Tuesday, August 4, 2015
For most U.S. children, summer is a time of fun, a break from school. While play is important for physical, cognitive, and emotional development, summer does have its downside: summer learning loss. Research consistently finds that during the course of the summer, students of all ages forget some of what they learned and regress. Evidence suggests that summer learning loss equates to at least one month of instruction assessed by grade level equivalents. Student knowledge declines more in mathematics than reading, perhaps attributable in part to the greater emphasis on summer reading lists in some areas. Equally important, the summer learning loss exacerbates the achievement gap: “The meta-analysis revealed that all students, regardless of the resources in their home, lost roughly equal amounts of math skills over summer. However, substantial economic differences were found for reading. On some measures, middle-class children showed gains in reading achievement over summer, but disadvantaged children showed losses. Reading comprehension scores of both income groups declined, but the scores of disadvantaged students declined more.” (see Harris Cooper).
This is not a call for year-round schooling. Rather the summer learning loss and achievement gap are important reminders of the many challenges we face in the human rights arena. Making human rights meaningful requires attention to subtle factors that have significant effects. Children have the right to education, which includes a mandate on the state to make primary education “compulsory and available free to all” and secondary education “available and accessible to every child” (CRC, article 28). In developing countries, waiving school fees makes education accessible for a huge number of children, yet more hidden costs – books, uniforms, transportation, etc. – can leave the most marginalized children still without consistent access to education. Similarly, here in the U.S., free public education might provide access during the academic year, but that education is made less meaningful if disadvantaged children are falling further behind their peers each summer. From a human rights perspective, this means that technical compliance with human rights treaty language might not capture all that is essential to children seeking to realize their education rights or other rights.
The nondiscrimination clause of human rights treaties is particularly relevant in this context. It imposes an obligation on states to ensure that all children have equal access to education and other opportunities. As human rights researchers and advocates, our job is to uncover the multitude of barriers—big and small—to the full realization of rights, especially for vulnerable populations, and to ensure that government responses to human rights treaty obligations go beyond technical compliance to secure the full rights of every individual.
Monday, August 3, 2015
Risa Kaufman, Columbia Law School Human Rights Institute, &
David Udell, National Center for Access to Justice at Cardozo Law School
Access to justice is now, quite literally, on the global agenda. The post-2015 Sustainable Development Goals (“SDGs”), which establish a new universal anti-poverty agenda, are scheduled for a vote before the United Nations General Assembly on September 25, 26 and 27th and expected to go into effect on January 1, 2016. With Goal 16 specifically focused on “access to justice”, the U.S. access to justice community should take note.
In the run up to the vote on the SDGs, the United Nations released in June its final report on the Millennium Development Goals. Since 2001, the MDGs have guided international initiatives to end poverty in the developing world. The final report credits the MDGs with significant beneficial impacts, including helping to halve the number of people living in extreme poverty and increasing the number of girls receiving a primary education. The report also acknowledges that the MDGs have fallen short in important respects, including by failing to address and reduce inequalities in and between countries.
With the post-2015 Sustainable Development Goals, the UN is seeking to build on lessons learned from the MDGs. Thus, the SDGs will intentionally incorporate human rights principles, apply universally to all countries, tackle the problem of inequality in and between countries, and cover a broader range of concerns. The current UN draft of the SDGs sets forth 17 Goals and 169 Targets. In addition to access to justice in Goal 16, the SDGs address gender inequality, climate change, education, hunger, health, water and sanitation, sustainable energy, economic growth, urban development, employment, housing, and more. The significance of the SDGs’ grounding in human rights is discussed in blog posts here and here.
In setting forth its unprecedented call for access to justice, Goal 16 states that countries should “[p]romote peaceful and inclusive societies for sustainable development, provide access to justice for all, and build effective, accountable and inclusive institutions at all levels.” The goal is broadly drafted to extend to both civil and criminal justice systems, and to include good governance, legal identity, and the rule of law. Target 16.3 states that countries should “[p]romote the rule of law at the national and international levels and ensure equal access to justice for all.”
Just what is the basis for the UN including access to justice in global anti-poverty goals? The international community has come to the view that access to justice is essential to ending poverty, with the UN Secretary General explaining that justice is so essential that it must be viewed as one of the six themes driving all the SDGs. Access to justice helps people stabilize their lives and communities by assisting them to retain their homes, inherit property, secure safety from domestic violence, establish legal identity and citizenship, obtain health care and qualify for government benefits. Inclusion of access to justice in the SDGs is also consistent with their grounding in human rights.
The process for implementing the SDGs is still in flux. The UN’s Statistical Commission has established an Interagency Expert Group on Sustainable Development Goal Indicators to create global level “indicators” to promote gathering of data. This will allow comparisons of progress by countries in implementing the SDGs and meeting the targets. Countries will also be responsible for creating their own national-level indicators for meeting the goals and targets, based on their own unique features and contexts.
For all of us working to promote human rights and access to justice in the United States, whether in the NGO community, government, or philanthropy, Goal 16 would appear to offer new opportunities for increasing access to justice as a strategic response to poverty. We have developed a list of such opportunities, available in full here.
For NGOs, these opportunities include educating stakeholders (including academics, advocates, reporters, government officials, and others) about barriers to accessing justice; educating funders about the need to support research and policy reform initiatives to improve access to justice; and strengthening data gathering, indicators, and indexing systems (like the Justice Index, www.justiceindex.org) that can help to increase access to justice. Goal 16 will offer opportunities for NGOs to strengthen reporting on access to justice, including through the human rights treaty reviews and in the Universal Periodic Review. Goal 16 can be used to promote a broad vision of civil legal aid in providing access to justice for all (“100% access”), create new alliances between reformers around the world, and increase cross-global learning about effective reform initiatives. Finally, Goal 16 can help to reinforce advocates’ efforts to accomplish important criminal justice system reforms.
