Tuesday, September 15, 2015
Check out these three exciting human rights conferences coming up in October:
First, on October 5, the Center for Human Rights at University of Washington School of Law presents “Access to Information as a Human Right.” Grounded in the UW CHR’s partnerships with organizations and communities struggling for truth and accountability in post-war El Salvador, the conference will explore the right to access to information as a frontline of transnational campaigns for justice. More information is available here.
Second, on October 9-11, the University of Washington School of Law will host a conference on The Human Right to Family Planning. Billed as the first conference of its kind, the event will bring together "advocates, doctors, nurses, lawyers, public health professionals, pharmacists, politicians, academics, researchers, NGOs, donors and others working to ensure family planning services are guaranteed for all people!" For more information, click here.
Third, on October 16-17, the University of Chicago's Pozen Family Center on Human Rights sponsors a conference titled "Human Trafficking, Labor Migration, & Migration Control in Comparative Historical Perspective." Information on speakers and registration is available here.
Do you know of other conferences that would be of interest to our readers? Send us an e-mail, or submit a comment to the blog.
Monday, September 14, 2015
Welcome Dayton, Welcoming America: Cities and Counties in the U.S. Welcome Refugees and Other Immigrants
This summer I moved from Washington, D.C., to Ohio where I have taken a new position as Director of Law Clinics and Assistant Professor of Law at Ohio Northern University in Ada, Ohio. I have never lived in such a conservative area and bringing human rights home has taken on new meaning and presented new challenges for me here (for example, instead of facing home
schoolers at Senate hearings, I now face homeschoolers every time I walk out of my house and often in my house). And yet, there are incredible human rights movements and opportunities, right here, on the North Coast.
With news of anti-immigrant rhetoric flowing from the mouths presidential candidates and the refugee crisis in Europe (including right here) drowning out pretty much everything else this week, I latched on to a couple of news items on refugees and other immigrants that are relevant to human rights and my new home.
The first was from earlier this week when the Pope urged every parish in Europe to take in one refugee family. The second was a statement released by the U.N. Special Rapporteur on the human rights of migrants urging Europeans to start focusing on, among other things, “investing in integration measures – especially through supporting the action of cities – and developing a strong public discourse on diversity and mobility as cornerstones for contemporary European societies.”
It hit me that Dayton, Ohio, is way ahead in welcoming refugees and other immigrants. As are Columbus, Akron, and Cincinnati, Ohio. So are Detroit and East Lansing, Michigan. These cities are among a long list of municipalities working to actively welcome refugees and other immigrants to help grow their economies and reverse population declines. In fact, cities and counties from 33 states across the U.S. during the week of September 12-20, 2015, will be celebrating contributions made by immigrants in their communities and trying to spur local policies on inclusion. For example, Welcome Dayton, is holding a variety of events including a citizenship clinic. Welcoming America, an umbrella network for the municipalities and groups working on local immigrant-friendly initiatives, has a list of events being held across the U.S.
While I recognize that welcoming immigrants at the local level is very different than the consequential step of the federal government taking action to welcome refugees from Syria and Eritrea, I see this as a very important human rights action at the local level and something that should be replicated widely. In my mind, this is part of the “Trickle Up” effect that Risa Kaufman has written about on this blog before.
As it is important to always walk the walk to bring the human rights home to the most local level, at home and personally, I hope you will get involved in some of the Welcoming America events near you. If you want to take a big step to #welcomerefugees to your home, there are a couple of organizations that are taking applications for foster families willing to host unaccompanied refugee or other immigrant youth.
By the way, it can be pretty lovely here in Ohio. Here’s a photo from my drive to work:
Friday, September 11, 2015
With the refugee crisis boiling over in Europe and President Obama's announcement that the US would accept 10,000 Syrian refugees, the Boston University International Law Clinic's late 2014 report, Protecting Syrian Refugees: Laws, Policies, and Global Responsibility Sharing, provides some important background and perspective. The result of two years of fieldwork and legal/policy analysis, the report develops a series of original proposals for a comprehensive worldwide plan of action that involves a mixture of short-term and long-term resettlement strategies, including approaches to social integration. The report is a companion piece to a recent publication from Oxford addressing the issue from a European perspective. Kudos to the BU law students and their faculty advisor, Susan Akram, for taking on such a complex and fraught issue, and contributing to the debate about human rights approaches to this refugee crisis in the US and abroad.
Thursday, September 10, 2015
By Risa E. Kaufman, Executive Director, Columbia Law School Human Rights Institute; Lecturer-in-law, Columbia Law School
At the end of this month, an extraordinary group of world leaders will gather at the U.N. in New York to adopt a new agenda intended to eliminate global poverty by 2030. Countries have been negotiating the terms of these anti-poverty goals for several years. I’ve previously noted the significance of the Sustainable Development Goals’ (SDGs) explicit incorporation of human rights, and, with David Udell of the National Center for Access to Justice, remarked on specific implications of Goal 16, which calls on the United States and all countries to ensure access to justice as a means of accomplishing the larger goal of ending poverty.
