Tuesday, December 5, 2017
December 1st was world AIDS Day.
Over 37,000 people in the US are newly diagnosed with HIV each year. 37 million people world wide are living with HIV or AIDS. The opiod crisis has increased the number of new transmissions. Women in abusive relationships are at increased risk for HIV. Yet many perceive the problem as no longer a crisis in the US because of the effectiveness of treatment (Art). But not everyone has access to treatment. Transportation issues remain a huge barrier to treatment, particularly in rural areas. The gutting of the affordable care act exacerbates the problem. A high percentage of men who have sex with men die from HIV/AIDS.
Those living with HIV experience workplace and housing discrimination, typically following the disclosure of private medical information.
And criminally, those living with HIV are at risk for prosecution if they have sex without disclosing their medical condition to the partner, despite the fact that taking ART as prescribed virtually eliminates any risk of transmission. Arrests and prosecutions under these criminal disclosure statues are disproportionately against people of color.
While the public impression is that HIV and AIDS is no longer a critical problem, those living with HIV and AIDS tell very different stories. For additional information on living with HIV here are just a few sources of information: Positive Women's Network; Center for Disease Control; and AIDS United.
Monday, December 4, 2017
By Margaret Drew
NBC executives should be worried. Their unwillingness to address sexual harassment is well documented. Disrespect for women exhibits itself in many forms. While the degrees of disrespect vary, they are interconnected. Matt Lauer should have been fired thirty seconds after his "interview" with Hillary Clinton during the last presidential campaign ended. During that interview, Lauer repeatedly interrupted Ms. Clinton. He diverted her from the intended topic of the president's role as commander-in-chief by frequently raising the well worn e-mail issue. When matters turned to issues of military leadership, Lauer reminded Clinton that time was short, attempting to prevent her from giving a comprehensive answer. And then Mr. Trump, on the other hand, was unchallenged, even when he made statements that could be easily disproved. More details of the interview may be seen here. NBC failed to discipline Lauer for what most female viewers recognized as misogyny. Hillary Clinton's turmoil during that interview and her split second decision-making on handling the dilemma is documented in her memoir What Happened.
And was NBC management not listening when Katie Couric revealed in 2012 that Lauer often pinched her on her rear "alot". That behavior alone was sufficient to fire Lauer. Then let's not forget that not only did NBC delay in reporting on the Trump/Bush sex videotape, NBC had it in its possession since 2005.
Either of the prior behaviors were adequate to alert NBC execs that there was likely more serious sexual misconduct going on. But those with the power to stop the abuse refused to investigate. Other actions by NBC were telling. The network refused to run a well-documented expose of Harvey Weinstein's sexual offenses written by Ronan Farrow, despite the network's approval of the article as well-documented. NBC's failure to honor its commitment to Farrow was puzzling, but consistent with the network's refusal to address mysoginy and sexual misconduct in any form. NBC would have had the scoop on the Weinstein debacle. The New Yorker ran the article instead. A more recent New Yorker article refers to NBC's actions post-Lauer as the "Theater of Accountability."
Are NBC execs worried that the next people fired for sexual misconduct will be one of them?
Tuesday, November 28, 2017
With an upcoming focus on extreme poverty, discussion must be had on how economic decisions are made in the US. Buddhist economics looks for a "middle way" between profitability, full employment and sustainability. One false foundation of US economics doctrine is a belief in certainty. We see certainty, or perhaps it is inflexibility, playing out in the tax plan pending in Congress. Those claiming that trickle down economics theory is valid believe - or claim to believe- that the more money retained by the wealthiest business owners, the more jobs that will be created. While this theory has been disproved, the notion is hawked with certainty.
In the other extreme, living a life of prayer and mediation may be ideal for some, but few can afford the luxury of a contemplative life, absent a wealthy patron. For most, spirituality must be woven into a life that includes work so that the individual can survive, meet basic needs and sustainability. Finding balance between entitlement and necessity would be one middle way. In order to establish full employment for those who need resources to support self and family, that middle option must be developed. There is no one prescription except that in Buddhism, one would be a consumer only to the extent that one's needs are met and sustainability must be a factor is business decisions.