For government officials, Goal 16 can be a source of support for initiatives such as DOJ’s Office for Access to Justice and the Legal Aid Interagency Roundtable (LAIR) in identifying ways in which support for civil legal aid can help to accomplish the anti-poverty goals of federal agencies. Goal 16 also offers support for research on access to justice, including projects sponsored by the National Science Foundation and by other federal agencies and institutes. And Goal 16 underlines the importance of legislative and appropriations initiatives that would increase access to justice by providing funding for courts, court reform initiatives, and civil and criminal legal aid.
Last, Goal 16 offers opportunities for the philanthropic sector to adopt a framework for grantmaking that reduces poverty by increasing access to justice, including in the specific contexts of family security, health care, housing, legal identity, racial justice, LGBT rights, and many other areas of importance and concern to foundations.
Even before the SDGs are formally adopted, Goal 16 is spurring conversations and activities that are promoting access to justice in countries around the world. The promise it holds for increasing access to justice in the United States ought to inspire dialogue and action here, as well.
Editors' Note: This entry is cross-posted with the blog of the National Center for Access to Justice, http://ncforaj.org/.
Sunday, August 2, 2015
On Friday, U.S. District Court Judge Dolly Gee announced her ruling that hundreds of women and children held in what she described a "deplorable" immigrant detention centers be released. Judge Gee has given the Obama Administration until tomorrow to respond to her plan, which would be implemented within 90 days absent further order.
Ruling under the Flores settlement which Plaintiffs sought to enforce, the judge found that the government violated the settlement agreement by failing to release women and children from detention. Female headed households are to be released under the terms of the 1995 settlement. In addition, the children are being held in secure facilities, again in violation of the settlement agreement.
The government does not dispute that children are being held in secure facilities. Judge Dee referenced evidence presented by the Plaintiffs showing the extended detrimental psychological, developmental and physical harm that children suffer from confinement in a secure facility.
Detainees supported allegations of substandard conditions. Many submitted affidavits describing the freezing cold conditions of confinement where they were given nothing but an aluminum foil blanket that was inadequate to protect from the cold. Others reported mothers and their children being held from one to three days in a small holding areas with up to 100 unrelated individuals in the room. The crowded conditions forced many, including children, to "sleep standing up or not at all".
The description of other conditions, such as hygiene, are equally disturbing. And so are the reported human interactions. When individuals being detained asked for food and drink they were told that "it wasn't their country, it wasn't their house."
Under what circumstances would the U.S. government ever believe that any of this treatment is acceptable? We might find out tomorrow.
Friday, July 31, 2015
The critical need for affordable, fresh drinking water has been the subject of several posts on this blog. Now the US Human Rights Network announced that on July 28th it, along with twenty other organizations and individuals, requested a hearing with the Inter-American Commission on Human Rights on the right to safe drinking water and sanitation in the U.S.
Among concerns, the letter requesting a hearing addressing water shutoffs in Detroit, Baltimore and Boston. The letter addresses concerns around contamination and lack of sanitation in rural areas as well, namely the San Joaquin and Salinas Valleys of California along with the Black Belt of Alabama. The disparate impact on African Americans and Indigenous peoples is documented for the Commission.
Rebecca Landy of the USHRN is the point of contact for the Commission. We look forward to her periodic updates on this important development.
Watch for more information on Northeastern Law's conference "Tapping into the Human Right for Water", being held on November 5 and 6.
Thursday, July 30, 2015
by Jeremiah Ho
Editor's Note: Professor Ho completes his three part series with this discussion of post Obergefell Advancement
As an anti-stereotyping principle, the concepts of animus and dignity interwoven by Kennedy in Obergefell serves to contain the narrative of discrimination and marginalization based on sexual orientation. Harnessed together by Kennedy for his fourth gay rights opinion at the Supreme Court, the animus-dignity connection in Obergefell arrives at the marriage equality ruling; but more importantly by tying the significance of the marriage right to human dignity, Kennedy is able to make salient that the right to marriage should be legally available to same-sex couples because otherwise it hinders the upholding of important constitutional ideals. Specifically in Obergefell Kennedy’s continuous use and reliance on the animus-dignity connection reveals an emphasis on the autonomy of sexual minorities. One of the reasons exposed by the indignities from state marriage bans that concerned Kennedy was the abridging of private choices that reflect the personal autonomy available for self-determinism. Ensuring that the fundamental right to marry was available to same-sex couples helped correct that curtailment. As Kennedy notes in Obergefell, “the Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights.”
Since Lawrence v. Texas, personal autonomy has been a common theme in gay rights cases. In fact, in Obergefell v. Wymyslo, one of the lower federal district cases eventually consolidated into the appealat the Supreme Court, an emphasis on the personal autonomy in choices reflecting sexual identity was one reason why the Wymyslo court found sexual orientation appropriate for heightened scrutiny. In its discussion of the immutability of sexual orientation, Wymyslo exhibited a preference for protecting personal autonomy when it adopted a standard for immutability that allowed it to find that sexual orientation was an immutable trait because it was “so fundamental to a person's identity that one ought not be forced to choose between one's sexual orientation and one's rights as an individual—even if such a choice could be made.” In other words, one has the autonomy to make choices that reflect sexual identity. Obergefell’s two passing mentions of the immutability of sexual orientation seem to concur.
Going forth, one of the ultimate leveraging advancements from post-Windsor cases to Obergefell should be the increased recognition between personal autonomy and sexual identity. Autonomy after all resides significantly in modern theories of democratic rights because individualism and self-invention has figured into the concept of humanity. Relating all of this back to sexual orientation antidiscrimination, autonomy helps leverage advances within equality because inequality here is still concerned with the distribution of rights—even if the right involves something as intangible as self-determinism but is externalized by personal choice. In that sense, the recent advances for autonomy in sexual orientation discrimination ought to be expanded for sexual identity in the LGBTQ movement’s next increment of advancement.