The SDGs are not perfect. Nevertheless, with their remarkably broad scope and emphasis on universality and human rights, the SDGs offer a new tool and significant opportunities for U.S. social justice advocates. Here, I suggest five reasons why U.S. human rights advocates should pay attention to the SDGs.
The SDGs potentially will generate a significant amount of data related to U.S. human rights concerns. The SDGs are comprised of 17 goals and 169 targets on a remarkable array of social, economic, and environmental issues. By March 2016, the U.N. Statistical Commission will release a set of global indicators to guide the data collection that will help countries achieve the goals and targets. Each country, including the United States, will be expected to draw on those global indicators to form its own national-level indicators.
Through these global and national-level indicators, the U.S. will track its progress on human rights concerns including gender equality, maternal health care, access to justice, housing, hunger, education, clean water and sanitation, climate change, employment, and inequality. Thus, the SDGs will generate important statistical information which potentially will influence government programs, research, and funding, and which U.S. advocates can incorporate into their advocacy with government officials, the media, communities, and interested stakeholders.
2. Reporting Opportunities
The SDGs offer new opportunities for advocates to report on U.S. progress (or lack of progress) in improving conditions on a range of human rights issues. The SDGs call on each country to track how it is implementing the goals and targets, and to engage with civil society to conduct regular national-level reviews. Though the U.S. has not yet developed the precise mechanism it will use to monitor its implementation of the SDGs, it is expected to do so once the global reporting system is established. Because the SDGs track human rights issues, advocates will be able to use the process to raise awareness around human rights concerns within the United States, particularly on issues concerning economic, social, and cultural rights (such as access to healthcare, education, and housing). In addition, the goals, targets, and indicators will offer important benchmarks for monitoring and reporting on U.S. human rights treaty compliance and human rights progress during the Universal Periodic Review process, as well as offer U.N. special procedures important information with which to assess U.S. human rights progress and concerns.
3. Government Engagement
The SDGs offer significant opportunities for U.S. human rights advocates to engage with the federal government on domestic human rights concerns. The SDGs are intended to be highly participatory, and indeed in international negotiations over the terms of the SDGs, the United States championed Goal 16’s inclusion of participation and transparency. Moreover, the U.S. Chief Negotiator for the Post-2015 Process recently noted that the SDGs and their emphasis on “leave no one behind” largely reflect U.S. domestic policy priorities. Thus, advocates can and should engage in dialogue with the U.S. government as it develops the national-level indicators that the United States will use to measure its progress with the SDGs, as well as what process it will use to review progress at the national level.
Through these conversations, advocates can give voice to areas of human rights concern in the United States, as well as ensure that civil society plays a key function in reviewing progress. As the United States has sought to do with the Universal Periodic Review, it can use the SDGs as an opportunity to model transparency and inclusivity and engage with civil society to determine relevant national level indicators, thus sparking important conversations around pressing human rights concerns within the United States.
4. Cross-Global Learning
By establishing universal goals and a global reporting mechanism, the SDGs offer opportunities for U.S. advocates to learn from advocates and reformers around the world working to ensure robust implementation of the SDGs in other countries. Global-level indicators will generate data that will promote cross-global comparison, as well, allowing U.S. advocates to gauge U.S. progress on economic, social, and environmental concerns in light of global trends. Likewise, the SDGs may facilitate new cross-border alliances between stakeholder communities around the world as advocates work to monitor and urge progress on SDG implementation internationally.
The SDGs are not likely to result in the flow of international development funds to the United States. Nevertheless, the SDGs may influence the philanthropic community within the United States. By establishing priorities, benchmarks, and data, the SDGs may promote evidenced-based giving, and help to set priorities for grant makers on a host of human rights concerns falling within the scope of the SDGs.
Of course, with opportunities come challenges. The SDGs are no exception; there are many obstacles to ensuring that the SDGs have a positive impact on human rights within the United States. These include the challenge of ensuring that the United States adopts meaningful national-level indicators and a robust process for monitoring its domestic implementation. Other difficulties include a general lack of public education and awareness around the SDGs and human rights more generally.
Nevertheless, global adoption of cross-cutting and interconnected goals that explicitly embrace the full scope of human rights offers significant opportunities for advocacy on domestic human rights concerns. U.S. advocates should embrace the SDGs as a new tool to raise awareness, track progress, and promote the full realization of human rights at home.
Wednesday, September 9, 2015
Human trafficking is a gross violation of human rights. We know that victims and survivors experience physical, psychological, and emotional harm. Yet on August 18, 2015, the U.S. Court of Appeals for the Fourth Circuit overturned a trafficker’s conviction for “possession and use of a firearm in relation to a crime of violence,” when the crime in question was sex trafficking (U.S. vs. German de Jesus Ventura).