US corporate economic policy rests in large part upon obsolescence. Products are often not made for sustainability and require frequent replacement. In other instances consumer desire for the latest version or upgrade drives consumer purchasing, again without reflection on sustainability. Attachment to goods is countered by the Buddhist principle of non-detachment. Reductions in force with no work replacement for employees counters Buddhist belief that all are connected. In Buddhist economics, sustainability, fairness and compassion are equal parts with profitability.
How do we begin to find the "middle" economic way? Business must view the creation of a healthy workforce as a priority. Corporate responsibility needs to extend to the health and happiness of employees. Business must recognize that executive success is best measured by the connection to the people that comprise the workforce, not to the dollars earned. Supporting each individual to engage in "right livelihood" is essential to Buddhist economics but also to the sustainability of US ideals of opportunity. Demanding that shared prosperity benefit all does not require income leveling. Once the lowest of employees is paid an amount that permits workers to meet their needs and the needs of their dependents, CEO compensation may be irrelevant.
Tuesday, November 21, 2017
The celebrity men are falling. Charlie Rose is the latest formerly venerated but large egoed man to fall under the weight of sexual harassment allegations. The line of the dethroned is getting longer, but the time is getting shorter.
During the 1980’s I was one of a handful of lawyers who tried divorce cases on grounds of abuse. “No Fault” divorce had arrived in all but a few states. Trying cases on any other grounds was considered distasteful. But my clients wanted their truth heard in court. The judgments my clients received would today be considered amazing. In the 80’s the judgments were viewed as just compensation for the suffered abuse.
Then came the 90’s. Domestic abuse was discussed widely and openly. Those jurisdictions that had not yet enacted civil protection order statues, did so. Slowly women, who were primarily if not exclusively the petitioners, came forward to demand protection. Judges heard stories of abuse that shocked them.
But then things changed.
So many women came forward seeking protection from abuse that judges assumed that not all of the women’s claims could be true. Judges had difficulty accepting the prevalence of gender bias. By the end of the decade, the seeds had been sown in family court culture for women seeking divorce to be found not credible in that surely women were seeking protection orders only to gain a “leg up” in the divorce proceedings. No mind that all of the data shows that seeking a protection order does not result in an advantage for the abused parent. Quite the opposite. Raise abuse when children are involved, and the mother's presumed motive will be to "alienate" the children from their father.
So I am compelled to raise the alarm. With so many women, and some men, coming forward alleging sexual harassment by celebrities what will be the tipping point where accusers are branded as liars? Am I being an unnecessary alarmist?
We have not scratched the surface of sexual harassment. Rather than #MeToo, perhaps #NotMe would give a more accurate count of who has and has not been the victim of sexual harassment. I am afraid that our non-celebrity sisters will be deprived of their opportunity to air their grievances and be believed. That is where the work needs to be done. Finding platforms for the most vulnerable to air their stories without retaliation has a short window.
So if you have a plan – whether to provide legal services to those who tell their stories and are vulnerable to immediate discharge from work or other consequences – or if you hope to publicize how common sexual harassment is in all levels of our nation- do it soon.
File legislation, record the stories of our unknown sisters, bring the powerful to the workplace to prevent firing when disclosures are made, Prepare for the backlash and have a plan to defeat it - but do it within the next fifteen minutes.
Sunday, November 19, 2017
The question was: does a jury need to know a person's immigration status? The Supreme Court of Washington answered No! In most civil and criminal cases, the court found the information to be inadmissible. The court's creation of a new evidentiary rule addresses the bias that influences decision making when the finder of fact hears irrelevant information on immigration status. There are some exceptions but by and large status information will not be part of the record.
The case in question was a mini-bias exercise. Carpenter Alex Salas was injured on the job. In case no. 1 the jury found his employer to have been negligent and found for plaintiff Salas. Trouble came when the jury awarded no damages. After appeal the case came back for re-trial and the next jury awarded Mr. Salas $2.6 million. The evidence submitted at each trial was the same with an exception - the first jury heard evidence that Mr. Salas was in the country without legal status. The second jury never heard that information.
