Act, the FAMILY Act, and the Healthy Families Act would contribute to gender equality for working women and provide better support for families. If enacted, these laws would bring the U.S. much closer to human rights standards for fair treatment in the workplace. Standards that offer stronger support for women, children, and families.
Editors' Note: This post is based on a piece that originally appeared on HuffingtonPost, co-authored by JoAnn Kamuf Ward and Hillary Scrivani, the Kennedy Fellow at A Better Balance. A Better Balance and the Columbia Law School Human Rights Clinic drafted this submission to the U.N. Working Group.
Monday, January 25, 2016
For the past two years, human rights advocates across the United States were deeply engaged with reviews of the US human rights record in Geneva, Switzerland. Reviews by the CERD, the Human Rights Committee, the Committee Against Torture. and the U.S. UPR necessitated an immense amount of reporting, as well as trips to Geneva for those who were able to secure the resources and make the time. Yet, with the conclusion of the UPR last spring, it seemed that the windows of opportunity to raise human rights concerns with U.N. human rights experts, and U.S. officials were closing.
Yet, fortunately for human rights, that has not been the case. Instead, a flurry of activity has opened new opportunities to push for U.S. human rights accountability. And these opportunities are right here at home. The U.N. Working Group on Discrimination Against Women in Law and Practice concluded its US visit on December 11. The experts traveled to Oregon, Alabama, Washington, D.C. and Texas to participate in a range of meetings with civil society and government actors, and received a range of written submissions. The visit was a valuable opportunity for candid conversations on the status of women’s rights in the United States, which informed the Working Group’s preliminary findings. The visit also garnered media coverage in local Alabama media (here and here), and national outlets, Vox and Huffington Post.
This week, the human rights conversations continue. Indeed, the visit of the U.N. Working Group on People of African Descent is already underway. (The Working Group previously visited the U.S. in 2010).
The Group’s current ten-day tour of the United States, has an emphasis on the fulfillment of human rights at the city level. The trip kicked off with federal government meetings, but much time will be spent in the field. The Working Group will visit Baltimore, Maryland; Jackson, Mississippi; Chicago, Illinois; and New York City. In each location, these human rights experts will meet with mayors, attorneys general, and advocates of all stripes. This visit comes at key time, when issues of racial discrimination and inequality are front and nationally and locally, from the presidential debates (or, at least some of them) to the water crisis in Flint, Michigan .
The U.S. Human Rights Network Coordinating Center has played a key role in organizing the visit, working with local steering committees in each city, and collecting written submissions in advance of the visit. All of the written and oral interventions by civil society and government representatives will inform the Working Group’s preliminary findings, which should be releasedthis Friday, as well a more comprehensive report to the Human Rights Council later this year.
I welcome the visit to New York, my hometown, where the Working Group members will meet with elected officials, staff from the State Attorney General’s office, and importantly, spend half a day meeting with civil society to address a range of issues, including housing, education, and policing.
The Working Group’s meetings with local government officials offer an incredible opportunity to lift up human rights violations, discuss local policies that work, and propose context-specific recommendations for progress. How local officials respond is likely to vary across cities, and across office holders. But there is a 100% guarantee that the visit lays the groundwork for future advocacy, which local groups should seize upon and leverage in future advocacy.
Lest you need some taking points to inform how to frame human rights when talking to your local officials, or want to demonstrate that human rights are a valuable tool in local policymaking, you can look to this recent piece by Birmingham Mayor William Bell: Human Rights as a Vision for the Future of our Cities.
By continuing the human rights conversation in every available venue, we can build the foundation for change.
Monday, November 23, 2015
JoAnn Kamuf Ward, Lecturer-in-Law & Associate Director, Human Rights in the U.S. Project, Human Rights Institute, Columbia Law School
Across Europe, countries are deciding how to respond to the current humanitarian refugee crisis and balance that response with concerns of safety and security (or not). As Martha Davis reported here, in Sweden, history is playing an important role in shaping the response.
In the U.S., we face some of the same challenges. It is impossible to deny the overwhelming sense that nowhere is safe. But the quest for safety and security should not be driven only by fear. As the NY Times Editorial Board wrote on Wednesday,
It is impossible to prevent all violence by hate-filled sociopaths and ideologues who are willing to die, and confronting the extremist threat from ISIS and other terrorist groups will require many strategies. But none of them require demolishing the values that are the heart of democratic societies, including the free flow of people and information. Banning all refugees, as some in America and Europe are demanding, would be an ineffective and tragic capitulation to fear. Governments should improve border controls and vigilance, but expanding wiretapping and other surveillance in free societies must be resisted.