The relevant statutory language defines a “crime of violence” as “an offense that is a felony and—(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” 18 U.S.C. § 924(c)(3). The Fourth Circuit concluded that sex trafficking does not meet the requirements of section (A) because it can be committed “nonviolently—i.e., through fraudulent means.” As to section (B), the court stated first that “the relevant inquiry is whether there is a substantial risk that the defendant will use physical force against the victim in completing the crime” (as opposed to any other individual, say a purchaser of sex). And then the court concludes – in a footnote – that “we are not persuaded that the ordinary case of sex trafficking by force, fraud, or coercion involves a substantial risk that the defendant will use physical force as a means to commit the offense.” The Fourth Circuit doesn’t cite to any research in support of this conclusion. In fact, research suggests that the great majority of trafficking victims suffer physical injuries (On health consequences, see, for example, C. Zimmerman et al.; Todres).
This opinion is reminiscent of the Ninth Circuit’s opinion in U.S v. Castaneda (239 F.3d 978 (9th Cir. 2001)). In that case, three Filipina women who were lured to Saipan under false pretenses found themselves in a foreign country with little or no money and the legality of their presence in country tied to their place of employment. The women were forced by their employer to provide sex to men in a night club. Yet the Ninth Circuit questioned whether these women were coerced, noting “there wasn’t a gun put to their head,” and that they weren’t forced to line up for selection by male customers but only “instructed” to do so.
In these and other cases, courts fail to understand the experience of trafficking victims and other survivors of human rights violations. That Ventura will be left with a 30-year sentence, even after his Section 924(c) conviction is vacated isn’t a satisfactory answer. Why are courts failing to see the experience of victims of human rights violations for what it is? There may be a host of reasons, from deficiencies in the evidence presented to implicit bias. Whatever the reason, social science offers a potential answer: it can provide evidence-based research that can demonstrate the likelihood of physical violence by traffickers, or the impact of trauma might have on a victim’s decisions whether or not a gun is put to her head.
Many cases have benefitted from such evidence, dating back to the experiments of Drs. Kenneth and Mamie Clark in Brown v. Board of Education, and even earlier. Human rights advocates, and the populations they represent, would be well served by forging more partnerships with social science to ensure future courts cannot ignore the true experience of those who suffer human rights violations.
Tuesday, September 8, 2015
Countering the “Politics of Forgetting” by Documenting Grassroots Efforts for Accountability for Torture
Reef C. Ivey II Distinguished Professor of Law, University of North Carolina at Chapel Hill School of Law
It is now common knowledge that following the events of September 11, 2001, U.S. officials ordered, facilitated, and actively participated in the extraordinary rendition and torture of hundreds of individuals suspected of involvement with terrorism. Beginning in 2005, documentation from official U.S. and European government sources, the media, and various human rights groups revealed Aero Contractors, a private North Carolina-based contractor headquartered in Johnston County, was operating many of the rendition flights. These flights have come to be known as “Torture Taxis.” Through the work of plane spotters, investigators, government officials, international institutions, U.N. bodies, and journalists, it is now known that Aero Contractors was directly involved in the extraordinary renditions of Binyam Mohamed, Abou Elkassim Britel, Khaled El-Masri, Bisher Al-Rawi and Mohamed Farag Ahmad Bashmilah.
A group of North Carolina residents formed a grassroots organization, NC Stop Torture Now and since the 2005 revelations, they have worked tirelessly to obtain accountability and transparency with regard to the state’s role in extraordinary rendition and torture, now known as the CIA’s Rendition/Detention/Interrogation (RDI) program. Ghosts of Johnston County is a documentary film about this ongoing struggle. Through a combination of home video recordings, observational footage, archival materials, and interviews with local residents, Ghosts of Johnston County unveils an “on the ground” account of the struggle to achieve justice for the victims of U.S. sponsored torture. It ends with a personal and moving dialogue between local advocates and Abou El-Kassim Britel, an Italian citizen of Moroccan descent who, in 2002, was transported by Aero Contractors from Pakistan to Morocco. There, he was held in secret and tortured before being released in 2011. The extraordinary rendition of Britel has yet to be publicly acknowledged by the U.S. Government. The film also includes critical commentary by Col. Morris Davis, a native North Carolinian and the former lead U.S. prosecutor at the Guantanamo Bay Detention Center.
The film can be accessed at https://vimeo.com/104471756 (password gojc_web) and is available for use by human rights activists and educators. If you do view it, the filmmaker, Eric Juth, has a request: He asks:
If you have any questions about the project, or plan on showing the film for educational purposes or in public/group setting, please notify its director, Eric Juth, by contacting him at firstname.lastname@example.org, so that he may document this for his record. Additionally, please consider supporting Juth's work by purchasing a DVD copy of the film for your university's or institution's library, or by making a donation to him through paypal (email@example.com) or on the "Tip Jar" button on Vimeo."