The appeal that followed the first trial was a precursor of the recent opinion. That decision found that the judge had abused discretion and led to the creation of a new rule of evidence - number 423 - Immigration. The rule excludes evidence of status in civil and criminal cases with narrow exceptions, such as when status is relevant to the crime or the case.
Washington is the first state to create an evidentiary rule on this issue. This rule will be a relief to immigrants in a variety of cases. I particularly think of abused immigrant women who consistently face bias in custody decisions when the court is convinced that even the possible threat of deportation warrants an award of custody to the abusive father. A myriad of other litigants will benefit from this discovery restriction. This is a wonderful opportunity for advocacy to all other US jurisdictions to equalize justice for immigrants through adoption of a comparable rule.
Tuesday, November 14, 2017
Former UN Secretary-General Kofi Annan has set out his advice for world citizens to address some of the most serious problems facing humankind. Those problems include the widening gap between the wealthiest and the poorest; environmental and natural resource degradation, as well as man-made climate change.
Annan makes three recommendations:
1. Make sure that business does not forget the poorest among us. As Annan states: Business know that tending to the neediest in society is good for business. By raising income levels, the consumer base expands.
2. Create private-public partnerships. Among other goals, these partnerships create employment opportunities, particularly for women and girls.
3. Businesses must assure us that their decision making will have ethical and sustainable foundations.
Annan concludes: "With the full engagement of the private sector, globalization can be harnessed into a process which ensures prosperity for all, while protecting our planet. So let us all start living up to this responsibility today and lay the foundation for a brighter tomorrow."
The full essay can be read here.
Sunday, November 5, 2017
by Margaret Drew
This post is part of our Scholarly Voices series. We are exploring how our conditions have changed one year after the Trump election.
The short answer is: we are better lawyers. Past generations of lawyers were challenged to find courage in order to continue fearless advocacy. The McCarthyism of the fifties and the civil rights movement of the sixties and seventies tested lawyers’ commitment to the rule of law. In the past year, lawyers of our generation are being tested in much the same way. The difference is that McCarthyism and the brutality with which civil rights demonstrators were met left no room for moral or legal ambiguity.
The challenges lawyers face today are not as conspicuous as earlier times. Today’s threats to lawyering and to law are happening more quietly. In single instances, lawyers are being threatened by the government. For example, last week US Marine Corp Brigadier General John Baker was placed under house arrest in Guantanamo. As one report noted: “His offense was standing up for the rule of law.”
Baker heads the Guantanamo defense counsel and he disbanded a defense team claiming that the team could not ethically represent the defendant because of government surveillance of attorney-client communications. The judge hearing the trial ordered Baker to reinstate the team, based upon his opinion that Baker had no authority to take the action he did. After Baker refused to do so and refused to testify, he was sentenced to 21 days house arrest. Before a federal court could act on a habeas petition on Baker’s behalf, the Guantanamo judge released Baker. Courage comes in many forms. This time it came from a military lawyer.
Since last November, lawyers and judges have been on the frontlines of protecting due process and other fundamental rights. Lawyers and law students responded en mass to represent those affected by the travel bans. Other lawyers responded to appeals, whether through direct representation or filing amicus briefs. Judges courageously stayed the travel ban and other executive orders. What remains to be seen is what role SCOTUS will play in efforts to preserving constitutional protections.
Surely, there is more to come. But we are ready. An unintended consequence of the election: lawyer mobilization.
Wednesday, November 1, 2017
Our One-Year-Later Series: Who Knew? Anti-Sexual Harassment Responses Accelerate In The Trump Year One
by Margaret Drew, co-editor and Professor, University of Massachusetts School of Law
More dramatic and large-scale responses to reports of sexual harassment have occurred in the past year and a half than in recent memory. The seeds of this remarkable change began during the last presidential campaign and have grown exponentially since the election.