This is a sentiment echoed by many, including Washington Governor Jay Inslee, one of the few state governors who has publicly committed to welcoming Syrian refugees. Thirty one governors have threatened to exclude Syrian refugees (the legality of this gubernatorial action is debunked here and here).
In an NPR interview Governor Inslee discussed his attempt to do better than the U.S. has done in the past. In 1942, two months after the attacks on Pearl Harbor, President Roosevelt issued an executive order that set the stage for the forced relocation and internment of more than 100,000 Americans of Japanese ancestry. This broad and overzealous response was motivated by concerns about safety and security married with fear, as well as misunderstanding, racism, and discrimination.
The Supreme Court’s Korematsu decision, which ruled that the exclusion and internment of Japanese American was constitutional, has never been overturned. Yet the Federal government has renounced its actions and the decision. In 1988, the United States, under President Reagan enacted the Civil Liberties Act. The Act offered a much needed apology, as well as reparations for individual survivors of internment. It also stated that the actions taken by the United States constituted “a grave injustice.” And further, that the U.S. response was “motivated by racial prejudice, wartime hysteria, and a failure of political leadership."
But in this time of deep polarization and politicization, there is not even consensus on lessons to be drawn from Japanese internment. The same day as the Inslee interview, Mayor Bowers of Roanake, Virginia, cited the actions of President Roosevelt as justification to halt assistance to Syrian refugees in his city. The Washington Post quickly offered its own critique of the Mayor’s position, as did a number of other news outlets. With such disparate views of the past at play, it is hard to see the path forward.
In the days ahead, let us recall one fact: overzealous, reactionary responses that are driven only by fear have a real human cost. John Tateishi, who spent his childhood years in an internment camp, led efforts to secure redress for the victims of Japanese internment to ensure the same mistakes were not repeated in the future. He drew inspiration from the Japanese saying “kodomo no tame ni” (which translates to “for the sake of the children.”)
Certainly, the responses we choose today will impact not only us, but our children.
Note: On Friday Mayor Bowers apologized for his remarks, after facing sharp criticism.
Friday, October 23, 2015
by JoAnn Kamuf Ward, Columbia Human Rights Institute
The right to vote is under threat in the United States. Gone are the days of asking individuals to count grains of sand in a jar in order to register, or the days when you had to recite the Declaration of Independence, or have a grandfather who voted. Today, the tactics used to keep people away from the polls are harder to spot, but their impact is no less pernicious.
We need to restore the protections of the Voting Rights Act, as civil and human rights advocates have been arguing. We need to look, too, at the disparate impact of policies that don’t, on their face, seem to be directly about voting and recognize them for what they are.
Alabama illustrates the problem, though it is surely not alone. On the heels of the Shelby decision that gutted key provisions of the Voting Rights Act, the State Legislature passed a law that requires all voters to have a photo identification. Then, last month, Alabama decided to close 31 offices that issue driver licenses. The Governor has claimed that these laws are about smarter budgeting in a time of limited funding, and that there is still sufficient access to photo IDs. Advocates counter that these laws and policies are designed precisely to restrict the vote.
Of course, what really matters here are the consequences. The result of the closings is that in Alabama counties with a majority of non-white voters, you cannot get a driver’s license where you once could. This is bad news for Alabamans as a whole, but its impact will most likely be felt most in the poorest communities, communities of color.
You can’t look at closings of license bureaus in isolation. You must consider the fact that since Shelby, Alabama has raised the cost of renewing licenses, compounding the problem of access. In a state where the median income of African Americans households hovers around less than 60 percent of the household income for white families, price increases represent a deterrent to accessing the identification needed to realize the right to participate.
The bottom line is that regardless of intent, the result will be a disparate impact on communities of color. The possibility for yet another lawsuit challenging voting laws in Alabama is likely. The potential outcome is unclear given the state of current voting laws and their enforcement regime. Alabama Representative Terri Sewell has called for a DOJ investigation into Alabama’s DMV closings and that request is pending.
Yet, if there were a different legal paradigm at play – one premised on government’s obligations to ensure basic civil and human rights – Alabama would have to take a new approach. A rights-based approach puts the onus on government to look not only at budgetary needs, but at the overall context of decision-making.
