Thursday, June 26, 2014

Kudos to Sarah Cleveland!

On June 24, Columbia Law Professor Sarah Cleveland was elected to the UN Human Rights Committee, according to official UN sources.  Professor Cleveland was nominated by the United States Government in March to succeed Harvard Law Professor Gerald Neuman.  She will take up her new position in 2015 for a four year term. 

Active in implementation of human rights both domestically and internationally, Professor Cleveland has played a particular leadership role in domestic human rights implementation.  Notably, in addition to her scholarship, Professor Cleveland appeared as an amicus in the recent U.S. Supreme Court case of Bond v. U.S., arguing that the Offenses Clause of the Constitution provided authority for enactment of the statute at issue in that case. She was also an amicus participant in Hollingsworth v. Perry, arguing that comparative jurisprudence could aid the Supreme Court's decisionmaking on marriage equality. 

By the terms of its governing treaty, the Human Rights Committee comprises 18 independent experts of "high moral character and recognized competence in the field of human rights." At a time when U.S. activists are increasingly adding international advocacy to their toolkit, Sarah Cleveland is a spectacular addition to the HRC. 

June 26, 2014 | Permalink | Comments (0)

Wednesday, June 25, 2014

For Mary Ann Glendon: New Scholarship on Comparative Law

The Winter 2014 issue of the Duquesne Law Review, Volume 52 is a trove of commentary on the relevance of comparative law to U.S. jurisprudence.  Focused on Harvard Professor Mary Ann Glendon's work  on comparative law, the issue begins with an essay by Professor Glendon titled Comparative Law in the Age of Globalization. Glendon's article examines a series of well-known Supreme Court cases (Lawrence, Roper, Graham) relying on comparative law, and also includes a discussion of the uses of comparative law in legislative drafting by, for example, the American Law Institute.

Other contributors to the volume include Michael Rosenfeld, Thomas Kohler, Marco Ventoruzzo (writing on the role of comparative law in shaping corporate statutory reforms) and Kirk Junker.

Glendon strikes an optimistic note, hoping that obstacles to uses of comparative law "can be surmounted, and that the future of international legal studies will be marked by fruitful collaboration and interaction among comparatists, public international lawyers, international business law specialists, and all who labor on behalf of human rights."

However, contributor Kenneth Anderson writes in his essay, Through Our Glass Darkly, that the trend toward citation of foreign law in U.S. constitutional adjudication "seemed to be gathering steam in US courts between the early-1990s and mid-2000s, but by the late-2000s, it appeared to be stalled as a practice, notwithstanding the intense scholarly interest throughout this period."

In the abstract of his article, Anderson writes "[p]ractical politics within the US have a lot to do with this, of course. But other reasons, rooted in global politics, are perhaps now starting to be reflected in the US Supreme Court's jurisprudence regarding a body of otherwise doctrinally quite distinct legal topics -- the Alien Tort Statute, jurisdiction by US courts over acts and actors taking place outside US territory, among others, as well as the de facto trend away from foreign citation in constitutional cases. It has been widely noticed that the US Supreme Court has taken steps in these areas mostly to pull back, constrain, and condition the extraterritorial reach of US courts, at least in the absence of clear legislative direction. The occasional use foreign law by US courts in constitutional adjudication represented the flip side of the reach to universalism that the Court now appears be reining in."

While you're at the Duquesne Law Review site, check out Professor Cheryl Hanna's article on Violence Against Women and human rights in the current Summer issue. Reviewing the legacy of U.S. v. Morrison and Castle Rock v. Gonzales, Professor Hanna then looks to the InterAmerican Commission's critique of U.S. law.  As if acting on the hopes for the future articulated in Glendon's essay -- and breaking free of a narrow focus on U.S. Supreme Court jurisprudence -- Professor Hanna writes that "now when people ask what kind of work I do, what does my scholarship involve, I’ve stopped saying I do women’s rights or violence against women, and I just say, “I’m a human rights worker. I work in human rights in the United States.”