Bill Cosby’s pattern of sexually assaulting women was notorious as well as traumatizing for his victims. The hung jury that resulted from his prosecution by Andrea Constand was indeed a huge victory. Sexual assault trials are largely unsuccessful because of negative stereotypes of victims that remain in the psyche of jurors and are promoted by defense counsel. A lack of understanding of the impact of trauma on survivors compounds the difficulty of prosecuting those who sexually assault. Women recognized this hung jury as a victory. And much followed.
The forced resignation of Roger Ailes, Fox News founder, after sexual harassment allegations by Megan Kelly and others happened mid-campaign, in proximity to the Cosby trial.
The recent removal of Harvey Weinstein from both Miramax and the Academy of Arts and Sciences following dozens of allegations of sexual harassment and sexual assault was unprecedented. This was followed by public accusations against “celebrity” chef Josh Besh. Political author and analyst Mark Halperin was removed as a CNN commentator when women came forward with sexual harassment allegations against him. So far, Halperin is the only one to take responsibility publicly for his behavior and to receive therapy. The therapy is seemingly effective as the allegations stemmed from Halperin’s earlier years with ABC news. President George H. W. Bush has been inappropriately touching women for years, and apologized only now after allegations surfaced. Expect more public consequences for men who harass females.
Women found their voices with the election of President Trump. The Women’s March on January 21st, both in D.C. and around the world, was the largest public demonstration in our history. Yes – it was even larger than the number of inaugural attendees! Women united created a powerful voice and there is a direct link to women being empowered to make public allegations of sexual harassment, including sexual assault and the public fall of so many serial abusers.
My colleague and co-blogger Jeremiah Ho suggested that perhaps the rise in anti-sexual harassment responses is a direct result of our failure to keep a sexual predator out of the White House. I think he is on to something. When I participated in the Women’s March, I thought the motivation for marching was multi-layered. Primarily I thought women had recognized how much more dangerous and insecure their children’s and grandchildren’s world would be under Trump leadership. That and other concerns are valid. Having devoted my professional career to assisting survivors of gender violence, and seeing little progress in the employment and sexual assault arenas, perhaps I was unaware of how profoundly women generally had been affected by the Billy Bush tape. Perhaps the primary motivator was failure of the country to denounce candidate Trump after release of his infamous remarks. Was the election of a known and proven sexual predator to our highest office the trigger to women’s activism?
Historians will debate that question. But we do know that one year later the consequences of the election include women exposing their oppression, being believed, and seeing large scale consequences for their oppressors. This is not only news, it is new.
Next steps: most of the accusers to date are white. I realize that show business is a largely white business, which has been a matter of controversy of its own. We need to find a way to bring the same power to the voices of our sisters of color.
[Ed's Note: This is the second in our series of Human Rights Law Prof reflections on the past year, following the November 2016 election. Stay tuned for more! The first blog in the series, by Fran Quigley, is here.]
Sunday, October 29, 2017
Historically, Cambridge, MA has been a proactive Human Rights community. The city has declared many protected classes in the city. Among them are Race, Color, Sex, Gender Identity and Disability. A call has been made to add homelessness/homeless to the city's protected classes. Those who are homeless experience discrimination in nearly every aspect of their lives. Without a home address, those who are homeless face discrimination in employment, public benefits, and a multitude of other advantages that those with residences more easily attain. Obtaining a photo ID can be insurmountable in some locations due to cost and lack of accessibility to state authorities who issue identification documents.
We know that those who are homeless are more vulnerable to violence. Over half of women who are homeless report already having been in abusive relationships. Once living on the streets, those women join others who are homeless in being vulnerable to random, vicious attacks. The proposed addition to the Cambridge laws would elevate attacks on the homeless to hate crimes.
Other human rights cities might consider the same or similar protections for the homeless. Given the proposed changes to nation's tax code and the resulting reduction in funding for services, we can expect more of our residents to experience homelessness. Municipalities need to protect this particularly vulnerable class and prepare for the rise in the homeless class in coming months and years.
Thursday, October 26, 2017
Produced by the Marshall Project, We Are Witnesses is a collection of short videos describing the impact that the criminal justice system has on those who encounter it. The videos record judges, police, family members of those who have died in the system, ex-prisoners and others whose lives are changed through contact with the massive and often cruel process.