In Alabama this includes looking at all the factors that impede access to voting together. These include cost, location, and other theoretically neutral policies with a disparate impact on communities of color, such as reduced polling hours. Alabama’s history of segregation and past gerrymandering efforts would be pertinent too. The starting point of the conversation would be: Do Alabama’s laws and policies curtail basic rights? Do they foster equality and address discrimination? And under this paradigm, federal, state, and local policy would have to aim to affirmatively secure the right to meaningful participation for all on an equal basis. They would have to improve access, not curtail it.
Some cities, like New York, have started down a path that could offer a course correction to address the challenge of obtaining identification through the NYC ID Card for all. This is important because 23 million citizens that are otherwise eligible to vote lack sufficient photo ID. In Alabama, its estimated that a quarter of a million people don’t have access to adequate photo identification.
To ensuring meaningful access to the ballot much further reaching, structural changes, are needed at the state and federal level. This includes a framework to explicitly address voter suppression efforts. States like California and Oregon have already taken proactive steps to increase the rate of voter registration. Hilary Clinton recently offered her own prescription, after observing that “Alabama is living a blast through the Jim Crow past.”
So many have fought with their lives to protect the right to participate. The ongoing threats to the right to vote and to have a voice in the political arena are an affront to democracy, and to fundamental human rights. These threats are not only in Alabama, they are across the country.
Thursday, September 24, 2015
By JoAnn Kamuf Ward, Associate Director, Human Rights in the U.S. Project, Columbia Law School Human Rights Institute; Lecturer-in-Law, Columbia Law School
Nelson Mandela is known in South Africa as “Madiba”, a clan name that evokes intimacy, despite his status as a larger than life activist and national leader. As a statesman, he was soft-spoken yet firm. Photographs often showed him donning his signature smile. These portrayals of Mandela belie the personal suffering and strife he experienced as a young leader of the ANC. Mandela spent 27 years in prison for leading efforts to dismantle apartheid, 18 of them in a single cell on Robben Island, measuring a 7 feet by 9 feet. Like many deprived of their liberty, Mandela did forced labor, lived in squalor, suffered through demeaning slurs, and was denied the most basic human dignities. Being forced to work in intense heat caused Mandela’s “snow blindness,” damaging his vision irreparably.
But it was the final years of incarceration that most challenged Mandela’s resolve. In 1982, he was transferred to a prison on mainland South Africa, where he was subjected to prolonged isolation. As he later recalled it was solitary confinement that was “the most forbidding aspect of prison life. There is no end and no beginning….One begins to question everything.” So, perhaps it is not surprising that Mandela’s legacy includes the potential for reform of solitary conditions prisons around the world, including in the U.S.
Since 2012 there has been an ongoing international effort to develop practical guidance on how governments can improve prison conditions, known as the Mandela Rules. In May, in an important step forward, the Vienna Crime Commission approved the rules. The Mandela Rules offer a much needed update to The Standard Minimum Rules for the Treatment of Prisoners, developed in Geneva in 1955 – long before our current epidemic of mass incarceration and the general proliferation of solitary confinement across the United States.
The 2015 Mandela Rules have been heralded as “one of the most significant human rights advances in recent years.” This is strong praise to be sure, as the Mandela Rules were the result of years of intergovernmental negotiation. Yet, there is much to commend the new standards. For starters, the Rules operate from the premise that prisoners should be treated with basic dignity, a fundamental paradigm shift for most US prisons. The rules also reflect the fact that torture and cruel, inhuman or degrading treatment and punishment are realities in prisons. The Rules call for staff to be trained on how to treat prisoners humanely AND state that allegations of torture and CIDT should result in an investigation by an independent national authority.
The Mandela Rules also delve into specifics of how to treat prisoners with dignity, including strict limitations on the use of solitary confinement. According to the Rules, solitary should be used “only in exceptional cases as a last resort for as short a time as possible and subject to independent review.” There is also a blanket prohibition on the use of solitary for more than 15 consecutive days. Further, solitary is prohibited where it would exacerbate the condition of a prisoner with mental or physical disability or where women and children are involved.
A number of the 122 rules echo calls by US rights advocates, including in the arena of education and rights of women. Rule 104 calls for education and training in prison, and for education of youth to be compulsory. Rule 48 expressly prohibits the shackling of pregnant women during labor (which the NY Times reported on this week). The Mandela Rules also reflect recommendations from UN experts, including members of the Committee Against Torture, and the U.N. Special Rapporteur on Torture, Juan Mendez. During the 2010 UPR, the United States also received a recommendation to ensure human rights protections in US prisons, including maximum security prisons (Rec 177, which the US accepted).