For instance, placing sexual orientation firmly within a protected trait in Title VII could be the next step that constructively leverages developments from the marriage cases to antidiscrimination. Although Title VII does not expressly protect sexual orientation, there is already some slippage within what “because of sex” means in claims that allows claimants to assert claims that could factually involve sexual orientation discrimination but also qualify as gender-stereotyping. The complex interplay in the characteristics of sex and gender have gradually carved out a line of cases, including Supreme Court precedent in Price Waterhouse v. Hopkins that have adjudicated Title VII cases in situations where gender-stereotyping was at play under the Act’s definition of discrimination “because of sex.” Couching this idea in Judith Butler terms, the performative or expressive aspects of gender have broader—and perhaps fuzzier—borders than biological sex-determinancy or inferences. Although other gender-stereotyping cases have articulated that the gender-stereotyping theory could not be utilized to “bootstrap protection for sexual orientation into Title VII,” sexual minorities have been able to lodge discrimination claims in situations where they were marginalized harmfully when the expressive aspects of their personal identity based on their sexual orientation belied conventional expectations about their biological sex; such results have varied.
This notion of marginalization or discrimination of individual gender expression based on dominant expectations of sex—harnassing aspects of essentialism to bolster one idea of what it means “to be a man or a woman” in order to eclipse other ideas—places tolls on personal autonomy. In this way, there might be some viable overlap existing between these Title VII gender-stereotyping cases and marriage equality cases that may be helpful to future advances in sexual orientation antidiscrimination post-Obergefell.
Wednesday, July 29, 2015
by Jeremiah Ho
Editors' note: This is the second in a series of three posts by Prof. Ho looking forward to what comes next post-Obergefell.
When marriage litigation boomeranged back to the Supreme Court in Obergefell this year, Kennedy extended the animus-dignity connection in an opinion that encompassed the same-sex marriage issue under both fundamental rights and equal protection. Kennedy was able to humanize discrimination against same-sex couples by framing the facts between historical animus toward sexual minorities that excluded them from marriage and the genuine indignities such animus has caused. Kennedy began his opinion by reiterating the intellectualized stance taken by same-sex marriage opponents that "it would demean a timeless institution if the concept and lawful status of marriage were extended to two persons of the same sex." Implicit in Kennedy's depiction is the rhetorical question, why would such inclusion "demean" the institution of marriage but for the moral disapproval or animus of same-sex couples? He then transitioned to the depictions of that exclusion, notably mentioning the plights of the petitioners in undignified positions because of marriage bans in their home states. Particularly heart-breaking was the account of Petitioner Obergefell who had to marry his ailing spouse inside a medical transport plane on a Baltimore tarmac far away from their home state of Ohio only to have Ohio later strip them of the benefits of marital status. The animus-dignity connection also appeared in Kennedy historicism on the modern gay rights movement, when he discussed how "same-sex intimacy long had been condemned as immoral by the state itself in most Western nations" and that was why "many persons did not deem homosexuals to have dignity in their own distinct identity." In a similar passage, he noted a time when "the argument that gays and lesbians had a just claim to dignity was in conflict with both law and widespread social conventions." These narrative uses of animus and dignity exemplify the connection as an anti-stereotyping principle that channels toward an emotional rather than an intellectualized core. It is also the first time in these cases that animus and dignity have been used on this visceral level.
In articulating why the fundamental right to marriage applied also to same-sex couples, Kennedy relied primarily on dignity rights reminiscent of how he reached his result in Lawrence and Windsor. Withholding the exercise of marriage rights from same-sex couples restricted personal choice and self-determinism, perpetuated a second-class citizenship, demeaned the families created by same-sex unions and precluded benefits of marriage accorded opposite-sex couples. And once the fundamental rights issue for the ability of same-sex couples to exercise the right to marriage was set, Kennedy did not need to venture into a protected class analysis in his equal protection rationale. Of course, pro-LGBTQ rights advocates had hoped thatObergefell 's equal protection analysis would have been more robust in regards to sexual orientation as a protected class. But even here, the result was favorable for same-sex couples and Kennedy accomplished this in part by relying again on connecting animus and dignity when he wrote that "[e]specially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them."
Where do we go from here? The animus-dignity propagated in these gay rights cases has established a correlative effect between the two concepts that elevates the connection into an anti-stereotyping principle or channeling device. The connection shows us what is wrong with the way the law has been used to marginalize a sub-group in society based on disapproval for a characteristic that members of this sub-group possess. The connection then highlights how that marginalization pervasively hinders members of the sub-group's ability to lead their lives according to our collective beliefs of self-determinism, freedom and individuality. That correlative effect offers potential furthering advances in sexual orientation antidiscrimination, the next realm for gay rights advocacy.
Post-Obergefell, antidiscrimination advocates should seek more instances for exposing how some long-standing societal prejudices toward sexual minorities are based on animus and how that animus leads to marginalization that deprives human dignity. Through those instances, the experiences of sexual minorities will be revisited within the context of important big-word concepts in American democracy—ideas such as autonomy, liberty, equality and justice—that we all fundamentally value, but perhaps in different ways. In particular, sexual orientation could be regarded highly as a characteristic, protectable like race or gender, viewed as being so basic to peoples' identities that the law ought not to curtail or force them to change. In order to get there, advocates will need to rely on concepts of animus to demonstrate how notions that being gay was either a choice that is morally blameworthy or a biological pathology are prejudicial and have been the impetus for policies and laws that marginalize sexual minorities. Advocates will also need to employ dignity concepts in showing how marginalization harms personal and human dignities by interfering with freedom of sexual minorities to live based on their constitutive sexual identities. Aside from being historically important judgments, the animus-dignity connection is the legacy that Kennedy's Romer to Obergefell gay rights cases leaves us for the next step.
This post originally appeared on Jurist.com
Tuesday, July 28, 2015
By Jeremiah Ho
Editors' note: This post is part one of three posts. Today's post explores the history of Justice Kennedy's use of the language of animus and dignity, setting the stage for tomorrow's post on next steps.