Erica Garner is one of those who speaks to the camera describing how she arrived at the scene of her father's death. As Jennifer Gonnerman reports: "These testimonials inevitably prompt questions of culpability-as well as the uncomfortable realization that the "we" in "We Are Witnesses" may apply not only to the individuals speaking here but to us all."
Tuesday, October 17, 2017
"The death penalty has no place in the 21st century" said UN Secretary Guterres as part of World Day Against the Death Penalty. The event took place at the United Nations and Mr. Guterres was joined by the Assistant UN Secretary for Human Rights, Andrew Gilmour. According to UN News Center, “Some governments conceal executions and enforce an elaborate system of secrecy to hide who is on death row, and why,” noted Mr. Guterres, underscoring that lack of transparency showed a lack of respect for the human rights of those sentenced to death and to their families, as well as damaging administration of justice more generally."
The News Center goes on to note that "The Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), now ratified by 85 States around the globe, requires its parties to abolish death penalty. It is the only universal international legal instrument that aims to end the practice."
Further coverage may be found at deathpenaltyinfo.com
Thursday, October 12, 2017
Those of us litigating intimate partner abuse cases have been privy to the tactic of false equivalencies as a means of protecting male privilege. One particularly vexing case I tried resulted in extensive findings of the husband's abuse of the wife. The judge found also that the wife had been inhospitable to her mother-in-law. The latter finding was justification for the judge to ignore the abuse in fashioning remedies. Consequently, the husband's abusive behavior remained unconsidered when the judge gave unfettered access to the children. This is not an isolated case. In both petitions for civil protection orders and family law decisions, courts fail to protect partners and children if the abused partner failed to behave in the perfect, mythical manner embedded in the judge's stereotypes. In these cases, false equivalency is used to protect white male privilege. The faulty premise can also be used as a sword.
The same discriminatory technique plays out in race cases, as well. A particularly shocking example happened this week in Virginia. A magistrate issued a warrant for DeAndre Harris, a black man who had been viciously beaten by white supremacists following a "Unite the Right" rally. Mr. Harris suffered spinal injuries and a head wound requiring ten stitches. Then a man who claims to be an attorney and a "Southern Nationalist" filed a police report and then a request for a warrant for the arrest of Mr. Harris alleges "unlawful wounding", a felony. In Virginia a magistrate may issue the warrant, even where, as in this case, a police investigation is complete. As in civil protection order hearings where abusers file retaliatory petitions for protection orders, the goal is to discredit the victim. An additional benefit is the victim's reluctance to appear in court given that the victim could have adverse consequences. Dropping the cross complaints is often the result, leaving the victim unprotected and reluctant to seek future help.
My sense is that this is the goal of the white supremacist. While three men have been arrested for beating Mr. Harris, cross charges will adversely impact any jury. Confusion and reluctance to convict will result.
This is the time for courageous prosecutors and police to step up and request dismissal of the charges for lack of evidence and because the allegations are retaliatory.
Thursday, September 28, 2017
The actions of African American football players kneeling during the national anthem had been noticed, but not so controversial, prior to Number 45's tweet. But post-tweet, "taking a knee" has become just another tool to divide the country along racial lines. Like it has for others who avoid examination and exploration of truth,use of diversionary tactics has been wildly successful for 45. But in this instance,
backlash has been swift. Football owners and players have "taken the knee" after the President angrily demanded that any football player who kneels should be fired.
Georgetown Law Center students and faculty joined the kneeling protests. Last week, Attorney General Sessions traveled down the road to Georgetown Law Center to extol the virtues of free speech and condemn its "attack" on campuses. Session remarked: “There are many ways these players, and all the assets that they have, can express their political views other than in effect denigrating the symbols of our nation, the nation that’s provided our freedom to speak and act,” Sessions said. Those resisting equality claim that free speech is supported by our constitution and it is just this form of protest that is inappropriate, or - the protest is unwarranted or premature (choose your descriptor). During the Obama campaign, and again during Hillary Clinton's, we heard "the country isn't "ready" for an African American, a woman (choose your noun). It is always the timing or tactic that is wrong. But that reasoning is hollow.