While the Mandela Rules resulted from years of government negotiation, US groups, especially the ACLU, were deeply involved in the revision of the Rules, alongside international groups coordinated by Penal Reform International, and Juan Mendez, the UN Special Rapporteur on Torture. By engaging with the reform process, civil society groups and human rights experts were able to inform the outcomes. One last hurdle remains before the Rules are final: formal adoption by the UN General Assembly later this year.
Of course, even when adopted, the Mandela Rules will be soft law. As a non-binding framework for prison reform, the challenge in the U.S., and around the world, will be implementation. But there is already evidence that the Rules won’t just remain on the shelf. The United States has supported adoption of the rules, and included corrections officials from Washington and Colorado on its delegation to negotiate the Rules. Both states have worked to reduce the use of solitary and have discussed their own efforts to improve prison conditions, including reducing solitary, throughout the development of the Rules.
The Mandela Rules offer specific, practical standards to bolster reform of U.S. federal, state, and local prisons. In the context of a renewed focus on solitary by the Obama Administration and the September settlement putting an end to the use of indefinite solitary at Pelican Bay, the Mandela Rules offer another tool in the struggle to eradicate solitary confinement. Human rights advocates will play a key role in publicizing the Rules and underscoring their relevance to prison administrators.
Thursday, August 20, 2015
18 states have done it. Over 100 cities and counties have done it. Walmart has done it. Koch Industries has done it. The critical question is: will the federal government be next to “ban the box”?
On July 20th, the US Department of State convened a human rights townhall as part of its engagement in the UPR process – an opportunity for advocates to discuss how the US federal government should respond to the more than 300 recommendations made to the US in May. The Leadership Conference on Civil and Human Rights kicked off civil society interventions, urging the federal government to join the growing ranks of employers that have agreed to remove the question “Do you have a prior arrest or conviction record?” from employment applications.
The Leadership Conference’s recommendation echoes a growing call for the Administration to issue an executive order banning the box for federal agencies and federal contractors. The national “Ban the Box” movement emerged from grassroots organizing by All of US or None to address the problem of “lifelong discrimination and exclusion because of a past arrest or conviction record.”
All of US or None considers itself a civil and human rights organization and this is clearly a human rights issue. Most obviously, banning the box is responsive to UPR recommendation 274, which calls on the US to develop a national strategy to reintegrate “former detainees and to prevent recidivism.” The practice of asking job applicants whether they have an arrest or criminal record has deeper human rights implications as well. It runs afoul of the general prohibition of discrimination and places undue restrictions on the right to work as well. Importantly, human rights not only place on obligation on governments not to discriminate, they require action to prevent discrimination by private actors, bolstering the call to ban the box across employment sectors.
The fact that increasing levels of incarceration have a disproportionately negative impact on communities of color is clear. (According to DOJ statistics from 2012, Black men were 6 times more likely to go to prison than White men, while Hispanic males were two times as likely. Black females ages 18 to 19 were three times more likely to be imprisoned than white females of the same age, while Hispanic 18-19 year olds had imprisonment rates almost double that of white women.
Placing a question about criminal records on employment applications exacerbates this inequity and severely restricts the opportunity for a second chance. Indeed, when instituting “ban the box” protections in Virginia earlier this year, Governor McAuliffe highlighted that “[w]e all know this box has a disparate impact on communities of color.” We all know, as well, that limiting access to gainful employment is a surefire way to ensure financial insecurity for individuals with criminal records in all communities.
Just asking the question about criminal records can deter an individual from finishing a job application. Applicants that do take the steps to complete an application, and check the box, run the risk of being dismissed from consideration with no assessment of their individual skills, character, and qualifications. The NY Times has reported that disclosing a criminal record has a clear negative impact, reducing the likelihood of a callback or job offer by fifty percent. (To clarify, banning the box does not mean that a background check can’t take place –it means eliminating the threshold question of criminal records from the interview and screening stage).
By removing the criminal record question, government employers foster equality and opportunity in the public sector. While banning the box does not address the underlying factors that perpetuate mass incarceration, it chips away at the stigma that millions of Americans face as a result of coming into contact with the criminal justice system. As others have reported, there is also evidence that keeping people with criminal records out of the labor market hurts the economy. Notably, by increasing employment opportunities for those who have been arrested or convicted, governments can reduce the factors that lead to recidivism.