For the past six years, the UNC School of Law Human Rights Policy Seminar has worked with NC Stop Torture and with Abou Elkassim Britel and his spouse, Anna. We have contributed to the documentation of North Carolina’s involvement in the torture program, and produced a number of policy reports, briefs, and petitions focused on North Carolina’s role in the RDI program. We remain inspired by the work of the dedicated citizens who comprise this grassroots group.
As victims of extraordinary rendition continue to surface, and as details emerge about the United States' use of torture during the war on terror, the efforts to achieve justice for the survivors persists, even in places as seemingly removed from the front lines as a rural county in North Carolina.
Monday, September 7, 2015
On Monday, August 31, the California Senate passed the California Fair Pay Act, a law that will take a significant and unprecedented (in the US) step towards workplace equality. While a number of states and municipalities have adopted "comparable worth" as the standard for measuring wage fairness in public sector jobs, California's new law will extend that standard to the private sector as well.
Notably, California's Fair Pay Act has the effect of further implementing, on the subnational level, the provisions of CEDAW, the Women's Rights Convention adopted by San Francisco and endorsed by many other California municipalities. CEDAW specifically accords women"[t]he right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value," a principle reflected in the California Fair Pay Act language.
Unfortunately, the U.S. government continues to register its opposition to this approach. Indeed, one of the U.S. draft reservations intended to restrict CEDAW’s domestic impact if and when it is ratified by the U.S. is to CEDAW's provision on "equal pay for the work of equal value." California's bold move should encourage the federal government to re-evaluate this position and join with its peer nations in ratifying CEDAW.
Friday, September 4, 2015
Boston columnist Joan Vennochi has given us insight into some of the cases that are being dismissed when women bring claims of a hostile work environment. In 2012, a TSA employee in Boston filed suit against Homeland Security. Her boss wielded a baseball bat. The boss routinely engaged a swinging stance, raising the bat when he spoke to the Plaintiff. The same boss changed the female employee's work assignments, citing concerns about the employee's family- friendly work hours. Witnesses testified that the switch was related to the boss' attitude toward women. The judge hearing the case dismissed it finding that while the atmosphere was likely uncomfortable, it did not rise to the level of severe or pervasive discrimination. The judge wrote, that the supervisor did not threaten the employee with the bat. The statement reflects nothing less than a misunderstanding by the court on how threats happen and the psychological damage that threats can have.
In another case reported by Vennochi, a supervisor called the Plaintiff a "whore, stupid bitch and hooker." That case was dismissed because the conduct, according to the court, was "general vulgarity" not speech regulated by law.
Former federal District Judge Nancy Gertner said that plaintiffs alleging a racially hostile environment do not have better results than the women who claim a hostile work environment based on sex.. "Gertner cites Johnson v. Freese, a Georgia case in which the white owners of a nightclub directed the N-word toward their African-American employees. The boss asked someone wearing a shirt with a monkey on it, “Are the Obama shirts in?” Black workers suffered other indignities as well. Yet in granting summary judgment, the judge said that while the white owners were “racist, bigoted and/or offensive people” the judge found that none of the incidents went beyond the “ordinary tribulations of the work place.” If that is the case then we as a nation tolerate a high level of abusive behavior as customary.
When President Obama announced that empathy would be an important quality in a Supreme Court Justice, some found empathy to be inapplicable to the position. Apparently not.
The influence of the human rights principle of maintaining individual dignity has not made its way to employment law cases. We cannot expect human behavior to be perfect. Most of us will have days when our behavior could have been better. But some instances of racist and sexist behavior are so disturbing that a logical conclusion is that the speaker has acted out of a place of deep prejudice. In other cases, a pattern of disrespectful behavior is engaged. Neither a serious incident or a pattern of discriminatory action or speech should be tolerated. If being called a "stupid bitch" is insufficient to trigger a hostile work environment finding, we need to change the standard of proof to match human rights principles.
Thursday, September 3, 2015
Yesterday's post by Jeremiah Ho analyzed the majority and dissenting Obergefell opinions. Today's post discusses why the majority opinion is part of the progression of Human Rights Law in U.S:
LGBTQ advocates need not contort Kennedy’s emotive reasoning in order to align the majority opinion with the “logic-based” styles of the dissenters. Legal bases for Kennedy’s arguments exist in human rights law and language, dignity being a fundamental human rights principle.
The opening to the Preamble to the Universal Declaration of Human Rights underscores that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” Those who disavow using sources other than American statutes and case law in deciding U.S. based issues fail to recognize that the Universal Declaration inherently embraces U.S. principles contained in the Declaration of Independence and supported in the Bill of Rights. The “pursuit of happiness” is intimately tied to the ability to be educated, employed, suitably housed, and fed, while being safe. Equal access to societal institutions and their implied or express benefits are inherent in the American notions of equality and expressed in human rights doctrine. The right to participate in social benefits, with equal participation in resulting burdens that participation brings, is what creates individual and cultural dignity. The American principle of equality cannot be realized without recognizing the fundamental rights embodied in the Universal Declaration. Human rights cannot be separated from human existence. These principles are not aspirational but are, in the quintessential American lexicon, “unalienable.”