I was a Viet Nam war protester. At the time, I was uncomfortable with flag burning. I am not sure how I would respond today. I knew that the flag (and draft card) burning kept the anti-war issues in the public dialogue and the resulting court cases reaffirmed first amendment rights. And sometimes it is a violent act that wakes up resisters. But I saw, also, how flag burning created the diversion pro-war people relished. For those less willing to hear the protesters' reasons for their demonstrations, focusing on flag burning provided an effective rationale for not addressing the flawed underpinnings of the war.
Taking a knee is respectful protest. Kneeling is effective, as demonstrated by the response of teammates and owners. Kneeling incorporates the spiritual into the protest, giving it a level of credibility not seen in other forms of protest. Kneeling induces silence, making the protest more powerful.
Focusing on claimed disrespect to the flag is the diversion that will prevent many whites from considering the underlying reason for protest. The president couldn't care less about kneeling football players. He cares that the nation remains divided. Therein lies his power. And his demagoguery.
Tuesday, September 19, 2017
Silencing is a powerful tool of oppression. Creeping authoritarianism has reinvigorated silencing as punishment and a way to limit free speech.
On September 11th, 24 of 28 University of North Carolina trustees voted to ban the UNC Chapel Hill's Law School Center for Civil Rights from engaging in litigation. This ban follows the Center's long struggle to maintain academic integrity and freedom.
Trustee Steven Long, previously affiliated with a conservative think tank, spearheaded the vote. He claims that a state university should not be “hiring full-time lawyers” to sue anybody, much less the state government. He said that the center defines civil rights in a way that’s too political, and that its litigation efforts go beyond its academic mission. Of course, clinics and centers involved in litigation are a staple of US clinical legal education. The University's Board Chair, Lou Bissette, acknowledged that he was not aware whether the Center's work was consistent with the law school's academic goals. He simply felt that the law school should refrain from civil rights litigation because "people do not agree." Bissette went on to say that he understood that law school clinics can engage in litigation because they operate under the supervision of the ABA. Confused, perhaps, Bissette seems to have missed the point.
Silencing often back fires. The Center and its attorneys are privately funded. While litigation through the law school center may formally halt, the funders could decide to simply move the project offsite, where law students could still participate as clinic students or externs. Or, Chairman Bissette may have provided a more simple remedy. Dissolve the Center and create the Civil Rights Clinic. Either way, silencing could be the foundation for promoting an even louder voice for civil rights.
Thursday, September 14, 2017
Earlier this week, the Senate unanimously passed a joint resolution condemning hate groups. In an amazing show of bi-partisan collaboration, the Senate expressed its sorrow for those who were injured or killed at Charlottesville. The resolution, submitted by three Republican and three Democratic senators, calls upon the President and his cabinet to use all available resources to fight hate groups, including White supremicists, Neo-Nazis, and the Ku Klux Klan. The resolution has its origins in the Charlottesville terror and acknowledges the loss of life, as well as other injuries inflicted to both police and civilians.
The President's failure to condemn the racist attacks in Charlottesville offended the Senators as much as did the events themselves.
The resolution may be read here.
Tuesday, September 5, 2017
A federal court judge ruled last week that the descendants of former slaves of Cherokee Indians have the legal right to membership in the Cherokee Nation. At the time of the Civil War, some Cherokees kept slaves. When the Civil War ended, the Cherokee Nation signed a Treaty with the United States agreeing that "“never here-after shall either slavery or involuntary
servitude exist in their nation” and “all freedmen who have been liberated by voluntary act of their former owners or by law, as well as all free colored persons who were in the country at the
commencement of the rebellion, and are now residents therein, or who may return within six months, and their descendants, shall have all the rights of native Cherokees . . . .”
Trouble began when the Cherokee Nation changed its criteria for eligibility in 2006. The criteria was amended to recognize blood only. This precluded descendants of freed slaves from claiming membership in the tribe. This change disenfranchised approximately 2800 descendants of freed slaves. In rendering its decision, the court noted: Although it is a grievous axiom of American history that the Cherokee Nation’s narrative is steeped in sorrow as a result of United States governmental policies that marginalized Native American Indians and removed them from their lands, it is, perhaps, lesser known that both nations’ chronicles share the shameful taint of African slavery."