 

 

June 25, 2014 | Permalink | Comments (0)

Tuesday, June 24, 2014

The Human Right to Water in Detroit

Is Detroit violating basic human rights?  Several media outlets reported in recent days that the city of Detroit is taking steps to turn off the water supply of tens of thousands of delinquent customers. The media may have only just picked it up, but this story is not new.  More than a year ago, in April 2013, the Georgetown Law Human Rights Institute published Tapped Out: Threats to the Human Right to Water in the Urban United States.  Focusing on high water rates in Detroit and Boston, the report indicated that mass water shut-offs in Detroit extended back as far as 2003.  According to the report, "[i]n the past decade, [Detroit's] population has fallen by 25 percent and large areas lie vacant.With fewer ratepayers contributing to maintain water infrastructure, DWSD [Detroit Water and Sewerage Department]  has increased rates to compensate for lost revenue. The result has been an acute affordability crisis with tens of thousands of Detroit residents experiencing water shutoffs for inability to pay."

When the U.N. Special Rapporteur on the Human Right to Safe Drinking Water and Sanitation visited the U.S. in 2011, she was particularly critical of discrimination in access to clean drinking water and sanitation. The U.S. contested aspects of her report, asserting that she had based her findings on a few anecdotes rather than substantial data.

Now, the Special Rapporteur will have the opportunity to revisit the right to water in the U.S., since a coalition of groups, including the Blue Planet Project, the Food & Water Watch, the Detroit People's Water Board, and the Michigan Welfare Rights Organization have filed a complaint with the U.N. Special Rapporteur.  These groups allege that Detroit's water policy violates human rights, and that the city is engaged in "a ploy to drive poor people of color out of the city to facilitate gentrification."

In the past, the UN Special Rapporteur has not shied away from criticizing local policies when important rights to water and sanitation are at stake. Detroit (and the U.S. government, which is ultimately responsible for local human rights compliance) should take note and expect international fall-out should the complaints of mass water cut-offs be borne out.  And Boston, which was singled out in the Rapporteur's 2011 report and also in the Georgetown study for high water rates and discriminatory policies, should start taking serious steps to ward off similar criticisms. 

June 24, 2014 | Permalink | Comments (0)

Monday, June 23, 2014

Montreal's Human Rights Charter

As the recent Law & Society meeting in Minneapolis, I had the opportunity to learn about Montreal’s remarkable Charter of Rights and Responsibilities (MCRR), in force since January 1, 2006. A hat tip to Professor Benoit Frate for sharing information on this topic drawn from his work in progress on the Charter.

Explicitly referencing human rights norms, the MCRR was developed through an extensive public consultation process. It is the only such local human rights charter in Canada, and is more extensive than any local human rights provision in the U.S. UNESCO reports that it has no known equivalent.  

The MCRR addresses the main sectors of municipal activity: democracy, economic and social life, cultural life, recreation, physical activities and sports, environment and sustainable development, security and municipal services. It establishes the principle of collective rights and responsibilities of city residents. Though the Charter cannot be invoked in a court of law, it is binding on the City of Montreal, its elected officials and city employees.  The MCRR designates Montréal’s ombudsman to identify solutions when citizens and the city disagree on issues based on the Charter’s content; this is the only formal recourse available when citizens feel that the Charter has been violated.

Academic analysis of the MCRR has not yet been extensive, though Frate is working to change that. Currently, two of the most complete works are:

-Lucie Lamarche, 'Economic and Social Rights and the Era of Governance and Governance Arrangements in Canada: the Need to Revisit the issue of the Implementation of International Law of Human Right' in Chi Carmody and Valerie Oosterveld (eds.), Is Our House in Order? Canada’s Implementation of International Law (Montreal and Kingston: McGill-Queen’s University Press, 2010), pp. 115-140.

-Lucie Lamarche, 'Le droit à la ville "Made in Québec": un exercice de gouvernance marqué par le pragmatisme? Le cas de Montréal' (2009) 5:1 Revue Gouvernance. Available at: http://www.revuegouvernance.ca/files/Spring2008/Lamarche.PDF

In addition to these academic writings, UNESCO and UN-Habitat published a report with some entries on the Charter. The City of Montreal also maintains a website dedicated to the Charter.