When governments “ban the box” in public employment, they strengthen respect for the human right to be free from discrimination. When governments go further and restrict questions about criminal records in private employment, they bolster human rights by protecting against discrimination by third parties. San Francisco’s ordinance does just that, it prohibits public and private employers from asking about criminal records. Minnesota revised its law in 2013 to do the same. (Massachusetts, Rhode Island. Buffalo, Seattle, Philadelphia, Newark, and Rochester also “ban the box” for certain categories of private employers).
Obama signaled support for banning the box in his speech at the NAACP conference last month. His support builds on recommendations from the My Brother’s Keeper Taskforce, which called for hiring schemes that “give applicants a fair chance and allows employers the opportunity to judge individual job candidates on their merits.” Guidance issued by the EEOC in 2012 on consideration of arrest and employment records also supports banning the box. This Title VII guidance notes that it is a best practice for employers to “eliminate policies or practices that exclude people from employment based on any criminal record” and counsels towards “limit[ing] inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.“
As the Leadership Conference recently stated: “By eliminating the litmus test that denies all applicants who have been in prison the opportunity to work, we ensure that … we are 'a nation that believes in second chances.'”
It is not often that human rights advocates and the Koch brothers agree. The ever-growing bipartisan support for banning the box should be a call to action – its fair, its smart, and it's a critical way to foster opportunity for the more than sixty five million Americans who have an arrest or conviction record.
[Want to know more? The National Employment Law Project tracks state-level efforts, as well as city and county legislation . In 2010, NELP and the National League of Cities jointly developed a resource on promising reentry policies at the city level, which can spark further innovation at the local level.]
Thursday, July 23, 2015
The lofty goal of human rights advocates is to re-orient how government operates. To place freedom from discrimination and an adequate standard of living at the center of decision-making, and to prioritize the needs of the most marginalized communities. This paradigm shift requires changing prevalent attitudes about the role of government and, critically, changing the conversation among government actors.
Often this seems like an unwinnable battle. You need look no farther than the coverage of the Affordable Care Act to understand that Americans are deeply polarized about the government’s obligations to meet basic needs and provide essential services, like healthcare. This polarization is certainly disheartening, but it should by no means discourage human rights advocacy and organizing.
Why not? Because everyday, in new and perhaps unexpected ways, human rights are permeating the dominant narrative. Human rights are implicit in Supreme Court decisions and presidential speeches rife with references to the foundational principles of dignity and equality. Under the Obama Administration, explicit references to human rights at the federal level are increasing too. President Obama has affirmed the “basic human right to be free from violence and abuse” and HUD has recognized housing as a human right. At the local level, there is a burgeoning national Cities for CEDAW movement, with mayoral support in a number of cities, including Los Angeles.
Philadelphia now joins the ranks of cities where policymakers are looking to human rights when formulating policy. In June, a member of the Philadelphia City Council affirmed that human rights, and the right to water specifically, are a concern for local government. This recognition came with an announcement that the City Council approved legislation to improve affordable water access for members of Philadelphia’s low-income communities. In her announcement, Councilwoman Quinones-Sanchez quoted UN Special Rapporteurs, stating “‘[i]t is contrary to human rights to disconnect water from people who simply do not have the means to pay their bills.’” (The U.N. Special Rapporteurs focused on housing and water and sanitation made this pronouncement as a result of their joint 2014 visit to Detroit, where mass water shut offs have caused severe harm to families who cannot afford to pay their bills, as reported previously on this blog).
According to Quinones-Sanchez, the Bill would require income-based payment plans, and strengthen protections for individuals who have been unable to pay their water bills due to financial hardship, as well as providing forgiveness for overdue bills once customers enroll in the newly created assistance program. These protections aim to prevent foreclosures based on a failure to pay their water bills. In her announcement the Councilwoman noted that by passing this legislation, “Philadelphia will join the forefront in best practices related to water access.”
A race to the top in the arena of water access would have positive implications for communities around the country. And, Philadelphia can serve as an example that generates conversations elsewhere.
Changes in narrative alone will not achieve the promise of human rights. But, when that change is tethered to new approaches to policy that fulfill the right to an adequate standard of living and prioritize vulnerable communities, well, then we are getting somewhere.
We need more cities to pick up the banner of human rights and use human rights principles to re-imagine how government can best meet the needs of constituents.
Of course, if not for the work of advocates in Detroit who organized the visit of the Special Rapporteurs, the Philadelphia Bill may not have been linked with international human rights. But, as a result of their advocacy, more local actors are making these connections.
