Thursday, August 2, 2018
The 7th Circuit Court of Appeals ruled this week in favor of Chicago ordering that the federal government cannot withold funding from cities that refuse to cooperate with the adminstration on enforcement of federal immigration laws. The ban is intended to be national in scope. The lawsuit was filed after Attorney General Sessions announced that cities refusing to cooperate in immigration enforcement would not be eligable for certain DOJ grants.
Justice demands included uncontrolled access to jails and 24 hour notice if an individual wanted for immigration violations is to be released.
The injuction is temporary and was issued on separation of powers grounds. The full order may be read here.
Wednesday, August 1, 2018
"Sexual abuse is one of the primary predictors of girls’ entry into the juvenile justice system...Once inside, girls encounter a system that is often ill-equipped to identify and treat the violence and trauma that lie at the root of victimized girls’ arrests. More harmful still is the significant risk that the punitive environment will re-trigger girls’ trauma and even subject them to new incidents of sexual victimization, which can exponentially compound the profound harms inflicted by the original abuse."
So informs the introduction to a new report highlighting the victimization of young girls who are ferried through the maze of the juvenile justice system when the crime was not theirs but that of the predators who sexually abused them. The report is a collaboration between Human Rights Project for Girls, Georgetown's Center on Poverty and Inequality, and The Ms. Foundation for Women,
"Once inside, girls encounter a system that is often ill-equipped to identify and treat the violence and trauma that lie at the root of victimized girls’ arrests.
The report exposes various ways in which various systems criminalize girls, particularly girls of color. Trauma based treatment, which is the needed response is typically overlooked. The report addresses the over representation of sexually non-conforming juveniles and is generally a good source of statistics supporting the research that is the basis of the report.
Tuesday, July 24, 2018
Families for Freedom announced last week that ICE detainees had begun a hunger strike to protest inhuman conditions. Conditions include "nearly nonexistent medical care, inedible food, abuse from facility employees, and exorbitant commissary prices." At least 60 detainees in the Dartmouth, MA facility went on strike with Sheriff Thomas Hodgson minimizing the number of strikers and the length of the strike. Hodgson's office confirmed that they had disciplined the organizer, or as his office called him, the "ringleader" of the strike. This strike follows one held a year ago at an Oregon facility holding ICE detainees. Deplorable conditions were the focus of that strike as well.
The Bristol County MA Sheriff defended high commissary prices calling the purchases "luxury items" and defended what are increasingly high telephone charges. In the meantime, New York City has eliminated telephone charges for domestic calls for incarcerated individuals.
Monday, July 23, 2018
This past May, the Vera Institute released a report on the treatment of black Americans in the criminal justice system. The report, written by primary author Prof. Elizabeth Hinton of Harvard University, is entitled An Unjust Burden: The Disparate Treatment of Black Americans in the Criminal Justice System. No one is surprised at the over representation of black Americans in our criminal systems.
The report "presents an overview of the ways in which America’s history of racism and oppression continues to manifest in the criminal justice system, and a summary of research demonstrating how the system perpetuates the disparate treatment of black people. The evidence presented here helps account for the hugely disproportionate impact of mass incarceration on millions of black people, their families, and their communities."
The report traces the history of laws targeting black Americans as well as systemic bias that results in the disproportionate arrest of black men, in particular. While only ten pages long, the report is packed with information that would serve as an excellent introduction to the effect of bias and deliberate discrimination. A brief bibliography is included.
Sunday, July 22, 2018
If you had an opportunity to design housing for those who have been convicted of a crime, what would it look like? Would there be any need for solitary units, or even bars? An opportunity to eliminate cages? Spaces for recreation and education?
More than one prior post on this blog has described the horrors of Rikers Island.