A review of the Ombudsman's work provides a window into the MCRR's effectiveness.  The Ombudsman maintains a website and also publishes annual reports.  According to the 2013 report, the Ombudman dealt with 55 complaints that invoked the Charter, out of more than a thousand complaints handled by the office during the year.  The MCRR complaints dealt with issues ranging from public participation in government, to nuisances, to protection of the urban forest. Frate reports that though the Ombudsman approach might seem a weak implementation mechanism, the Ombudsman has been able to build support for human rights and for the MCRR through savvy use of political capital. 

As more local governments in the U.S. consider adopting and implementing human rights norms on the local level, they should consider Montreal's example. 

June 23, 2014 | Permalink | Comments (0)

Friday, June 20, 2014

Rights for Others: A Book Commentary

by Cynthia Soohoo

It turns out the United States is not alone in thinking of human rights as a foreign policy export, and even in countries with a commitment to internationalism, it’s difficult to get governments to live up to their human rights obligations at home.

 Barbara Oomen’s new book Rights for Others: The Slow Home-Coming of Human Rights in the Netherlands describes how despite a long Dutch tradition of support of international law and a constitutional structure that make the Netherlands "one of the most friendly constitutions towards international law in the world," using international human rights obligations to actually change domestic policies is never easy.

 The Dutch constitution directly incorporates international treaties into domestic law and provides that treaties that are passed by two-thirds of the Houses of the States General can supersede constitutional provisions.   Human rights treaties protect a broader range of rights than the Dutch constitution and, unlike the rights protected by the Dutch Bill of Rights, are subject to judicial review.  The Dutch openness to international law reflects a long tradition of support for the international legal order and engagement in developing international treaties and institutions.

 Despite this, Oomen describes the struggles that domestic activists face in using international human rights law to change domestic policies.  She explains that although the Dutch constitution appears open towards international law, when you dig deeper, legal culture and substantive and procedural barriers often prevent direct implementation. 

 In discussing the Netherlands, Oomen also identifies many of the same structural issues that plague human rights implementation in the United States, i.e., the disconnect between foreign affairs officials who enter into human rights commitments and domestic agencies that lack incentive to implement them and the perception that human rights arguments are inappropriate in countries with relatively good human rights records.

 Many human rights issues in the Netherlands are strikingly similar to issues in the United States.  One chapter discusses efforts to prohibit discrimination against gay teachers in religious schools.  Another chapter describes how the Dutch framework to address domestic violence developed in parallel to international standards, resulting in the absence of key elements of a human rights approach.  For instance, Dutch domestic violence policies were criticized by the Special Rapporteur on Violence Against Women because of their emphasis on gender neutrality.  According to the Special Rapporteur, failure to look at domestic violence within the larger context of gender discrimination resulted in an over-emphasis on the role of culture that linked violence to immigrant cultures.  Dutch policies also failed to recognize socio-economic factors underlying violence and the increased vulnerability of many immigrant women resulting from their undocumented status and lack of access to benefits such as government-funded shelter.  Interestingly, like the United States, the Netherlands also has been criticized for an over-emphasis on criminal justice approaches in response to domestic violence and trafficking that fail to prioritize the rights of victims and survivors.

 Although the Dutch have historically been known for their multiculturalism and internationalism, Oomen describes a profound shift in attitudes at the beginning of the millennium resulting from the pressures of immigration and growing Islamophobia after 9/11.  Dutch ambivalence towards immigrants is reflected by the Netherlands’ failure to ratify the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families -- the only major human rights treaty that it hasn’t ratified.  And like the U.S., the Netherland denies a number of basic social benefits to undocumented immigrants.

 Oomen also relates how the rise of xenophobia, fear of immigration and attempts to dismantle the welfare state in the Netherlands simultaneously created a greater need for human rights arguments and the growth of an opposition claiming that enforceable human rights commitments threaten Dutch culture, sovereignty and democracy.  In the face of this opposition, Oomen discusses the importance of local adoption and ownership of human rights through a vibrant human rights cities movement and the creation of a National Human Rights Institute as efforts to breathe life into Dutch human rights commitments. 