In Obergefell,Kennedy embraced human rights concepts through references to and reliance upon notions of “dignity.” That which irrationally deprives individuals’ access to civil society’s institutions based upon the individuals’ “immutable nature” denies dignity: “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
Unspoken, but implicit, in Obergefell’smajority opinion is that one consequence of exclusion from cultural institutions is shame, historically a tool of oppression when those who are victimized by denied access internalize legal and cultural deprivation. Denying individuals’ access to fundamental institutional benefits based upon immutable characteristics creates cultural beliefs that those excluded are unworthy. The deprived individuals carry a belief that somehow they are responsible for the exclusions. Along with other often excluded groups in the U.S., such as women and African Americans, this shame has been documented in the LGBTQ community.
Cultural judgment based upon immutable characteristics is the starter for animus. In Obergefell, Kennedy recognizes animus as the essence of deprivation. The Universal Declaration demands that individuals be free from this sort of harassment: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor or reputation.” The animus-dignity dichotomy originates in human rights concepts embedded in U.S. legislation, such as the Fourteenth Amendment, as well as more universal applications. The resolution of animus restores dignity, leading to acknowledgement of complete personhood so that “[e]veryone has the rights to recognition everywhere as a person before the law.”
Kennedy does not limit his benefits analysis to legal concepts: “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation.” Kennedy cites Loving in recognizing that the choice to marry is something that resides within the individual and cannot be deprived by the state. In embracing the intangible, Kennedy incorporates fundamental human rights concepts as support for his legal conclusions. Likewise, incorporating reference to the limitations and obligations of the state embraces fundamental human rights law.
Justice Kennedy’s decision is based in law, although his critics ignore the importance of dignity as foundational in U.S. jurisprudence. Obergefell will weather time, as human rights language and concepts become more widely recognized in American law.
Wednesday, September 2, 2015
By Jeremiah Ho
There has been much criticism over the emotional rhetoric of Justice Kennedy’s majority decision in Obergefell v. Hodges—especially when comparing it to the seemingly more rigorous language in the dissenting opinions. But the crux of this tension in Obergefell lies at the framing of its inquiry. In granting certiorari, the Court asked the litigants to address their issues within the Fourteenth Amendment. Thus, petitioners latched onto the ongoing successes in marriage equality to argue more consistently for extending the existing fundamental right to marriage to same-sex couples. Contrariwise, respondents insisted that the litigation involved the ongoing creation of a new fundamental right to same-sex marriage that had no consensus amongst the states.
Such differing views are taken up respectively by the Obergefell majority and dissents. Kennedy’s decision resolves the marriage controversy by extending to same-sex couples the already-existing fundamental right to marry under the Fourteenth Amendment. Meanwhile, the dissenters—Roberts, Scalia, Thomas, and Alito—vigorously insisted that petitioners were seeking constitutional creation of a new and specific fundamental right to same-sex marriage.
For the majority, extending the existing fundamental right to marry resulted in an opinion with broad emotive rhetoric that consequently seemed to upstage the doctrinal gestures. If the fundamental right to marriage ought to be available to same-sex couples, Kennedy needed to demonstrate justification. Accordingly, he dramatized justification by creating a narrative of exclusion through use of animus and human dignity concepts that had appeared either separately or together in his previous gay rights Supreme Court opinions. By entwining the two concepts into an anti-stereotyping principle that frames the narrative of marriage exclusion, Kennedy describes how the exclusion was borne from a prejudicial animus that led to indignities against same-sex couples. In fact, the way in which Kennedy phrases the historical reason for exclusion unveils a bias against same-sex relationships because the traditional belief was “it would demean a timeless institution if the concept and lawful status of marriage were extended to two persons of the same sex.” By contrast, from petitioners’ perspective, this rationale was unfounded because they only sought marriage to bolster “the enduring importance of marriage” out of “their respect—and need—for its privileges and responsibilities. And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment.”
In using animus and dignity to further his narrative to support same-sex right to marry, Kennedy also humanizes marriage exclusion through personal accounts from the petitioner’s private lives. The most gripping example involves the one from petitioner Obergefell where Ohio state’s refusal to recognize his out-of-state marriage and his now deceased spouse, Arthur, relegates them to “strangers even in death, a state-imposed separation Obergefell deems ‘hurtful for the rest of time.’ ” The rhetoric is heightened but not doctrinal. The personified injustice provokes collective outrage as it centers on why this animus-filled exclusion violates human dignity, leading the opinion to become much more emotionally resonant. Because the majority is not creating a new fundamental right, but extends an existing one, Kennedy’s rhetoric resonates with decisions in equity, relying on principles—which he does with concepts such as dignity, animus, and autonomy—rather than decisions at law.