[Editors' Note: At the time of publication, the legislation was awaiting Mayor Nutter’s signature]
Thursday, April 2, 2015
In her recent column on the importance of participation in budgeting, JoAnn Kamuf Ward writes, “Many lawyers are not numbers people, but we ought to be.” A critical reason for human rights lawyers to pay more attention to numbers is the nature of economic, social, and cultural rights: under human rights law, they are tied to the state’s obligation to use the maximum of its available resources.
Determining whether a government is meeting its obligation to use “maximum of its available resources” (ICESCR article 2) necessarily requires a review of state budget expenditures. For example, if the gross domestic product of a state obligated to ensure education rights is increasing each year, but the education budget is not, or if a country's defense spending increases by a significantly greater percentage than its education budget, the state might not be using the maximum of its available resources to achieve progressive realization of these rights and thus would be failing to comply with international human rights law.
Budget analysis can help monitor states' practices, ensuring that they do not use the resource qualifying language of economic, social and cultural rights as an excuse not to secure these rights for individuals subject to their jurisdiction. Budget analysis can also suggest areas in which there may be discrimination in the provision of services (of note, the prohibition on discrimination is not qualified by available resources). Additionally, it can highlight areas where government has failed to spend allocated funds. Fundar, working with international partners, produced some of the early research on budget analysis, assessing the Mexican Government's budget and identifying a number of issues regarding whether Mexico is meeting its international obligation to protect the health of its population using its maximum available resources. It offers a model for determining what a national or local government is required to do to secure economic and social rights for its population (see also IBP for additional resources on budget analysis).
Budget analysis has limitations. It will not necessarily reveal whether resources are used effectively or efficiently. That said, it can provide a starting point for determining whether a country is using its maximum available resources. Combining budget analysis with the content of specific provisions, such as health or education rights, can enable human rights scholars and advocates to assess, with greater precision, states' compliance with human rights law.
Tuesday, March 31, 2015
Follow the Money.
It’s no secret that an important way to assess someone's priorities is to look at how they allocate their resources. This is true for individuals, but it applies to governments too.
Many lawyers are not numbers people, but we ought to be. By watching how governments spend specific dollars, we can more effectively identify the extent to which stated commitments to human rights, are, in fact, priorities. Being well-versed in financing can also help advocates influence how money is being spent.
Of course, budget processes are not often transparent. But that is changing, as the Transparency and Accountability Initiative has detailed. A human rights framework requires transparency, because it is critical for accountability. Transparency alone, however, does not make a budget process human rights-compliant. Human rights also call for governments, both national and local to foster meaningful participation of communities in decision-making:
The right to participate is not spelled out in any one treaty or covenant, but is drawn from a number of international agreements, including the International Covenant on Civil and Political Rights, the U.N. Declaration on the Rights of Indigenous Peoples and the Convention on the Elimination of All Forms of Discrimination Against Women.
In 2013, then U.N. Rapporteur on Extreme Poverty and Human Rights, Magdelena Sepulveda, issued a report detailing the contours of participation, focused on participation of individuals living in extreme poverty. She emphasizes that “To be in line with human rights obligations, participation should challenge existing power relations that restrict people’s agency and enable free, informed and meaningful input, with real influence over the final decision or outcome.” Her report also offers concrete strategies for ensuring basic human rights principles, such as dignity, non-discrimination, access, and empowerment. For one, placing a priority on creating circumstances in which marginalized or typically vulnerable populations can participate. Additionally, fostering access to information so that all community members can make informed choices, regardless of literacy, language or other factors.
Bringing a human rights framework to budgeting has the potential to be transformative. There are efforts underway to develop human rights based budgeting in the U.S. and abroad. In 2011, Mexico City enacted a law putting human rights budgeting in place. Within the U.S., the most notable action has been at the state level. In Vermont, the Legislature has declared that “the state budget should be designed to address the needs of the people of Vermont in a way that advances human dignity and equity” and that spending and revenue should promote economic well-being and “recognize every person’s need for health, housing, dignified work, education, food, social security, and a healthy environment.”
While not based in human rights principles, there is also a growing city level effort in the United States to infuse participation into spending through participatory budgeting (“PB”). Boston, Chicago, New York, San Francisco, St. Louis and Vallejo, CA, are all experimenting with versions of PB. (PB originated in Puerto Allegre, Brazil in the 1980’s and has been used in localities around the world – over 1,500 localities – according to the Participatory Budgeting Project). NESRI has discussed subnational examples, including from Canada and the UK, in a short briefing paper.