The Rights of Others reminds us that even in countries with favorable views towards international law, using human rights to bring about real change is a slow process.  Despite profound differences in constitutional architecture and attitudes towards international law, the struggles in the United States and the Netherlands to "bring human rights home" have remarkable similarities. 

 

 

June 20, 2014 | Permalink | Comments (0)

Thursday, June 19, 2014

Bond v. United States Demonstrates Why International Law Classes Should be Mandated for Law Students and Practicing Attorneys

by Penny Venetis

On June 2, 2014, the U.S. Supreme Court issued a ruling in Bond v. United States. The facts in Bond are so ridiculous that unfortunately every news outlet reporting on the case spent more time describing them than discussing the complex legal issues raised by the opinion. It is clear that in writing the majority opinion, Chief Justice Roberts took great delight in drafting language that showcased his amusement with the facts, without crossing the lines of propriety. Hidden behind the pathetic facts of the case, however, are critical legal issues involving international and constitutional law, federalism, and domestic implementation of international treaties.

The facts can be distilled to two sentences: After learning that her husband impregnated her best friend, Ms. Bond put chemicals on surfaces that her friend was likely to touch. The pregnant friend avoided most of the chemicals, and suffered only a minor burn to her thumb (which was remedied by putting it under running water). 

Miffed that the local prosecutor did not take the case seriously, a zealous federal prosecutor in Pennsylvania successfully brought charges against Ms. Bond for violating the Chemical Weapons Convention Implementation Act of 1998. Congress enacted this 1998 statute to enforce domestically the Convention on the Prohibition of the Development, Stockpiling, and Use of Chemical Weapons and on their Destruction that the U.S. ratified in 1997. Such implementing legislation is necessary because there is a presumption that treaties are not self-executing (i.e., that they cannot be enforced domestically) unless Congress specifically states so in the treaty itself, or subsequently enacts implementing legislation.

Simply by charging her with violating the Chemical Weapons Convention, the prosecutor took the case out of the local realm and turned it into a major debate about the relationship between international treaties and domestic law. By the time the case got to the Supreme Court, the focus was no longer on Ms. Bond’s two-bit vengeful acts, but rather, on whether Congress had the constitutional authority to enact legislation that implements international treaties domestically. Did the prosecutor really intend for this to happen?

The Supreme Court unanimously held that Congress did not intend the CWCIA to extend to crimes like Ms. Bond’s. Allowing Ms. Bond’s conviction to stand “would transform the statute from one whose core concerns are acts of war, assassination and terrorism into a massive federal anti-poisoning regime that reaches the simplest of assaults.” In the process of issuing a very limited majority opinion, Chief Justice Roberts wrote quite extensively, however, on the relationship between federal and state law.

Justices Scalia, Thomas and Alito grabbed the opportunity to use this ridiculous case as a platform for their Federalist Society viewpoints. Their opinions call into question Congressional power to implement treaties domestically. Their opinions challenge the 1920 case Missouri v. Holland, which courts have long interpreted as giving Congress the power to enact legislation to implement treaties domestically, even when the implementing legislation intrudes on what would otherwise be within a state’s exclusive province.

Justice Scalia sounds the alarms that international treaty provisions might cause courts to override Supreme Court cases limiting Congressional power. (Tellingly, the only two examples he could muster to demonstrate his point were the Supreme Court’s very divided decisions striking down parts of the Violence Against Women Act, and federal gun control laws that limited firearm use near schools!) Justice Thomas’s opinion goes even further. He calls into question Congress’s authority to enter into any treaties that do not concern foreign relations. Treaties that would fall into that category that readily come to mind are international human rights treaties.

When reading the opinion, I wondered why in his right mind the prosecutor charged Ms. Bond with violating the Chemical Weapons Convention. Although I have not spoken with the prosecutor, I have concluded that it is highly unlikely that he had any idea of the implications of his actions. I also highly doubt that the prosecutor wanted this wacky case to be a test case for Georgetown professor Nicholas Quinn Rosenkranz’s theory that Missouri v. Holland should be overruled. Rosenkranz’s 2005 Harvard Law Review article on that subject sparked countless academic symposia, and was embraced fully by Justice Scalia in Bond.