By contrast, the Obergefell dissents are seemingly more grounded in law, if only because they see the case as creating a novel right to same-sex marriage. This narrower perspective demanded a more logic-based, erudite rhetoric. Chief Justice Roberts was not subtle when he attacked the majority for creation of this new right, arguing substantively that such a right was not deeply-rooted in our nation’s history and criticizing procedurally Kennedy’s supposed creation of the new fundamental right as an act reminiscent of now-defunct Lochner. By framing the issue similarly, Justice Thomas uses logic to articulate his dissent—except he perceived the alleged creation of the new right to same-sex marriage as anathema to due process jurisprudence, which, he argues, should adjudicate only violations of negative liberty where freedom was deprived by governmental action. Since Thomas frames the issue as an attempt to create a new fundamental right, he argues there could not be any governmental action against it so far and thus no rights were deprived. Justice Alito argues that the majority’s supposed creation of a new fundamental right drives against the democratic process because the legislature and the public should dictate such creation, not a judicial counter-majoritarian act. The logic, history, and politics of the dissenters are rigorously articulated and rely more on doctrine than Kennedy’s principled but humanistic majority decision. But by framing the issue too narrowly at the outset, the dissenters misconstrued it. What logical and doctrinal arguments followed—however intellectual—originated from a false premise. As a result, the dissents do not challenge Kennedy’s opinion in any logical way, they are just legalistic.
Tuesday, September 1, 2015
On August 24, 2015, U.S Ambassador to the United Nations Samantha Power and her Chilean counterpart Ambassador Cristian Barros Melet held the first ever U.N. Security Council meeting on LGBT rights. A primary focus of the meeting was the violence perpetrated against LGBT people in areas controlled by ISIS.
Ms. Power described the meeting as powerful. "Everybody has read about what ISIL and what others are doing to LGBT people around the world, but it’s another thing entirely to hear personal testimonies. While others spoke, including members of the Security Council and other member States, photos also were projected that depicted what ISIL is doing to LGBT persons or those suspected of being LGBT."
Power described the photos of violence toward members of the LGBTQ community as "graphic" and "gut-wrenching."
"The last thing I would say is just that while some of the emphasis was on ISIL, particularly given the testimony of the witnesses, there was widespread recognition among those who spoke that this is not an issue by any means confined to ISIL."
According to CNS news, Power noted that it was only five years ago, at the Obama administration's insistence, that the United Nations Human Rights Council passed a resolution acknowledging LGBT rights as human rights. Since 2011, the HRC has passed a second resolution on LGBT rights; and in June, it released a report on the plight of LGBT people around the world.
The Human Rights Campaign noted:
Monday, August 31, 2015
On August 19, plaintiffs in California filed a federal class action lawsuit against Costco and CP Foods challenging slavery in the supply chain that sends shrimp from Thailand to stores in the U.S. The suit rests on extensive factual investigation by The Guardian newspaper, the UN and NGOs revealing the extent to which slaves contribute to Thai shrimp production. Though it is not part of the present suit, shrimp sold by US giant retailer Walmart has also been linked to illegal production.
The California plaintiffs seek an injunction requiring labeling of foods to indicate that they are a product of slavery, as well as restitution to those consumers who have purchased the shrimp. A copy of the complaint, which makes effective and provocative use of photos as well as more standard legalese, is here. Notably, the claims arise under California law but the case invokes federal diversity jurisdiction.
A federal committee is currently working on principles that would address "seafood fraud," among other things. Draft principles open for comment can be found here. The comment period has been extended to September 11, 2015. As the National Oceanic and Atmospheric Administration reports, "illegal, unregulated and unreported fishing and fraudulent seafood products distort legal markets and unfairly compete with the products of law-abiding fishers and seafood industries." The Costco lawsuit, focused on the role of slavery in shrimp production, makes clear the urgency of federal attention and regulation in this area.
Saturday, August 29, 2015
The Center for Human Rights & Humanitarian Law at American University Washington College of Law announces the deadline for submissions for the Fifth Annual International Humanitarian Law (IHL) Student Writing Competition. The competition is sponsored jointly with the American Society of International Law (ASIL) and the American Red Cross.
The theme of the 2015 Competition is “The Intersection of International Humanitarian Law and Gender.” Papers should focus on ways in which IHL intersects with gender issues, such as the role of women as combatants, the gendered use of sexual violence during times of armed conflict, the impact of gender stereotyping on international humanitarian law, etc.
The Center asks that we share this information with our students. A link to the competition website is provided.
Friday, August 28, 2015
Last week, Secretary of Defense Ash Carter reiterated his and the administration’s commitment to closing the U.S. detention facility at Guantanamo Bay, Cuba, by the end of the president’s second term in office. Carter stressed that he intends to work within the law to transfer those detainees who have already been cleared by relevant agencies. He also said that that the administration will soon send to Congress a plan for the remaining detainees who are not eligible for transfer. Carter indicated the plan will include bringing a number of detainees to the United States for continued detention and that assessment teams are currently visiting potential detention sites across the United States. Both the military and the Bureau of Prisons have safely detained very dangerous criminals, including terrorists and mass murderers, and are well-equipped to continue to do so. Human Rights First has said that any plan to shutter the Guantanamo facility should include: expedited transfers of cleared detainees; an increased pace of Periodic Review Board hearings, which determine whether a detainee still poses a threat to the United States or is cleared for transfer; and stronger engagement with Congress, including vetoing any legislation that prevents Guantanamo from being closed.