Last month the US Supreme Court ruled on marriage equality in Obergefell v. Hodges and ushered in the decision that the fundamental right to marriage applies not only to opposite-sex couples but equally to same-sex couples as well. With that, state exclusions of this unenumerated and constitutionally-basic right from same-sex couples were viewed as intolerable under the US Constitution. This perspective was not so readily evident in the national imagination even in the recent past, let alone more than four decades ago when the court itself had summarily dismissed its first same-sex marriage case, Baker v. Nelson, "for want of a substantial federal question." Nearly 43 years later, Obergefell has now revealed that there definitely is a federal question within the context of same-sex marriage. The court's answer to that federal question last month showed just how substantial that question was.
So how did we get here? Writing for the Obergefell majority, Justice Kennedy reasoned through the issue within a specific context of discrimination that he—as the author of now four canonical gay rights decisions in recent Supreme Court memory—began building in Romer v. Evans and has developed throughout the rest of the quartet: Lawrence v. Texas, US v. Windsor and Obergefell. Throughout these opinions, Kennedy has relied on concepts of animus and dignity to create a narrative—both emotional and doctrinal—of the experience of marginalization endured by sexual minorities under the law. Gradually, the connection between animus and dignity in these cases has crystallized into an anti-stereotyping principle, proven crucial for mediating from one gay rights case to another and for overturning discrimination in each instance at the court.
Although Obergefell did not rule on the issue of whether sexual minorities deserved higher tiered scrutiny protection than rational basis, Kennedy's reliance on animus and dignity in Obergefell sets up importantly the next step in gay rights activism: antidiscrimination.
By tracking Kennedy's quartet of gay rights cases, we see that the concepts of animus and dignity were first introduced separately in earlier cases and then married together in the later ones. Kennedy introduced the concept of animus within the context of sexual orientation discrimination in Romer in 1996, importing its use from other equal protection cases such as Department of Agriculture v. Moreno. Rather than exploring whether sexual orientation warranted suspect or quasi-suspect classification to overrule Colorado's Amendment 2, a voter-approved referendum that banned any specified legal protections for gays and lesbians from discrimination, Kennedy drew upon a significant finding of animus to rule that Amendment 2 was unconstitutional under rational basis. In a political society, we cannot reasonably sustain laws created with hatred or animus against a particular group and Amendment 2 "seem[ed] inexplicable by anything but animus toward the class it affects."
Then with Lawrence in 2003, Kennedy introduced the idea that discrimination against sexual orientation could amount to a deprivation of dignity when he wrote to overturn Bowers v. Hardwick, a Supreme Court decision that had permitted states to criminalize consensual same-sex intimacy. Kennedy articulated the idea that state sodomy laws that criminalized consensual same-sex intimacy interfered with the autonomy and privacy of consensual adults engaging in same-sex sexual behavior and singled them out to be criminals if caught. This criminalizing effect left such adults without dignity for engaging in intimate behavior possibly indicative of their sexual orientation. By likening Lawrence to other privacy cases such as Planned Parenthood v. Casey, Kennedy extrapolated the dignitary harms concerns from the context of privacy and contraceptives in Caseyand embedded them here in the realm of same-sex intimacy and demonstrated that for same-sex couples, the criminalization of intimacy that could be indicative of their sexual orientation deprived them of the privacy, freedoms and dignity that were afforded couples engaging in sex acts indicative of heterosexuality. From Lawrence, the freedom to engage in consensual sex was deemed part of "the right to define one's own concept of existence, of meaning, and of the universe, and of the mystery of human life." Criminalization of such acts amounted to indignity.
While Romer was solely an animus case and Lawrence championed dignity rights, Windsor was Kennedy's first gay rights opinion to explicitly combine the two concepts. While discussing DOMA's [PDF] discriminatory effect against sexual minorities in Windsor, Kennedy found that DOMA was a law steeped in animus that effectively marginalized married same-sex couples on the federal level. His examination of DOMA's legislative intent captured a finding that DOMA was borne of legislative animus—a moral disapproval reinforced by antigay essentialist notions about same-sex relationships—and animus that had an intolerable purpose of imposing inequality. Fueled by animus, DOMA then existed to discriminate against married same-sex couples, not only by excluding federal benefits available to married opposite-sex couples, but by also symbolically relegating them to second-class labeling. Kennedy distinctively characterized such relegation as stigmatizing and demeaning to same-sex relationships and to the families created by those relationships. In Windsor, he doctrinally and centrally wove both animus and dignity into his calculation of DOMA's unconstitutionality under equal protection, fully galvanizing the connection as the reason to overturn such discrimination in the law.
Post-Windsor, lower courts imported and elaborated upon Kennedy's animus-dignity connection into their own resolutions over state marriage bans and mini-DOMAs. Such courts utilized the broadness of Kennedy's language in Windsor to explore the animus-dignity connection in marriage and sexual orientation discrimination even further. The post-Windsor moment was an interesting one for observing how subsequent courts have used some of the open-endedness of the animus-dignity connection in Windsor to reinterpret doctrinally how denying same-sex couples the right to marry constituted discrimination. Essentially, these courts in post-Windsor marriage cases picked up where Justice Kennedy left off.
Editors' note: This post originally appeared in Jurist.com
Monday, July 27, 2015
On November 24, 2004, a thirteen-year-old boy named Taylor M. and several other boys in Ventura County, California, threw rocks at construction equipment owned by to J&S Excavating [J&S]. After another boy threw a firecracker into a bulldozer, Taylor shut its door, and the bulldozer ignited. Damages were estimated at over $170,000, including repair costs, rental expenses, and lost labor, although the estimate failed to account for the amount that J&S ultimately recovered from its insurance company. The state charged Taylor with arson and felony vandalism in juvenile court, he admitted the allegations, and the judge declared a maximum confinement period of three years, eight months.
At the time of the offense, Taylor was struggling both academically and behaviorally in the sixth grade. He was failing several courses and repeatedly disciplined for misbehavior. He was diagnosed with a learning disability and Attention Deficit Hyperactivity Disorder, and his peers ridiculed him for attending special education classes.