If the prosecutor had taken a basic course in international law in law school, however, or a CLE course covering those topics, he most likely would have thought twice before invoking the Chemical Weapons Convention. As Chief Justice Roberts pointed out, a plethora of other criminal statutes exist that most certainly cover adequately Ms. Bond’s legal transgressions. The Chemical Weapons Convention is a treaty, which by definitions has international implications. Had the prosecutor known even basic international law, he would have realized that parties outside of Norristown, Pennsylvania would be watching his case very very closely.

We are in an era where law schools are re-thinking their curricula in response to criticism by judges and employers that law students are ill prepared for the practice of law. Law schools are focusing on adding “experiential” components to doctrinal classes. They are also contemplating making legal clinics mandatory, or having law school be two years of classes and a third year of supervised hands-on lawyering. All of those good ideas should be explored further.

On the heels of Bond v. US, however, I propose another large-scale curricular change. Law schools and state bars should require all law students and practicing lawyers to take at least one course in international law. That course should cover both public and private international law.

Today, everyone, including lawyers, comes into contact with international issues. Even small local businesses deal with international law issues, whether they realize it or not. (For example, the local deli may sell vegetables from Peru and employ documented or undocumented immigrants.) Thousands of refugees flee war-ravished failed states in search of safe homes that, sometimes, are half way around the globe. As a result, the U.S. and countries around the world are struggling to define their immigration policies. And, on and on it goes.

That is why lawyers need to be able to recognize the full scope of international law issues when they encounter them. Lawyers need to know the implications of invoking international law, and should know when they are in danger of making bad law that they did not intend. Many valuable resources would have been saved if the federal prosecutor who charged Bond, or his supervisor, realized that invoking the Chemical Weapons Convention Implementation Act for such a petty crime was pure folly. Because they failed to engage in basic issue spotting, we now have a U.S. Supreme Court decision where three concurring justices seriously call into question case law that has been settled for nearly 100 years that defines Congress’s treaty-making powers

June 19, 2014 | Permalink | Comments (0)

Wednesday, June 18, 2014

U.S. Human Rights at the Movies

Human Rights Watch's annual Human Rights Film Festival is in full swing at Lincoln Center in New York City. U.S. human rights issues are well-represented in this year's film selections.  Private Violence addresses violence against women in the home.  Out in the Night focuses on the challenges facing lesbian youth in New York City. The Homestretch follows homeless teens in Chicago. Several of the films offer profiles of individuals -- transgender activist and former US Navy SEAL Kristen Beck, for example, and the outspoken George Takei of Star Trek fame, a victim of  U.S. Japanese internments now speaking out for gay rights.

The NY Times notes that 16 of the 22 films featured at the festival are directed by women. According to the Times, "[t]he festival’s emphasis on women is measured not only by the number of female directors but also by the tone of their films," particularly noting the intimate portrait provided in Private Violence.

While the Human Rights Watch festival provides a showcase for independent films and filmakers, some advocacy groups also work closely with filmmakers to create a final product that supports the US human rights movement.   The National Economic and Social Rights Initiative in 2010 served as Executive Producer of Coming Home: the Dry Storm, a documentary on post-Katrina housing which won the Patois  Film Festival Jury Award in New Orleans.  Similarly, the Coalition of Imokalee Workers (CIW) collaborated closely on Food Chains, a film on the fair food campaign led by CIW. The film was screened at at the Tribeca film festival. For Professor Mark Gibney's rankings of 101 best Human Rights movies (both features and documentaries), including many focused on the U.S., check out the recent book Watching Human Rights: The 101 Best Films, published in 2013.

If thinking about these movies makes you want to reach for your popcorn, don't wait. The Human Rights Watch Film Festival ends June 22.

June 18, 2014 | Permalink | Comments (0)

Tuesday, June 17, 2014

Architecture that Violates Human Rights?

Legal ethics codes in the U.S. do not mention any ethical obligations relating to "human rights."  In contrast, the ethics code of the American Institute of Architects addresses human rights head-on, providing that "Members should uphold human rights in all their professional endeavors."