For those of you living in New York, an important meeting will be held in the Bronx as a part of the Close Riker’s Island Campaign. The meeting organizers will challenge attendees to consider what a new detention facility would look like if designed by community members. The announcement reads:
Please join us to have a discussion about the Close Riker's Campaign and what it means to the Bronx Community. We would like to hear your thoughts and ideas about the creation of a Bronx borough-based jail. The Bronx is the only borough where a new facility will be built while the other detention centers in the various boroughs (except for Staten Island) will be expanded. What is your vision? What do you feel the Bronx community needs? What are your suggestions for bringing more people together to be part of the decision-making process of what affects our communities? What would a detention center look like if its vision was inspired by the community?
LOCATION 360 E 161ST ST BETWEEN COURTLANDT AND MELROSE AVE BRONX, NY 10451
For more information contact Carmen at 718-508-3440
Other communities are challenged to convene gatherings to discuss better systems of detention and demand humane conditions.
Wednesday, July 18, 2018
In the Matter of A-B- the government disqualified domestic violence claims as a basis of asylum except on narrow grounds. Those grounds will be near impossible for most asylum applicants to prove. The opinion demands that "An applicant seeking to establish persecution based on violent conduct of a private actor must show more than the government’s difficulty controlling private behavior. The applicant must show that the government condoned the private actions or demonstrated an inability to protect the victims." When police refuse to respond to a domestic violence call or appear at a home after abuse happened and refuse to intervene, the applicant will likely be unable to show malintent on the part of the state.
In the wake of a letter signed by family law professors to Attorney General Sessions seeking revocation of the A-B- decision, Nermeen Arastu, Janet Calvo and Julie Goldscheid, of CUNY Law School, have written an op-ed in response to Attorney General Sessions' virtual elimination of domestic violence, or any private violence for that matter, as grounds for asylum. As the authors state "survivors may not ever be able to bring their legitimate claims and will be summarily sent back to the hands of their persecutors, exposing them to life-threatening harm."
You may read the entire op-ed here.
Wednesday, July 11, 2018
When Ecuador introduced a World Health Assembly resolution that would promote breastfeeding world-wide, the US objected. While expected to be routinely passed, the resolution was halted by the surprise objection. When Ecuador resisted, the US responded with threats. The US threatened to invoke trade sanctions and threatened to withdraw military aid. What words did the US object to? The resolution encouraged countries to "protect, promote and support breastfeeding."
The New York Times speculated that US motivation was to protect US baby formula manufacturers, some of whom were reportedly in attendance. Maybe that was part of the motivation. But for men who disrespect women, any action that focuses on an exclusively female function raises their anger. For men so inclined, pregnancy often triggers abuse. Women report being attacked when breastfeeding or when just holding the children. Interrupting maternal bonding is a common tactic of men who hate women.
The US would prefer to interrupt maternal child health and bonding globally. But then the US met a bigger bully.
When Russia stepped in to sponsor the resolution, the US backed down.
Tuesday, July 10, 2018
All eyes are now on Brett Kavanaugh, President Trump's latest nominee to the U.S. Supreme Court. Retiring Justice Kennedy was a leader in looking at transnational law in cases ranging from the legality of the juvenile death penalty to sexual orientation and human dignity. Will Judge Kavanaugh, who clerked for Justice Kennedy in the 1993-94 term, follow his mentor's lead? As we continue to dig deeper into Judge Kavanaugh's record, here are three preliminary clues:
First, it's worth noting that Kavanaugh can claim some expertise on international and foreign law through his teaching. At Harvard and Georgetown, his courses focused on separation of powers and constitutional interpretation, but at Yale in 2011, Kavanaugh taught a course titled "National Security and Foreign Relations Law."
Second, that course was apparently a success, since it spurred at least one Yale student to write a substantial article on treaty interpretation in Medellin v. Texas, titled "Treaty Textualism." In the article, the author thanks Judge Kavanaugh saying "the idea came from him; I merely filled in the footnotes." The article surveys historical data on framers' ideas of treaty interpretation, looking to discern what meaning should be ascribed to the Supremacy Clause. Among other things, the author ultimately concludes that the dissenters had the best of the originalist argument in Medellin.