In my own hometown, New York City, participatory budgeting began in 2011. The way it works is that in each district that has PB, residents choose collectively how to spend $1 million of their City Council Member’s discretionary capital funds. Neighborhood assemblies develop project ideas and spearhead project proposals that are ultimately presented to the district members. Any resident of the district can participate, as long as they are 16 or older and have proof of residency in the district – moving closer to “one person, one vote” than typical elections.
Since 2011, the number of City Council Members who participate has tripled (up to 24 in 2015). And, the City Council is trumpeting this effort.
Of course, this type of budget participation only gets at a small slice of the pie, and the options and outcomes are not necessarily based on human rights principles. But, participatory budgeting is clearly a step toward more inclusive, transparent and accountable civic participation. It is also a signal that direct democracy is alive and well.
Monday, March 16, 2015
Prof. Risa Kaufman's and Prof. JoAnn Kamuf Ward 's students traveled to Alabama last week to participate in events commemorating the 50th anniversary of Bloody Sunday. The students provide us with their first hand account.
By: Glory Nwaugbala, Dan Pedraza, Ben Setel, and Audrey Son, Columbia Law School Human Rights Clinic
As members of Columbia Law School’s Human Rights Clinic, we have spent this academic year working to advance state and local implementation of human rights within the United States. We recently experienced the importance of this work firsthand over the course of a weekend in Alabama.
Many of the United States’ human rights obligations fall within the jurisdiction of state and local governments. Through the Columbia Law School Human Rights Institute, we have been working to develop and support state and local implementation of these obligations. As part of that work, we’ve been privileged to work with the Birmingham mayor’s office. We have been particularly excited to work with Birmingham, not only because of that city’s historical importance in the civil rights movement, but also because Birmingham Mayor William Bell has emerged as a champion for human rights, including through his participation on the United States’ official delegation to the CERD last summer.
On Friday, March 6th, 2015, Mayor Bell hosted a dialogue on local human rights concerns in advance of the upcoming review of the United States at the Universal Periodic Review, and in conjunction with the 50th anniversary of Bloody Sunday (when, as part of the Voting Rights Movement, unarmed demonstrators attempting to peacefully march from Selma to Montgomery were attacked by state troopers on the Edmund Pettus Bridge).
For this event, we helped plan a day of panels on a wide range of issues, including education, immigration, homelessness, and marriage equality. The panelists included state legislators, law enforcement officers, local advocates, community members, and other actors. A representative from the U.S. State Department attended, as well, and noted in his closing comments that “human rights are universal but are experienced locally.” He went on to say that this event was precisely the sort of local engagement that the State Department hoped to cultivate throughout the country. It was encouraging to hear such strong words of support for state and local engagement with human rights from a federal government representative.
Although the individual panelists may not have shared the same views or experiences, some common ground emerged. Where each had seen a gap in justice, each has worked to fill it. Despite the efforts of these individuals and their respective organizations, however, it was clear that more must be done to address critical social justice concerns in Birmingham. The dialogue among the panelists highlighted one of the major themes of the weekend: the promise of human rights in addressing local issues. As one panelist noted, Birmingham must transition from “the cradle of civil rights to the house of human rights.”
Human rights provide a valuable supplement to the traditional civil rights framework. The language of human rights makes clear the intersection and deep connection between economic, social, cultural, civil, and political rights. A human rights frame can better capture many contemporary issues, and pave the way for holistic solutions. It can empower individuals by explicitly acknowledging them as rights-holders. And such acknowledgement highlights that government actors have a responsibility to protect, respect and fulfill rights.
The following day, March 7th, 2015, marked the 50th anniversary of Bloody Sunday, the attempted march from Selma to Montgomery that sparked the passage of the Voting Rights Act. We travelled from Birmingham to Selma to hear President Obama, Congressman John Lewis, and others speak on the legacy of the march. As Congressman Lewis embraced our nation’s first African-American president, sharing a stage in this historic place, we were reminded that although the struggle for rights in the United States has been long and difficult, it is one that has made tremendous strides forward. President Obama's speech served as both a reflection on progress made and as a call to further action. Tens of thousands of people of all ages, races, genders, and sexual orientations gathered in Selma that day to rally around one idea: keep marching. As President Obama reminded us: “the most powerful word in our democracy is the word ‘We.’”
Throughout the weekend, we were struck by the way in which human rights themes permeated the discourse from the local level all the way to the President’s speech. While not everyone mentioned “human rights” explicitly, the principles were evident in their words and in their work. Human rights have a role to play in cities, in states, and at the national level, and they provide a roadmap for the achievement of the universal rights of all people.