On April 25, 2006, upon the prosecutor’s recommendation, the court placed Taylor in a deferred entry of judgment (DEJ) program with multiple conditions, including monthly restitution payments of $100. Soon after, Taylor’s parents, who were already struggling to pay their bills, experienced a series of health setbacks. His mother was diagnosed with cancer and then suffered two strokes, and his father became disabled. His parents separated, and his father became homeless, as did his older brother. Because of his mother’s illnesses, Taylor had to assist her with basic tasks of cooking and cleaning, while at the same time he made numerous attempts—all ultimately unsuccessful—to find work to pay his restitution.
Despite these hurdles, Taylor made some strides. His grades improved as did his school attendance and behavior, and he managed to complete all eighty hours of court-ordered community service as well as a counseling program. Ultimately, however, Taylor’s family was able to pay a total of only $175 toward restitution between 2006 and 2009, at which time Ventura County Probation Officer Monica Gomez recommended revocation of his DEJ placement because “no effort [was] being made…at all.”
The juvenile court judge agreed with the probation officer’s recommendation and revoked Taylor’s DEJ placement, putting him on formal probation that left him vulnerable to the three years, eight months, term of incarceration. In 2010, the Court of Appeal of California affirmed the judge’s decision, stating that the probation department would not have recommended the revocation of his DEJ placement “if he had met with his probation officer on a regular basis and made small payments ($10, $5, or $1). Appellant failed to establish that he tried to do those things.”
Across the U.S., even minor criminal charges, such as loitering, littering, and unpaid traffic tickets, trigger an array of fees, court costs, and assessments in both juvenile and criminal courts that can create insurmountable debt burdens for already-struggling families. Although the U.S. Supreme Court held in Williams v. Illinois (1970) that extending a prison term for an inability to pay criminal justice debt violates the Fourteenth Amendment’s Equal Protection Clause, and in Bearden v Georgia (1983) barred the revocation of probation for failure to pay a fine without first inquiring into a person’s ability to pay, jurisdictions continue to ignore these requirements and consider almost every failure to be “willful.” Some courts impose a “fines or time” alternative sentence that forces defendants to “choose” between jail and immediate payment in full.
For low-income families, criminal justice debt can lead to driver’s license suspension, bank account or wage garnishment, extended supervision until debts are paid, additional court appearances or warrants related to debt collection and nonpayment, and extra fines and interest for late payment. When parents face such collateral consequences, the very act of meeting the economic and emotional needs of one’s children becomes a formidable challenge. Failure to do so can trigger the intervention of Child Protective Services, potential neglect allegations, and further court hearings and fees. For non-custodial parents, failure to pay child support can also lead to time in jail, and the debt often continues to accrue during incarceration, making it nearly impossible to become current.
For youth in the juvenile court system, mandatory attorney fees, detention fees, restitution fines, and supervision fees impose a burden that increases the risk of recidivism. When these circumstances are exacerbated by aggravating factors such as unemployment, substance abuse, or mental illness, families without an extensive support network have little chance of succeeding. In short, for parents and their children who are caught within the state’s debt-enforcement regime, the threat of punishment is an ever-present specter, and incarceration is never a thing of the past.
One of the inherent ironies is that rather than serving as a valuable revenue source for the state, juvenile and criminal justice system fees require an extensive infrastructure to turn court and correctional officials into collection agents. This burdens the system and actually interferes with the proper administration of justice. Moreover, states frequently divert court fees and assessments to projects that have little connection to the judicial system.
Although the Thirteenth Amendment to the U.S. Constitution formally abolished slavery and involuntary servitude in 1865, the text created an exception for the punishment for crimes “whereof the party shall have been duly convicted.” It also explicitly provided for enactment of supplemental legislation to enforce the amendment’s substantive provisions. Two years later, Congress passed The Peonage Act in an attempt to prohibit the practice of coerced labor for debt, but in the wake of the Civil War, southern states innovated other ways to impose peonage but avoid violations of the federal statute. Among these were criminal surety statutes that allowed employers to pay the court fines for indigent misdemeanants charged with readily manufactured crimes, such as vagrancy, adultery, or use of offensive language, in exchange for a commitment to work. Surplus from these payments padded public coffers (as well as the pockets of court officials), and when workers’ debt records were subsequently “lost” or there was an allegation of breach, surety contracts were extended and workers became further indebted to local planters and merchants. Several decades later, the U.S. Supreme Court inBailey v. Alabama (1911) and U.S. v. Reynolds (1914) finally invalidated laws criminalizing simple contractual breaches, which Southern states had used to skirt the general provisions of the Peonage Act, but these decisions ultimately had little impact on the “ever-turning wheel of servitude,” and the practice persisted under alternative forms until after World War II.
In several instructive ways, the contemporary justice tax faced by Taylor M. and thousands like him ultimately has the same societal impact as the practice of peonage: both function to maintain an economic caste system. There are, however, a number of common sense legislative reforms for what I’ve called “the new peonage” that lawmakers should consider. They include creating and enforcing court fee exemptions for indigence; eliminating unnecessary interest, late fees, and collateral consequences for defendants; and ending incarceration and extended probationary supervision for non-willful failure to pay. For youth like Taylor M. and their families, our states must pass legislation that eases the burden on low-income families and ends the phenomenon of the new peonage.
Friday, July 24, 2015
Thursday, July 23, 2015
The lofty goal of human rights advocates is to re-orient how government operates. To place freedom from discrimination and an adequate standard of living at the center of decision-making, and to prioritize the needs of the most marginalized communities. This paradigm shift requires changing prevalent attitudes about the role of government and, critically, changing the conversation among government actors.
Often this seems like an unwinnable battle. You need look no farther than the coverage of the Affordable Care Act to understand that Americans are deeply polarized about the government’s obligations to meet basic needs and provide essential services, like healthcare. This polarization is certainly disheartening, but it should by no means discourage human rights advocacy and organizing.
Why not? Because everyday, in new and perhaps unexpected ways, human rights are permeating the dominant narrative. Human rights are implicit in Supreme Court decisions and presidential speeches rife with references to the foundational principles of dignity and equality. Under the Obama Administration, explicit references to human rights at the federal level are increasing too. President Obama has affirmed the “basic human right to be free from violence and abuse” and HUD has recognized housing as a human right. At the local level, there is a burgeoning national Cities for CEDAW movement, with mayoral support in a number of cities, including Los Angeles.