Finally, Judge Kavanaugh served as a clerk for Justice Kennedy during the 1993-1994 term, nearly a decade before Justice Kennedy's most prominent opinions citing international legal authorities. However, a quick review of Judge Kavanaugh's own opinions on the bench revealed several cases in which he was presented with international law issues, most prominently Doe v. Exxon Mobil, 654 F.3d 11 (D.C.Cir. 2011). In that Alien Tort Statute case, Kavanaugh dissented when the two other judges on the panel voted to allow the federal ATS claims of injured Indonesian villagers to go forward. The D.C. Court of Appeals decision was ultimately vacated following a later Supreme Court ATS ruling in Kiobel v. Royal Dutch Shell which adopted some of the same rationales as Judge Kavanaugh's dissent.
Monday, July 9, 2018
Fresh from seeing the restored 50th anniversary Yellow Submarine, I thank the Beatles for their prescience. As we struggle to remain optimistic in an era of separating children from parents, environmental deregulation and disregard of all respect for humans and their habitat, viewing Yellow Submarine was reaffirming in incongruent ways.
As one plot summary notes, the peaceful harmony of Pepperland is shattered when the Blue Meanies invade with their army of storm bloopers and others, including the menacing flying glove, in an attempt to stop the music and drain all color and hope from Pepperland.
The film was released in 1969 at a time of domestic and international turmoil. The Viet Nam war was escalating causing political and intergenerational divisiveness. Democracy was compromised. Withholding truth about the causes of the war and the effectiveness of US intervention resulted in the death of thousands of our citizen soldiers. Efforts to silence civil rights activists contributed to ongoing repression of people of color while young African Americans were the fuel to feed the war beast. The nation was struggling to recover from assassinations that deprived the country of essential leadership.
The Beatles recognized the “meanies” who attempt to control populations by removing all that brings happiness and autonomy to life. The analogy to what is happening in the US today is blatant, making the film relevant beyond what most would have been considered in and after 1969. There are those whose goal is to deprive others of happiness, but in our era, we are plagued with those who also seek to inflict as much pain as possible upon their targets. Merely showing present destructors the path of love is insufficient to stop the current march toward demolition of dignity. But love remains the answer for those at odds with the Meanies and is the critical ingredient to maintaining a sense of community with each other. Love keeps meaning in our lives as a counterbalance to political despair.
One of the film's many fun features was watching the contributions of Nowhere Man. Initially assessed to be a useless academic, Nowhere Man contributes to the defeat of the Meanies, changing his moniker to “Somewhere Man”.
Tuesday, July 3, 2018
For decades those who consider the health of the nation have warned about the consequences of the widening gap between the rich and others. Along with the disappearance of the middle class has come the disappearance of empathy. Sense of community and willingness to help others has been replaced in many instances with an odd combination of beliefs. Contemporaneously, many believe that each individual is responsible for his or her own situation, as if the resources of the universe are available to all equally and somehow looming poverty is the result of individual failure to grasp the brass ring. Thrown into the mix is a smattering of distorted Christian biblical references used to justify whatever harsh policy or attitude promoted. Most recently, Attorney General Sessions quoted St. Paul in an effort to justify separating children from their parents at the border. Many pastors denounced Sessions' use of scripture and pointed out that the passage was taken out of context. It doesn't help that the cited passage was similarly used to support slavery which for generations entitled slave "owners" to practice family separation as a matter of right.
Then I saw Won't You Be My Neighbor? Fred Rogers foresaw the dangers of exposing children to violence and hatred. He spoke of consequences of exposure to violent television. Not only do our youth deal with violence on television and in movies, violence against students is a national fear with hyper-awareness of school shootings. How we extend the message of love to children today is our challenge. There is no Mr. Rogers to tell children that they are perfect just as they are.
Perhaps we are asking the wrong questions when we consider policy, religion and resistance. The right question is "What would Mr. Rogers Do?"
Thursday, June 28, 2018
While the nation was distracted by the crisis of children being separated from their parents at the US border, a Supreme Court decision impacting abortion providers was less noticed. In The National Institute of Family and Life Advocates, dbs NIFLA, et al v. Becerra, Attorney General of California, et al, the court decided that free speech protections prevented California from requiring anti-choice organizations to provide information on abortion availability as part of their services.