The federal court decision clarifies that the tribe must treat tribal members equally whether that membership comes by blood or freed slave descendency. The tribe has accepted the outcome. Cherokee Nation's Attorney General Tom Hembree said:
Thursday, August 31, 2017
Bail in the US court system has resulted in human rights violations for thousands of defendants. Anyone who watched 60 Minutes this past week would have seen the impact of bail requirements on the hundreds of detainees at the Cook County Jail and the efforts of its warden to remedy a broken system. Nearly all of the detainees were men of color and at least half of whom were being held on non-violent offenses such as driving without a license, stealing small amounts of goods. The warehousing of men of color was evident.
Bail has been used as a mechanism to ensure that those too poor to pay bail are further locked into poverty. US courts have historically required bond (bail) for misdemeanor charges. Even the lowest of bail, sometimes $100.00, is beyond the financial ability of many defendants.
Civil and human rights violations result. The Universal Declaration of Human Rights demands that each individual enjoy the right to work. Yet for the poorest among us, minor infractions can result in loss of work because of incarceration pending trial. Poor defendants' further decline into poverty is accelerated due to the resulting unemployment. Among other human rights violations, is the right to fair trial. Defendants forced to remain in custody are denied access to counsel. Even if counsel is appointed, which is not assumed at misdemeanor arraignments, those in custody are dependent upon the unpredictable visits of counsel. They are deprived of the ability to collect exculpatory evidence.
Not least among the violations is the lack of respect and dignity endured by some of our most vulnerable residents. Mothers accept plea deals so they can be reunited with their children. Fathers plea so they can return to their families, hoping to be able to continue supporting them through work and parenting.
Bail reform projects have been increasing across the country. In Texas, a civil rights lawsuit was filed challenging misdemeanor bail practices as due process violations. Federal District Court Judge Lee Rosenthal ordered Harris County to stop the practice of permitting defendants in misdemeanor cases to languish in jail pending trial because they cannot afford bail. Harris County encompasses Houston and should be a warning to other cities. The ruling on the temporary injunction is 193 pages long and details myriad constitutional violations. Given the extent f the court's deliberations and examination strongly portends Plaintiff's success on the merits. In Massachusetts, donations to bail organizations have resulted in hundreds of the incarcerated being released as the organizations post bail on behalf of the poor.
This sort of large-scale disruption has been a long time coming in the criminal justice system. Out of the chaos will come fiscal benefits to municipalities who no longer will incur the expense of housing indigent misdemeanor defendants. More locations are voluntarily reforming bail schemes. Colorado is reviewing its bail system while New Jersey eliminated most monetary bails.
At its annual meeting in August, the American Bar Association recommended major bail reforms.
Our bail system is one of our national human rights shames. Kudos to those creating change.
Monday, August 21, 2017
Law schools are reporting increased incidents of angry students making comments that parallel some of the current, public hate speech. Schools report race based incidents, a few reporting physical, or near physical, encounters.
Some professors believe they are dis-empowered to address classroom "discussions" where students not only express biased views, but do so in angry and disrespectful ways. Professors who view their dilemma solely from a "free speech" perspective limit themselves. The recent tour of "conservative" speakers claiming their voices are silenced on "liberal" campuses may have contributed to this faculty sense of dis-empowerment.
But there are other pedagogical considerations. Law schools train professionals. Reasoned civil debate is one goal of law school pedagogy. We teach students to view legal claims and facts from a variety of perspectives. We encourage them to recognize when to separate out the personal from the professional and likewise, when to consider the personal as inevitably intertwining with the legal. Underpinning our training is not just the ability for lawyers to objectively assess other perspectives, but the necessity of doing so. The practical consequences of failure to do so will result in our students being out-strategized by opposing counsel. More immediately, their inability to consider any merit of opposing arguments will have a negative impact on grading. In practice, inappropriate tone will cost lawyers business from clients who recognize the connection between professionalism and success. In law school, voicing opinions unsupported by reliable data or law impacts the professor's assessment of student performance.