Philadelphia now joins the ranks of cities where policymakers are looking to human rights when formulating policy. In June, a member of the Philadelphia City Council affirmed that human rights, and the right to water specifically, are a concern for local government. This recognition came with an announcement that the City Council approved legislation to improve affordable water access for members of Philadelphia’s low-income communities. In her announcement, Councilwoman Quinones-Sanchez quoted UN Special Rapporteurs, stating “‘[i]t is contrary to human rights to disconnect water from people who simply do not have the means to pay their bills.’” (The U.N. Special Rapporteurs focused on housing and water and sanitation made this pronouncement as a result of their joint 2014 visit to Detroit, where mass water shut offs have caused severe harm to families who cannot afford to pay their bills, as reported previously on this blog).
According to Quinones-Sanchez, the Bill would require income-based payment plans, and strengthen protections for individuals who have been unable to pay their water bills due to financial hardship, as well as providing forgiveness for overdue bills once customers enroll in the newly created assistance program. These protections aim to prevent foreclosures based on a failure to pay their water bills. In her announcement the Councilwoman noted that by passing this legislation, “Philadelphia will join the forefront in best practices related to water access.”
A race to the top in the arena of water access would have positive implications for communities around the country. And, Philadelphia can serve as an example that generates conversations elsewhere.
Changes in narrative alone will not achieve the promise of human rights. But, when that change is tethered to new approaches to policy that fulfill the right to an adequate standard of living and prioritize vulnerable communities, well, then we are getting somewhere.
We need more cities to pick up the banner of human rights and use human rights principles to re-imagine how government can best meet the needs of constituents.
Of course, if not for the work of advocates in Detroit who organized the visit of the Special Rapporteurs, the Philadelphia Bill may not have been linked with international human rights. But, as a result of their advocacy, more local actors are making these connections.
[Editors' Note: At the time of publication, the legislation was awaiting Mayor Nutter’s signature]
Wednesday, July 22, 2015
Last Thursday, President Obama became -- remarkably -- the first sitting U.S. president to visit a federal prison. Along with his unprecedented visit to a facility in Oklahoma, President Obama challenged the overuse of solitary confinement as inhumane, and charged the Justice Department with investigating the regulation of such punishment.
Many in the US and international community have cheered this development, while recognizing at the same time that the US lags behind other nations in critically examining its prison practices through a human rights lens.
But though both of these UN representatives have requested official invitations to visit the US, no invitations have yet been issued.
This is an opportune time to extend formal invitations to these UN human rights experts. Both have significant expertise and can contribute insights and perspectives to the Justice Department's work. Further, their visits could contribute to the information-gathering process, with the UN officials adding their fact-finding skills to the mix. Finally, pairing the Justice Department's work with UN visits would demonstrate to the world that the US is engaged in a serious, objective and open review of its practices.
Tuesday, July 21, 2015
The killing of five - four marines and one Navy sailor- in Chattanooga was immediately classified as an act of terrorism for purposes of investigation.
The violence certainly was terrorism, but not of the sort government investigators had in mind. Domestic terrorism has long been a favored term of many who advocate against domestic violence. Terrorism was at the root source of the Chattanooga killings.
As described in court documents, Muhammad Youssef Abdulazeez, the shooter who also died, grew up in a home where his father severely abused the mother and abused the children as well. The children were abused directly and also by being in the home when their mother suffered horrific beatings and sexual assault.
CBS news on-line reported that Mr. Abdulazeez' mother filed for divorce in 2009. In court pleadings she stated that "there are five children in the family and her husband, Youssuf Saed Abdulazeez, had repeatedly beaten her, at times in front of them. " Rasmia said on one occasion, she was beaten so severely she fled their home and went to a crisis center. She requested a restraining order and custody of the youngest child. In the documents, Rasmia also stated that she was sexually assaulted by her husband while the children were in the home. The documents allege that, on occasion, Youssuf had also been abusive towards the children, striking and berating them without provocation or justification."
Eliminate violence in the home and the remaining terrorism may disappear.
Monday, July 20, 2015
Last week's EEOC decision against the Department of Transportation resulted in another barrier broken in the LGBT equality movement. The case involved an employee who was not considered for the position as a front line manager at the air traffic control tower at Miami International Airport. The employee claimed discrimination based on being gay. Like many LGBT individuals, the employee was subjected to harassment by a supervisor. The Complainant alleged that his supervisor, who was involved in the promotion selection process, "made several negative comments about the Complainant's sexual orientation." In particular, the supervisor objected to any reference the employee made to the employee's partner.
The EEOC took great care in explaining its reasoning for interpreting that the straight man's discrimination against the gay employee was properly categorized as sex discrimination. Essentially, said the agency, the discrimination is based not upon the sex of the employee but the sex of the individual with whom the employee has a romantic relationship.
The agency had precedent for making explicit a form of discrimination that can be read as encompassed in the intent of Title VII. In Oncale v. Sundowner, also a Title VII lawsuit, Justice Scalia noted: "Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed."
While some may find the EEOC's reasoning an administrative stretch, the decision follows a logical argument based upon gender stereotyping. When the Complainant chose a male partner, the supervisor was offended by his failure to conform to the gender stereotype of men choosing female partners. Human rights advocates, particularly those who advance LGBT rights, are relieved. This decision is binding on employers who fall under EEOC jurisdiction. Through this decision, the EEOC has elevated the status of discrimination against same sex individuals and save the movement from what could have been a long and expensive attempt to pass amending or at least clarifying legislation.
LGBT barriers are falling quickly, and falling in a variety of legal settings. The cumulative decisions from agencies, state and federal, as well as a series of state and federal executive orders, added to existing case law, could eliminate many legal barriers. By the time an LGBT suit specifically seeking suspect class status reaches the U.S. Supreme Court, there could be a plethora of lower court and administrative decisions that provide support for the ultimate classification LGBT individuals seek.