Thursday, August 27, 2015
Last week, the Inter-American Commission on Human Rights (IACHR) found that the United States violated Bernardo Aban Tercero's rights to due process and a fair trial that are enshrined in the American Declaration of the Rights and Duties of Man. Tercero, a Nicaraguan national who has been on death row since 2000, is scheduled for execution in Texas on Wednesday. Tercero had deficient capital counsel at trial, sentencing, and at every stage of his post-conviction proceedings. His trial attorneys never conducted a comprehensive investigation into his social history, as required by the American Bar Association (“ABA”) Guidelines on minimum standards of representation in a capital case. There is also no evidence that Tercero himself was ever evaluated for mental illness or intellectual disability which could make him ineligible for the death penalty, despite significant evidence of risk factors. Human Rights First, which filed a petition in the case, is urging Governor Greg Abbott and the Texas Board of Pardons and Paroles to adhere to the IACHR’s recommendations to stay the execution pending review of the trial and sentencing.
Dallas News reports that on August 25th, the Texas Court of Criminal Appeals halted yesterday's scheduled execution. The Appeals Court returned the case to the trial court for review.
Wednesday, August 26, 2015
In my last post, I discussed the phenomenon that I call “the new peonage,” in which criminal justice debt creates a two-tiered system of justice in our juvenile and criminal courtrooms. One of my proposals for reform is to establish the right to counsel in nonpayment hearings. It is long-settled law that the Sixth Amendment requires that counsel be appointed to indigent criminal defendants who face the risk of the loss of liberty. Most states hold that this right, which derives from the Due Process Clause of the Fourteenth Amendment, also applies to civil proceedings. Most states also agree with Supreme Court dicta in Lassiter v. Department of Social Services (1981) that relying on the “civil” or “criminal” label placed on a proceeding when determining whether there is a right to counsel is not particularly helpful in this subset of cases, as the possibility of incarceration is an equally serious restraint on one’s liberty interests whether it results from a civil or criminal matter. State courts are split, however, on how best to determine whether the right exists when applied to a given set of facts, with some courts holding that a balancing test should be used on a case-by-case basis, and others holding that the right to counsel should be presumptively guaranteed in all matters that could potentially result in incarceration. Several states have even held that there is no right to counsel in civil fee collection proceedings regardless of whether the defendant could be incarcerated, invoking the civil/criminal distinction to support their holdings, thereby rejecting Lassiter.
An argument that is gaining traction is that there should presumptively be a right to counsel for indigent litigants in nonpayment hearings whenever those hearings can result in incarceration or an extension of probation or parole. In the recent case of Washington v. Stone (2012), James Stone pleaded guilty in 2001 to unlawful possession of a controlled substance (methamphetamine) and second degree theft, and the trial court sentenced him to 105 days in jail and twelve months of community custody with a fine of $2860. Two years later his supervision was transferred from the Washington Department of Corrections to the superior court clerk’s office, as he now owed (adding the interest) $3179. Two months later, without being told of the right to counsel, he signed an order agreeing to minimum monthly payments of twenty-five dollars, and agreeing that if he failed to pay, an arrest warrant would be issued. For the next twenty-nine months, Stone made the monthly payments, but when he missed a payment and a court appearance, an arrest warrant was issued, and he was sentenced to ten days in jail. This was followed by a period when he once again made payments. This scenario continually repeated itself; yet for three years the court did not inquire as to whether Stone wished to have counsel appointed. After the court finally inquired of him and counsel was appointed, a fact-finding hearing was held one week later, which the appellate court described as follows:
Stone testified that he was homeless; that he was left handed and limited to twenty-five percent use of that hand; that the Department of Social and Health Services (DSHS) paid his medical bills; that his only source of income was monthly net payments of $339 from a…”program…due to [his] disability with [his] shoulder”; and that he spent this money on shelter, cigarettes, and “a few other necessities” like food. He also testified that it cost him approximately $100 to travel to Jefferson County for court appearances.
At the hearing’s conclusion, the judge sentenced Stone to forty-five days in jail, with no inquiry as to his income or ability to pay, and without granting a deduction in his LFO debt for either of his two previous periods of incarceration. On review, the Court of Appeals of Washington held that a person has an absolute right to counsel at “ability-to-pay” hearings where incarceration may result, and that Stone’s due process rights were violated when he was incarcerated without findings regarding his ability to pay:
Stone’s lack of counsel during these proceedings created an “asymmetry of representation” because a prosecuting attorney represented the State in this adversarial proceeding. As the United States Supreme Court has observed, “The average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel.”