So administrators and faculty need to broaden their own perspectives on the deterioration of professionalism within the law school community. A student's unwillingness to engage in civil debate is a choice. Disrespectful speech is unprofessional and when done within the context of classes is a grading consideration.
Freedom of speech is honored. But freedom of speech does not support disrespectful speech. Not in the professional school context.
Part of the reason administrators and professors focus only on freedom of speech is fear of lawsuits by those claiming their speech is unlawfully suppressed. This is not the time for fear based decision-making. This is the time to focus on our obligations as teachers to train our students in professionalism and the art of debate. Legal ethics demand professionalism.
Prof. Ho has written thoughtfully about pushback on "political correctness" as deflecting from underlying incivility. Incivility certainly has evidenced itself within and without the academy. This pushback is often an excuse for avoiding civil debate. I view current dialogue from an additional dimension. Pushback on "political correctness" often veils bias whether delivered in a civil or incivil manner. So before my students engage in disrespectful speech they will know two things. To the extent possible, political labels are eliminated from our discussion. We will focus on ideas and empirical evidence without regard to whether the speaker is Republican or Democratic. We leave the words liberal and conservative unspoken. Doing so forces attention on ideas and not on the speakers.
Secondly, students are aware that how they present their ideas is a professionalism issue that will be reflected in grading. I am confident that I and other professors are capable of distinguishing between passion for a topic and resistance to self-reflection.
Effective leaders do not throw up their hands and relinquish responsibility under the guise that free speech bars any proactive and protective action. Leadership finds ways to protect the dignity of all members of the community. Where are Human Rights? Eleanor Roosevelt asked. They are local, she instructed. They are in places that are not on any map. They are found in law schools, too.
Wednesday, August 16, 2017
Mr. Trump is at risk of impeachment, if not indictment. His advisers, former and current, including family members are at risk. Foreign leaders no longer trust Mr. Trump with confidential information. In short, we have a narcissist under siege. As anti-hate rallies are being held across the country, President Trump continues to appeal to the basest levels of human behavior. President Trump would consider the eruption of civil and international war righteous.
Mr. Trump is neither a clown nor a buffoon. He is a danger. His ego is not being fed, other than through weekly cabinet sessions where his minions sprinkle praise upon him. Lack of ego feeding, combined with resistance to him as a leader, has created conditions that will lead to destruction. The only question being his or ours.
If Mr. Trump cannot receive what he perceives as a deserved level of adoration, he will do what he can to cause the disruption of civil society. Disruption, if not destruction, of our society would be appropriate punishment from this narcissist's perspective.
Our governmental leadership parallels pre-war Germany. Our nation has the opportunity to defeat Trump-fascism. Haters are in the minority. Organized resistance must happen on the national and local levels and must be strategic and persistent. Subsequent posts will document how resisters are organizing and what tools seem most effective. We encourage our readers to share their experiences.
Thursday, August 10, 2017
The US record on gender equality is dismal. Rwanda, largely as a consequence of the loss of men in the 1994 genocide, has made significant progress in the legal status of women. At that time, the population of Rwanda was 70% female. The Rwandan constitution ensures gender equality in all matters. In the 2013 elections, 64% of the members of parliament were female. Women are guaranteed three months paid maternity leave.
By contrast, the US guarantees no paid maternity leave. In the recent health care discussions, some men wanted to remove health care coverage for maternity. 86% of Rwandan women participate in the work force compared with 56% of US women. However, despite Rwandan laws requiring equality for women, true equality has not been achieved. Women earn 88 cents for every dollar earned by men. Significantly, Rwandan women experience domestic violence at the high rate of 1 in 3. Recently progress has been made in enforcing laws against abusive men, but the most significant barrier to stopping violence against women universally is men's culture in opposing gender equality. In a story reported in WeNews, woman's advocate Peace Ruzage, of Aspire Rwanda, said "“The problem of violence against women in Rwanda, as with many African countries, is rooted in the cultural beliefs and notions of masculinity reinforced through generations.” True for the US as well.