Friday, July 17, 2015
Save the dates for these upcoming Human Rights conferences:
(1) Northeastern University Law School's Program on Human Rights and the Global Economy announces its 10th Annual Human Rights Institute: "Tapping into the Human Right to Water: Accessibility, Affordability and Quality," November 5th and 6th, 2015, at Northeastern University School of Law in Boston, MA. The Institute will bring together advocates, activists and academics to discuss and strategize concerning growing US right to water crisis. For more information, contact Jillian Tuck, firstname.lastname@example.org.
(2) Addressing the human right to water on a global scale, on October 20, 2015, the University of Connecticut's Institute of Comparative Human Rights will convene global experts, activists, officials, and scholars from around the world to examine the scope and nature of global water crisis, to discuss the legal and institutional basis of the human rights to water and sanitation, and to consider some innovations and best practices that have been implemented or advocated around the world. More information about this gathering is available here.
(3) The University of Dayton is hosting the biennial conference The Social Practice of Human Rights: Charting the Frontiers of Research and Advocacy on October 1-3, 2015. The conference will take place at the University of Dayton’s River campus and organizers have lined up an exciting series of events and guest speakers. More information is available here.
Thursday, July 16, 2015
In advance of its annual August gathering and just in time to add to your summer reading pile, the American Sociological Association has announced the winner of its 2015 Gordon Hirabayashi Human Rights Book Award: The Contentious History of the International Bill of Human Rights by Professor Christopher N.J. Roberts, published by Cambridge University Press. The award is given annually by the ASA Section on Human Rights to the author whose book "demonstrates the most thoughtful, competent, or innovative analysis of a theoretical or empirical issue" in the field of human rights. Roberts is an associate professor at University of Minnesota Law School.
The press release announcing the award provides the following description:
"The book points out that while the idea of human rights enjoys near-universal support, there is deep disagreement about what human rights actually are, what their true origin is, and how to best address their deficits. Roberts traces these conflicts back to their inception more than a half-century ago, when a series of contradictions worked their way into the International Bill of Human Rights, the foundation of the modern system of human rights. By viewing human rights as representations of human relations that emerge from struggle, Roberts's book charts a new path into the subject and offers a novel approach for addressing some of our most challenging contemporary conflicts."
The Contentious History of the International Bill of Human Rights has been praised by reviewers as "ambitious and well-executed," "paradigm-shifting," and "a brilliant achievement." Elizabeth S. Anderson of the University of Michigan said, "This book is simply splendid… deeply researched, beautifully written, surprising, devastating. It deserves to make a substantial impact among human rights scholars across the disciplines and carries important lessons for human rights activists as well.
Not one to rest on his laurels, Prof. Roberts's CV indicates that he is currently working on a new article: “The United States, Socioeconomic Rights, and Human Rights Formation,” a contribution that will be eagerly awaited by readers of this blog.
Wednesday, July 15, 2015
The Health and Human Rights Journal has issued a call for papers for a special section on universal health coverage and human rights, to be published in December 2016. The special section will be guest edited by Audrey Chapman, Healey Professor of Medical Ethics at the University of Connecticut School of Medicine. More information about the special section theme and possible topics is available here. Papers must be submitted by February 28, 2016, and must have a maximum word length of 7000 words, including references. Additional submission guidelines are available here.
The Journal of Human Rights Practice has issued a call for papers for a special issue focused on funding human rights, to be published in July 2016. The guest editors for the issue are Dr. Victoria Forbes Adam, Ingrid Massage, and Lucia Withers. The call notes that "[f]unding is a key issue for human rights organizations, but is underexplored in academic literature." Information about the scope of the issue, possible topics and submission guidelines is available here.
Tuesday, July 14, 2015
Yesterday's post addressed several resistance actions taken by individuals and groups who disagree with the outcome of Obergefell v. Hodges. Today's post considers some strategy considerations in proceeding with future litigation.
Obergefell has its limitation for sure, as Jeremiah Ho wrote here. While in deciding Obergefell, the court relied on both due process/fundamental rights and equal protection grounds, the Court stopped short of finding sexual orientation as a quasi-suspect or suspect class. That leaves us to ponder the future of equality litigation, particularly that addressing the suspect class issue.
As an initial matter, governmental gender orientation discrimination must be resisted as it arises. The consequences of systemic discriminatory policies are significant and far reaching. Clerks who resist issuing marriage licenses to same sex couples deserve an immediate response. Enforcement in government policy arenas is a priority so that the reality of marriage equality can be achieved.
Resistance by governmental entities is best dispatched promptly. Today's announcement that the Department of Defense will seek a plan whereby transgender soldiers can serve openly signals a relatively quick denouement for federal restrictions based on gender identity.
The Colorado wedding cake case has heightened significance following Obergefell. As noted yesterday, if decisions are based on state constitutional grounds, success for the plaintiffs may be within reach. However, for those who argue that gender identification must be designated a suspect classification under the federal constitution, careful thought is needed as to who will be the named respondents in future lawsuits. For several reasons, governments and large corporations may be the best targets of future gender identity and sexual orientation litigation. Individuals and small businesses may find themselves in a favorable position post-Hobby Lobby.
Secondly, if those who are not cisgendered want to assist in creating community acceptance for all gender identities, providing some litigation breathing space might be the best approach to countering resistance from individual community providers, such as wedding service vendors.
Justice Roberts' suggestion that plaintiffs would be better off waiting for their neighbors to accept change is naïve and idealistic. Read Jonathan Todres' analysis here. But we can provide an opportunity for marriage equality to find solid ground in communities without threats of lawsuits. A no-litigation pause can help. The fact is that change has already occurred. Obergefell saw to that. Giving our neighbors an opportunity to incorporate that change without the threat of litigation might be the best approach for community acceptance and changing social (and ultimately legal) norms. Whatever resistance remained in Massachusetts following the Goodridge decision dissolved in short order when businesses realized that a new source of income had been created.