The federal appellate court clearly recognized that if counsel had represented James Stone at the first enforcement proceeding, it would have made the difference between his maintaining and losing his liberty down the road. Counsel is needed to gather and present evidence regarding the defendant’s ability to pay, to assist her in navigating the often-complex procedures for requesting a reduction or waiver of fees, and to ensure that she understands the ramifications of payment orders or commitments. For these reasons, it is likely that early appointment of counsel will ultimately save the jurisdiction monies spent in repeated attempts at collection, issuing and serving arrest warrants, and the costs of incarceration.
Of course it is critical to keep in mind that when counsel is appointed, at least forty-three states and the District of Columbia can require defendants to contribute to its cost. This fee is often a significant component of the total debt burden imposed by LFOs, and given the disproportionate representation of low-income defendants and civil litigants struggling under the new peonage, it rests squarely on the backs of those least able to afford it. In Florida and Ohio, individuals must pay defender fees even if they are acquitted or the charges are dismissed. In states that offer hardship waivers of these fees by statute, some fail to provide them in practice. And, defender fees often serve to discourage low-income people, including children in juvenile court, from exercising their constitutional right to counsel, resulting in systematic waivers of counsel.
Yet, if the right to counsel at nonpayment hearings is implemented in combination with several other legislative proposals, such as the exemption of attorney fees for indigence, these costs should cease to be a significant hardship for low-income defendants.
Editor's note: Tamar Birckhead’s research on “The New Peonage” will be published by the Washington & Lee Law Review in December 2015.
Tuesday, August 25, 2015
In two earlier posts, we reported on the Texas case where plaintiffs sought the release of children and their mothers from immigrant detention centers. After issuing her initial order, Judge Gee gave the Obama Administration an opportunity to respond as to whether it would comply with the terms of the Flores settlement and release mothers and their young children. The Administration responded that it planned no change in its current policy.
On Friday, Judge Gee entered her order. She ordered the release of immigrant children held at the detention centers. More than 1800 mothers and children are held in three detention centers in both Texas and Pennsylvania. The Los Angeles-based Center for Human Rights and Constitutional Law said that thousands of innocent children have suffered severe psychological and sometimes physical harm during their over year-long detention.
The government has until October 23rd to comply with the order.
One basis for the Plaintiffs' claims was that the detention centers are run by private corporations, not the government, as called for in the Flores settlement. While it is noted that the Texas centers have gyms, schools and other amenities, a prior post reported that the centers are often very cold and the women and children are provided only one aluminum blanket each, which is inadequate to keep them warm.
The administration has not yet announced if it will appeal Judge Gee's decision.
Monday, August 24, 2015
Good News: The National Center for Transgender Equality celebrates the appointment of Raffi Freedman-Gurspan who was appointed by President Obama as the first openly transgender staffer. Freedman-Gurspan is appointed as an Outreach and Recruitment Director for Presidential Personnel. Freedman-Gurspan advocated for the Center's Racial and Economic Justice Initiative.
Mixed News: Also last week, A U.S. Navy admiral says that SEAL teams will be opened to women and last Friday, two soldiers became the first women to graduate from the Army's Ranger School located at Fort Benning Georgia. 1st Lt. Shaye Haver and Capt. Kristen Griest are both West Point graduates. This is the first year that women were permitted to attend Ranger School.
In a gratuitous statement reassuring us that the females soldiers are expected to become an alternate form of male soldiers, the Army spokesman said that in accommodating the female rangers, the Army did not change its standards at all. Whew!
These changes follow the 2013, Pentagon announcement that it is considering lifting its ban on women serving in combat roles and gave the military until the end of 2015 to take a position on whether any jobs should continue to be off-limits to women.
Friday, August 21, 2015
During the 2015-2016 school year, Martha F. Davis will serve as the Distinguished Chair in Human Rights and Humanitarian Law at the Raoul Wallenberg Institute, Lund University, on sabbatical from Northeastern University School of Law. During her stint in Sweden, she will be developing a comparative study of local human rights implementation, contrasting the U.S. as a federal system with Sweden as a highly developed unitary system. As part of the study, she will utilizing a mapping tool developed by the NuLawLab at Northeastern Law School to illuminate the specifics of local human rights experiences in southern Sweden. Beyond points on a flat screen, the mapping tool supports photos, videos and other media to fill out the story of how local human rights initiatives develop and move forward.
This work builds on another recent project, a forthcoming book co-edited with Barbara Oomen and Michele Grigolo, titled Global Urban Justice: The Rise of Human Rights Cities (Cambridge Univ. Press). With several contributors from the US (JoAnn Kamuf Ward, Risa Kaufman, Cynthia Soohoo, Kenneth Neubeck) as well as other studies from around the world (Mexico, Austria, the Netherlands, Canada, Ghana), the book highlights the ways in which cities are increasingly responsive to human rights frames. Publication will be in 2016.
We wish you a wonderful academic year, Martha. Do come back!
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.]