Justice Breyer pointed out the inconsistency with Planned Parenthood v Casey requires abortion providers to distribute certain kinds of information to clients. "As the question suggests, there is no convincing reason to distinguish between information about adoption and information about abortion in this context. After all, the rule of law embodies evenhandedness, and 'what is sauce for the goose is normally sauce for the gander'" Justice Thomas attempted to distinguish the cases by arguing that the 1992 Planned Parenthood case involved a medical procedure. Justice Thomas responded "Really? No one doubts that choosing an abortion is a medical procedure involves certain health risks. But the same is true of carrying a child and giving birth." Justice Breyer noted that childbirth is 14 times more likely to result in the woman's death than abortion.
Justice Breyer might have added that US maternal death rates are the highest in the developed world.
I would have said that perhaps it is time for laws imposing speech on abortion providers be revisited. But given this week's news of Justice Kennedy's retirement, maybe not.
Wednesday, June 27, 2018
A San Diego federal judge has ordered immigration officials to reunite children and parents. In addition to barring the now suspended practice of separating children from families, Judge Dana Sabraw ordered that children under five be reunited with their parents within fourteen days and that parents of children of all ages be permitted to speak with them within ten days. Further the court order requires parents subject to deportation to leave with their children.
In what will no doubt be an oft quoted sentence from his opinion, Judge Sabraw said, " The unfortunate reality is that under the present system migrant children are not accounted for with the same efficiency and accuracy as property." The administration's attitude expressed by Judge Sabraw is simultaneously arrogant as well as cavalier. Invoking property rights reminiscent of slave owners, the administration has not bothered to properly document the parental relationship of children in its custody. As Judge Sabraw noted, the Executive Order that terminated the process of separating children from parents made no mention of whether or how to reunite already separated children from the parents who brought them across the border.
"The facts set forth before the court portray reactive governance responses to address chaotic circumstance of the government's own making. They belie measured and ordered governance, which is central to the concept of due process
A status conference in the case is scheduled for July 6th.
Of note, the Plaintiffs in Ms. L; etal v. ICE were certified as a class, thus permitting the nationwide injunction. The injunction was issued on the same day that Justice Thomas opined on the validity of federal courts issuing nationwide injunctions in the case of Trump v. Hawaii. The Supreme Court refused to rule on the issue in Trump v Hawaii but the issue may not be capable of escape as the Ms. L case winds its way to that court.
Monday, June 25, 2018
Wednesday, June 20, 2018
Enough outrage has been expressed individually and in print. Legislators agree that the practice of separating families at the border is horrendous but did not agree on legislation to stop it. Reports of the sounds of children's wails are heart-wrenching. Thousands of unheld and uncomforted children are caged. One guard was reported to say that all that was needed to coordinate the wails is a conductor. I imagine that in order to carryout the most despicable of orders, that guard and others harden their hearts.
The separation of young children and their parents was sinister. The President has no bottom to his cruelty.
Do we? Yes- I mean you and me.
In the years prior to his nomination, Donald Trump told the nation that President Obama was not born in the United States. Trump knew that wasn't true, of course. He was testing the American tolerance for lies and the extent of support of his outrageous behavior. That ensuing support gave Trump permission to engage in even more dangerous and outrageous behavior. Those behaviors have ranged from embarrassing to cruel.
There is a similarity of plan with recent events of separating children from their parents at the border. The President is testing the horror tolerance of those who do not support him politically. So far our response has not been commensurate to the offense. These are children being herded into cages. They are traumatized. They are screaming for their parents. But most of us went on with our lives without interruption, with the exception of perhaps the occasional Facebook post documenting our outrage.
While the number of public statements condemning the President's action rose and protests were planned, I ask was our response immediate enough? Why were we still working, vacationing and carrying on as if a new order is not upon us? Why were we not disrupting commerce? Why didn't we shut down universities and government? Most of us did not interrupt our lives to respond to the internment of our most vulnerable. By not responding en mass what horrors did we invite?