How long should the pause be? No one has that answer. But we will soon. Each individual will be able to assess how acceptance is created, or not, in his or her own community. There are other suitable strategic lawsuits to be considered in advancing gender acceptance and elevating gender identity to suspect class status.
In the meantime, family law attorneys and wedding planners can rejoice in having been handed a new revenue stream.
Monday, July 13, 2015
Despite the power of Justice Kennedy's opinion, resistance to the Obergefell case persists in some quarters. This post is part one on this topic. Part two will address considered responses to the resistance.
Two conservative advocacy groups have asked their state's highest court to protect them in "resisting" enforcement of Obergefell v. Hodges. Citing constitutional grounds, the groups claim that the state (in this instance Alabama) can refuse to enforce marriage equality and indeed has the duty to defend state officials who refuse enforcement. Using the language of civil resistance invoked by Dr. King, the groups simply refuse to acknowledge the legitimacy of a ruling with which they disagree. Further analysis can be read on ScotusBlog.
Last year, Utah Senator Orrin Hatch declared that "anyone who still thinks that marriage equality is still up for debate in all fifty states isn't living in reality." Senator Mike Lee, also of Utah, disagrees. Last week, NPR reported that Senator Lee filed what he named "The First Amendment Defense Act" bill that would protect individuals and institutions who continue to discriminate against lesbians and gays based upon religious grounds. As an example, Lee said that "... a university with religious affiliations and federal grants should be allowed to deny employment to somebody married to a person of the same sex." He explained that "A religious institution, whether an educational institution or otherwise, just like an individual ought not have to choose between adhering to religious belief and, on the other hand, doing whatever it is that that person or that entity does, there ought not be a penalty attached to a religious belief."
Neither the Alabama petition nor Senator Lee's bill are likely to succeed. In Lee's case, the political fallout for representatives voting in favor of the bill would be severe in the upcoming elections. As for Alabama, the federal judiciary has shown no inclination to defy the US Supreme decision. In a time when vestiges of the Confederacy are falling, decisions that renew state discriminatory supremacy arguments would be ill-thought out and ill-timed.
Then there are the "wedding cake" resisters. In Colorado a same sex couple has sued a baker who refused to accept their order for their wedding cake. The religious freedom arguments made by Senator Lee reflect, in part, the arguments of the wedding cake defense. Other states have found in favor of same sex plaintiffs in the wedding services law suits based upon state laws.
Tomorrow's post will consider strategic and community considerations in bringing law suits against wedding service providers.
Friday, July 10, 2015
On July 8, in Morales-Santana v. Lynch, the Second Circuit Court of Appeals struck down a U.S. citizenship law requiring that citizen fathers comply with more stringent residency requirements than citizen mothers in order to transmit citizenship to their out of wedlock foreign born children. This differential sex-based treatment, the court said, violated the equal protection clause of the 5th amendment.
In 2008, the 9th Circuit Court of Appeals considered the same issue U.S. v. Flores-Villar, and upheld the statute. On appeal, the U.S. Supreme Court issued a one-sentence ruling affirming the 9th circuit decision based on a 4-4 vote; Justice Kagan was recused from that case because of her involvement as Solicitor General.
With the 2d circuit's decision in Morales-Santana, there is now a split in the circuits. But while Kagan would not likely be recused from Morales-Santana, vastly increasing the likelihood that the decision would be affirmed on appeal, the current administration may simply accept the ruling and forgo further review.
The law at issue is one part of a broader sex-based US citizenship law that can be traced to a deep history of stereotypes regarding parental responsibilities and women's supposed lesser capacities to operate as full citizens. Another sex-based aspect of the law -- regarding paternity establishment -- was upheld by the US Supreme Court in Nguyen v. INS. Similar sex-based conditions on citizenship transmission are imposed in dozens of countries, and Equality NOW is leading global advocacy efforts to equalize the laws through the courts and using international pressure.
The Morales-Santana decision is a small but decisive step toward such equal citizenship. Exercising intermediate scrutiny, the Second Circuit rejects the government's arguments that sex-based residency requirements are needed to avoid children's statelessness, or to ensure ties between the child and the parent. Further, the court "equalizes up," extending the more generous benefits to fathers rather than holding mothers to more stringent residency requirements.
In recent decades, many U.S. lawyers, including this author, have challenged aspects of these sex-based laws, with only minimal success. But perhaps the tide has turned. Kudos to the Stephen Broome and his colleagues at Quinn Emanuel Urquhart & Sullivan, along with the many lawyers who contributed to developing the arguments in this case, particularly Professor Kristin Collins of Boston University, the historian whose account of the origins of this law was cited by the court. As a result of this decision, Morales-Santana is deemed a citizen at birth based on his father's residency, and is no longer subject to detention or deportation.
Thursday, July 9, 2015
A recent interview with Rutgers' cultural historian Professor Bruce Franklin not only emphasized the need for prison transformation but made the explicit connection between anti-black and brown policies and voting manipulation.
Dr. Franklin pointed to voter disenfranchisement of those with felony convictions as benefiting George W. Bush's second presidential election. "This felony disenfranchisement was used to elect George W. Bush in 2000. In Florida alone, more than 400,000 citizens, mainly African-American were stripped of their vote, thus allowing Bush to win that state by 527 votes, thereby granting him the White House. The so-called “War on Drugs” is actually a War on the Poor, especially black and brown people."
Dr. Franklin goes on to address what he calls the "normalization of torture" in addressing U.S. prison policies. "To understand the depth of the both racial inequalities in the American prison system and how it has been used to normalize torture, it is necessary to recognize the roots of the prison system in African-American slavery." Dr. Franklin traces the history of torture, particularly how torture was a necessary tool for maintaining slavery. The culture of torture is evidenced in the modern day prison system.
"Sexual humiliation is the norm, and rape is endemic. A 1999 Amnesty International report documented the commonplace rape of prisoners by guards in women’s prisons. Prisoners are forced to walk around naked in front of guards of either sex. " Dr. Franklin then traces the direct line between sexual humiliation in prison practices and similar torture at Abu Ghraib.
To read the entire interview with Dr. Franklin, click here.