As reprinted in the April 14 edition of Arch Daily, this provision has prompted some to ask whether architects violate their ethics code when they design, for example, prisons with isolation cells or death chambers.

Since 2005, Architects/Designers/Planners for Social Responsibility (ADPSR) has been leading an effort to advocate for additional specificity in the Architects' ethics code that would create enforceable standards by, for example, adding references to international human rights law norms condemning the death penalty.  Among other things, ADPSR is circulating a petition, which can be signed by non-architects as well as architects.  AIA chapters in San Francisco, Boston and Portland have endorsed the proposal. In April 2014, the UN Special Rapporteur on Torture, Juan Mendez, endorsed the campaign.  In a public letter to the AIA President, the Special Rapporteur asserted that "it is not appropriate for individuals or organizations that support human rights to participate in or condone the design or construction of supermax prisons (or other similar spaces). In addition, juvenile detention centers and secure mental health facilities should not be designed with spaces intended for any form of solitary isolation."

Raphael Sperry, founder of ADPSR, notes that "[w]e think of architectural regulations as being there to ensure that buildings are safe for the public. But what if a building’s harm is not caused by unexpected structural failure but by the building performing exactly as intended? Can a building designed to facilitate human rights violations amount to a violation in itself? And what is the responsibility of the architects involved?"

Sperry concedes that "Legislators, governors and prison staffers of course hold the greatest responsibility for prison conditions − after all, any room can be used to torture someone, not just one intended as a solitary isolation cell." Doctors who administer death-causing drugs have also been challenged as human rights abusers while practicing their professions, yet in some states they are legally required to administer the death penalty. But, Sperry writes, designers are under no such obligations and they are complicit, in part because they voluntarily accept projects that they know will be used for human rights violations. 

Sperry urges that designers reject such projects. But, he says, "[t]he ethical burden on designers is too great for individual architects or firms to handle alone, which is why the AIA must speak clearly and forcefully for human rights. Turning our backs on projects that would violate human rights is an essential move towards realising a vision of a world of equality and prosperity − the world that architects strive to build every day."

 

June 17, 2014 | Permalink | Comments (0)

Monday, June 16, 2014

Equal Recognition Before the Law Includes Those with Disabilities

Equal recognition before the law for all persons, including persons with disabilities

By Lauren E. Bartlett

 

The U.N. Committee on the Rights of Persons with Disabilities released its first general comments during the April 2014 session.  General comment No. 1 on Article 12 equal recognition before the law is definitely worth a read.  The Committee affirms that persons with disabilities must have full legal capacity and be recognized before the law on an equal basis with others. 

The Committee also clearly and succinctly explains the difference between legal capacity and mental capacity using a human rights-based approach, noting that “[t]he concept of mental capacity is highly controversial in and of itself… It is not, as it is commonly presented, an objective, scientific and naturally occurring phenomenon. Mental capacity is contingent on social and political contexts, as are the disciplines, professions and practices which play a dominant role in assessing mental capacity.” 

The Committee also points out that in most of the State party reports its has examined so far, “the concepts of mental and legal capacity have been conflated so that where a person is considered to have impaired decision-making skills, often because of a cognitive or psychosocial disability, his or her legal capacity to make a particular decision is consequently removed.”  Instead, the Committee explains, State parties must refrain from denying persons with disabilities their legal capacity, and instead must provide persons with disabilities access to the support that may be necessary to enable them to make decisions that have legal effect.  Support could include measures relating to universal design, accessibility, communication, etc.

The Convention on the Rights of Persons with Disabilities is the newest human rights treaty and this interpretation of the right to equal recognition before the law, a right that is also found in the UDHR and ICCPR, is almost revolutionary.  With so much talk again about trying to push for Senate ratification of the Convention, it would be a good idea for all human rights practitioners to gain a better understanding of the Convention and what a human rights-based approach to disability rights entails.