I was always moved by Niemoller's poem. I wondered if I would have the courage to resist.
I understand that the president's child separation action was our test and I wonder if we failed?
Sunday, June 17, 2018
Senator Edward Markey and Congressman Alan Lowenthal introduced the International Human Rights Defense Act of 2018 in both the house and the senate. The legislators seek to make the human rights commitment to LGTI rights a priority nationally and internationally.
The legislation would direct the State Department to continue its efforts in defending the human rights of LGBTI individuals globally. The bill would, among other terms, would require the State Department to develop a plan to address global discrimination against members of the LGBTI community. In addition, State would be required to create a position "Special Envoy on the Human Rights of LGBTI individuals.
The bill is co-sponsored by numerous legislators and is supported by Human Rights Campaign, Human Rights First, Council for Global Equality, American Jewish World Service, National Center for Transgender Equality, Robert F. Kennedy Human Rights and the American Psychological Association.
For more information about the bill, see here.
Friday, June 15, 2018
What has become frighteningly clear is that the Administration is moving quickly to deny that human rights are of any consequence. That human rights exist and human rights law has any influence is soon to be fake news.
In addition to the horrendous ripping of children and mothers at the US border, two recent actions support the administration's disregard of human rights. Earlier this week, Attorney General Sessions announced that victims of gang violence and domestic violence will no longer be eligible for asylum. In his announcement, Mr. Sessions stated that asylum was never intended to protect from these forms of violence. Yet the risk of death by those trying to escape results from the home state's refusal to protect its citizens from gang and domestic violence. This is a state, not private matter. Of course those most affected by this violence are women, LGBTQ individuals and children, who are particularly vulnerable targets of the President.
Now it appears that the US will withdraw from the UN's human rights council. The conceit used is US complaints that the council has passed too many resolutions condemning Israel for human rights violations. Whether that is accurate is irrelevant to the decision. The underlying indicators reveal that the President has wanted nothing to do with the HR Council since early in his tenure. The Administration has heard enough about human rights. Any discussion is over.
Thursday, June 14, 2018
In A Human Rights Code of Conduct: Ambitious Moral Aspiration For a Public Interest Law Office of Law Clinic, Prof. Lauren Bartlett addresses the development of lawyer ethics with a focus on the development of a human rights ethical code. The development of human rights ethics codes for our clinics is an important concept and one that opens all sorts of opportunities to engage students in developing the code, but also the professional tenor and goals, of the clinic.
The Introduction to this intriguing topic reads:
Incivility and unethical behavior in the legal profession have long been topics of concern in the United States. In recent years, many state and local bar associations, as well as the American Bar Association (“ABA”), have taken steps to address incivility, including adopting professional rules, amending lawyers’ oaths of office, and more. Yet current events continue to test limits of tolerance for incivility and unethical behavior. What is more, too many lawyers are unhappy and unhealthy in the legal profession, which has been tied to ethics and integrity. In these difficult times for the legal profession, moral aspiration, or the hope or ambition for high ethical integrity, is incredibly important.
Lawyers seek moral aspiration from a variety of sources, including other lawyers, religion, and cultural norms. They also seek the rules, standards, and guidance applicable to lawyers in the United States This Article offers an alternative source for moral aspiration for lawyering—human rights—and suggests establishing a human rights dignified, respectful, and safe space, and to hold colleagues, students, and others, to high ethical standards. The idea of a human rights code of conduct for a law office or law clinic builds on recent scholarship applying human rights principles to lawyering. In addition, this idea follows the recent proliferation of corporations choosing to adopt social justice and human rights related codes of conduct.
A human rights code of conduct provides practical, consistent, and significant ways to apply human rights principles to lawyering. Modeled loosely after professionalism codes or civility codes across the United States, a human rights code of conduct draws on human rights principles and provides ambitious moral aspiration for attorneys and law students. A human rights code of conduct provides practical guidance for navigating difficult ethical dilemmas, without necessitating additional regulation. A human rights code of conduct also promotes attorney and law student happiness and helps the reputation of the legal profession as a whole.