Hearing those themes reflected in Alabama was particularly powerful. The story of civil rights in Alabama is as inspiring as it is unfinished. Knowing that tremendous progress has been made in the fight for civil rights—both in Alabama and across the United States—we have good reason to be optimistic about the promise of human rights. In order to realize this promise, however, we must keep marching.
Tuesday, January 27, 2015
by JoAnn Kamuf Ward, Human Rights Institute, Columbia Law School
The U.S. prides itself on free and fair elections. Indeed, the Constitution and federal law guarantee equality in voting: the “one person, one vote” standard was enunciated by the Supreme Court in the 1960s as a means to address vastly skewed voting power resulting from districts with unequal populations.
This simple phrase – “one person, one vote” – belies the complex nature of elections in the United States. In order to foster the idea that each person’s vote counts in our at large system, federal elections districts drawn “as mathematically equal as possible,” while state and local districts are supposed to be drawn through an “honest and good faith effort” to ensure equal populations. (The ACLU has explained these standards and the underlying case law here). But, in the majority of states, districting falls to legislators (in others, districting commissions have authority to draw districts). That means in most jurisdictions, those who are in charge of districting are individuals with a vested interest in maintaining power. This system is one rife with potential for abuse.
Indeed, it has led to rampant gerrymandering. In general, gerrymandering is the act of altering political boundaries with the intent to impact election outcomes. Perhaps the most well-known form of gerrymandering is racial. Indeed, the Voting Rights Act was developed to prevent the dilution of minority votes – yet its protections are unfortunately being chipped away. Another variation is partisan gerrymandering, i.e., the “practice of dividing a geographical area into electoral districts, often of highly irregular shape, to give one political party an unfair advantage by diluting the opposition’s voting strength.” This slicing and dicing of districts to protect a particular party or favor a particular candidate is another way that districting curtails truly free and fair elections.
While much seems at stake, the Supreme Court has been reticent to step in to curtail these practices. Indeed, last year’s decision in Shelby v. Holder struck down some protections of the Voting Rights Act that address racially discriminatory gerrymandering. In the arena of partisan gerrymandering, the Supreme Court more or less thrown up its hands over a decade ago. In 2004, a plurality decision by Justice Scalia opined that there is “no judicially discernible and manageable standards” to adjudicate claims of partisan gerrymandering. This means that presently there is little recourse for those whose votes, and voices, are marginalized by partisan line drawing.
So, what can be done? Advocates are taking these concerns to the international human rights community to put pressure on the United States to ensure elections are truly representative. The relevant human rights protections are strongly worded. The Universal Declaration of Human Rights enshrines the right to “take part in the government of his country, directly or through freely chosen representatives” and guarantees a fundamental cornerstone of democracy, that “[t]he will of the people shall be the basis of the authority of government; [as] expressed in periodic and genuine elections.” The International Covenant on Civil and Political Rights echoes these protections and the Race Convention further guarantees the right to vote.
In its recent review of the United States’ human rights record, the CERD Committee expressed concern about the “obstacles faced by individuals belonging to racial and ethnic minorities and indigenous peoples to effectively exercise their right to vote, due inter alia to restrictive voter identification laws, district gerrymandering, and state-level felon disenfranchisement laws.” The Committee called for federal legislation to address discriminatory impact of voting regulations, voting rights for felons and DC residents and efforts to ensure indigenous peoples can effectively exercise the vote.
There are ongoing legislative efforts to address some of these concerns, including passage of the Voting Rights Amendment Act of 2014. Placing districting power in the hands of independent bodies rather than legislators is another proposal reform. Another recommendation to address partisan gerrymandering is removing discretion altogether and utilizing computer models to generate district maps.
Yet, it is unclear whether current legislative reforms or judicial intervention can truly foster compliance with human rights norms within our current winner take all election system (also known as “first past the post”). More drastic steps may be necessary to ensure the will of the people is the basis of the government and representatives are freely chosen.
Alternatives to “winner take all” models do exist. They are employed in countries around the world, as well as in some U.S. jurisdictions. One is Ranked Choice Voting, or Alternative Voting (AV), which is used in Cambridge, MA, San Francisco, CA and Australia. Another is Mixed Member Proportional Representation, the means for choosing representatives in Germany, New Zealand and others. These videos offer an introduction to Alternative Voting and Proportional Representation
What solutions would you propose?