 

 

 

June 16, 2014 | Permalink | Comments (0)

Friday, June 13, 2014

Cities for CEDAW

Since San Francisco adopted CEDAW principles as municipal law in 1998, the San Francisco Department on the Status of Women has been a leading voice in domestic implementation of human rights.  In March 2014, the Department once again took a leadership role.  At the meeting of the UN Commission on the Status of Women, the San Francisco Department on the Status of Women and the Women's Inter-cultural Network co-sponsored a side event "Cities for Sustainable Development and Women's Human Rights." The purpose of the event was to highlight the achievements and challenges of achieving sustainable development and women’s human rights in cities.

At the forum, the sponsors launched a new campaign, "Cities for CEDAW."  Among other things, the sponsors are asking the US Conference of Mayors to endorse a resolution calling on cities to adopt and implement CEDAW principles.  The Cities for CEDAW website highlights ways in which CEDAW has invigorated women's equality in San Francisco. One important contribution, a direct outgrowth of the SF CEDAW framework, is the development of Gender Equality Principles, an initiative that brings the business community and government together to expand gender equality.

JoAnn Kamuf Ward and I have blogged here about the growing involvement of U.S. mayors in implementing human rights.  Imagine the impact on women and girls if more cities followed in San Francisco's footsteps!

 

June 13, 2014 | Permalink | Comments (0)

Thursday, June 12, 2014

Criminal Prosecutions and Battered Women as Witnesses: Part II

Following up on a prior post by Leigh Goodmark, yesterday I wrote of the difficulties battered women face in incorporating their narratives and goals into prosecution plans.  Often prosecutors expect survivor-witnesses to cooperate by proceeding with criminal prosecution based upon the crimes against them and use coercive measures to secure their cooperation when they deem it necessary. 

For reasons discussed yesterday, abused women and prosecutors are often at odds over the merits of criminal prosecution.  Much of the tension results from miscommunication that leaves both sides frustrated.  One suggestion for relief is incorporating education for prosecutors on the dynamics of domestic violence.  Survivors often take action (or not) that is counterintuitive to those who have not experienced violence.  Yet when framed in the context of family needs and safety, survivor decision making is sensible.  Education on the dynamics of intimate partner abuse can help eliminate judgment of survivor goals and rid us of any need to control the survivor's choices.  As lawyers, often we believe that the law is the ultimate tool for keeping survivors safe and in ending domestic violence.  With decades of experience now in domestic violence law enforcement, we know that the rate of recidivism is high, and that the legal intervention, both civil and criminal, may assist with a survivor's immediate safety but has little long-term impact on eliminating the root causes of domestic violence.  Why this is will be an ongoing debate and one worthy of research.

Some state's attorneys have had successful survivor relationships while pursuing criminal prosecutions.  When Judge Jerry Bowles of Louisville, KY prosecuted domestic violence cases, he noticed his colleagues' distress when half of the their victim-witnesses in domestic violence cases failed to appear at trial of their abusers.  Rather than becoming angry with the survivor, Judge Bowles set out to discover why domestic abuse cases had such a comparatively low rate of witness appearence.  He contacted local domestic violence service providers to learn what was different about these cases.  He learned about the dynamics of abuse in the intimate partner context.  He learned that a battered women needs autonomy in decision making or she will feel as controlled by the state as she was by her abuser.  He learned that no two survivors are the same and that decision making is based on safety choices as well as survivor goals for herself and her children, and yes, for the abuser.  He learned that prosecutors may assume that abused women seek punishment for the abuser.  And certainly part of the state's charge in protecting citizens includes prosecution.  But, he learned, that battered women want nothing more than for the violence to stop and for the abuser to receive help.  Prosecutor Bowles reframed his view of domestic violence prosecution, eliminating the victim blaming response to the failure or reluctance of abused women to testify against their abusers.  Judge Bowles organzied Kentucky's first domestic violence prosecution unit, which enjoyed a renewed relationship with survivors and led to increased cooperation between survivors and prosecutors. 