The full article may be accessed here.
Tuesday, June 12, 2018
Last week President Trump commuted the sentence of a 63 year old woman who has been imprisoned for over twenty years, having been given a life sentence for drug trafficking. Alice Johnson had been convicted in 1996 for conspiracy to possess cocaine and for attempted possession of cocaine. Her crimes were non-violent but her sentence was considered by many to be disproportional to the offenses. Ms. Johnson became involved with drug trafficking during a desperate time in her life. She had lost her job, was divorced and experienced the death of her son.
Advocates have been working hard for years to secure Ms. Johnson's release from an Alabama prison. How was Ms. Johnson able to obtain success? Kim Kardashian took up her cause after reading a tweet about the case. Ms. Kardashian began advocating for Ms. Johnson, first by contacting Ivanka Trump and then Jared Kushner. Finally, Ms. Kardashian secured a meeting with President Trump. Ms. Johnson had been denied commutation under the Obama administration. President Trump noted that Ms. Johnson was a model prisoner and executed the documents necessary to release the great-grandmother.
At the urging of Sylvester Stallone, President Trump earlier issued a full pardon for now deceased heavy weight champion John "Jack" Jackson.
Other pardons were less well received publicly, but involved the famous or notorious. Dinesh D'Souza and Lewis "Scooter" Libby are among those who received Trump presidential pardons. So be a celeb or find yourself one should you seek a presidential pardon during this administration.
Tuesday, May 29, 2018
Freedom of speech is the disguise behind which racism, misogyny and other forms of hate flourish. Without regard for professional and educational standards, businesses and universities refuse to intervene when speech is used to oppress. What may be permitted to say in public discourse has its limitations in workplace and educational institutions. But leadership in both arenas often refuse to confront hate speech and are supported in the workplace by employment cases that historically have tolerated high levels of hate before declaring an environment a hostile one. Flawed law does not justify racism and other hate in the workplace.
Now the NFL is flipping freedom of speech to block peaceful protest. Players who wish to engage in silent protest during the national anthem must do so off the field or risk being fined. While technically it is the teams that will be fined, owners are permitted to pass the penalties through to protesting players.
Freedom of speech gives every appearance of shapeshifting to accommodate the bullies. There is little in the way of institutional leadership protecting vulnerable populations locally or nationally. Those players who are forced to endure shocking levels of racism before a hostile work environment is declared, cannot themselves make peaceful, silent declarations against that racism without risking penalty. This hypocrisy goes beyond Jim Crow and emits the scent of slavery.
It would be self-defeating economically, but powerful demonstratively, if every black football player stayed in the locker rooms and refused to emerge until the rule is overturned. But that would once again place the burden of response on the victimized. It is the white players and fans who need to take a stand against racism and for freedom of speech.
Permitting through silence the manipulation of freedom of speech to accommodate the haters places our democracy in greater jeopardy and our silence makes us complicit.
Wednesday, May 23, 2018
The separation of families at our borders is horrific and inflicts multiple traumas on already traumatized people. Even more distressing is the abuse of unaccompanied minors. Many find the topic too distressing to discuss. But the abuse of unaccompanied minors has been examined by the University of Chicago's International Human Rights Clinic along with the ACLU's Border Litigation Project. The partners have issued a report entitled Neglect and Abuse by Unaccompanied Minors by US Customs and Border Protection.
Documenting both abuse of children, ages 5 to 17, and the failure of authorities to investigate complaints, a partial findings are: 25% of the children reported physical and sexual abuse; physical abuse included the use of stress positions, as well as beatings by Border Patrol Agents. Have reported verbal abuse including death threats. Eighty percent reported inadequate food and water.
The report documents many additional indignities including unsanitary conditions that place the minors in holding areas filled with conditions dangerous to their health, such as overflowing sewerage. While the report is disturbing to read, the provided information and the exposure of the brutal treatment of children is critical if there is to be any hope in creating change. Further information can be obtained at the ACLU website.
Kudos to Chicago's IHR clinic students.