About twenty years later, Los Angeles City's Attorney Richard Kraft found himself prosecuting domestic violence cases.  He too incorporated respect for victim decision-making into prosecution policy.  He accomplished a merger of respecting survivor choice not to participate in prosecutions with the state's obligation to prosecute by instituting a no-drop prosecution policy but one that did not rely upon victim-witnesses' testimony.  Prosecutors were instructed to proceed with every prosecution but to respect the survivor's choices around participation.  Attorney Kraft believed that there was value in abusers knowing that they would be prosecuted for their behavior and that prosecution did not rely upon victim cooperation.  In order to accomplish this goal, prosecutors had to let go of worries about win or loss.  When prosecutors are no longer working within the win-loss paradigm, prosecutors are relieved of enormous bueracratic pressure.  They are freed to implement policy that defines success through qualitative measurements.

Judges, too, can impede successful prosecution of abusers.  Many simply dismiss cases if the victim-witness fails to appear.  Often prosecutors and police have sufficient independent evidence to prosecute domestic violence offenders.  Judges who focus on punishing victims for failing to appear often ignore prosecutor requests to proceed with trial despite the failure of one witness to cooperate.  Frequently both police and prosecutors report a judge's comment that "If she doesn't care, why should I?"  She may in fact care very much.  She may desire successful prosecution.  She may simply have other pressures, including witness intimidation, for not participating.  It is worth exploring the basis for this sort of judicial dismissal and determine whether or not gender bias plays a role. 

The above examples are not meant to limit how domestic violence prosecutors can meet their interpretation of prosecutorial obligations while honoring victim autonomy and eliminating victim blaming.  The possibilties are endless and the need for creativity is .  The challenge will be for states' attorneys to accept the education challenge and to incorporate new techniques and attitudes into how they work with survivors.  Creative shifts in case prosecution techniques will follow. 

 

 

June 12, 2014 | Permalink | Comments (0)

Wednesday, June 11, 2014

Abused Women and State Criminal Prosecutions: Continuing The Conversation

On June 5th, Leigh Goodmark posted about a county in Maine where two women who are victims of domestic violence were arrested. One woman was arrested because she failed to appear as a witness at the criminal trial against the man who abused her.  The second arrest happened because prosecutors believed that the abused woman would not appear atupcoming the trial of her abuser. 

There are many disturbing aspects to these arrests.  The most disturbing for me is that somehow willingness to engage the criminal justice system responses to domestic violence has become the standard that many judges use in determining if a woman is worthy of assistance.  For example, judges hearing civil protection order cases often ask if the petitioner called the police.  In fact, most abuse survivors do not call the police. Often, failure to call is driven by factors other than safety concerns.  Those survivors who do call the police consistently call to stop the violence, but may not want an arrest to result. 

The reality is that the criminal justice system response is often driven by the unrealistic expectations of prosecutors who insist that victims (with whom prosecutors often have had little direct contact prior to trial day) respond with what they deem appropriate cooperation. Prosecutors and others who are part of the state response understandably believe in the efficacy of their efforts.  And no one disputes the state's obligation to keep citizens safe.  Of course, one cannot discount the pressures that prosecutors are under to improve their "win-loss" ratios.  Also, in the early days of battered women's advocacy, both police and prosecutors failed to arrest and charge men who battered.  Their effective treatment of domestic violence as a crime was not addressed adequately until states started passing domestic violence assault and battery legislation.   It is worth asking whether these laws were really necessary, and what impact they have had. There were sufficient existing laws  in every state where assault and battery charges could be brought, but they were not enforced in domestic violence cases.   This differentiation of domestic violence as a separate crime was, in many ways, the beginning of the state's conception of domestic violence survivors as witnesses rather than independent actors with their own goals. 

This is part of the danger when we look to criminal justice solutions as absolute without consideration of the ways in which domestic violence is different from other crimes.  When a thorough understanding of survivor and abuser dynamics is missing from remedies, we lose our ability to communicate effectively with survivors involved in the criminal justice system.

I wonder what role gender bias plays into aggressive anti-survivor responses in the criminal justice system.  I have not heard of material witness warrants or failure to testify actions in other misdemeanor cases.  Usually we hear of these remedies in capital murder cases or similar felonies.  Yet when the witness is a female victim of domestic abuse, the masculine criminal justice system seems to take offense when she refuses to participate.  Reluctant witnesses in drug or gang cases have more prosecutorial (and public) empathy, even though their testimony may be desperately needed in order for successful prosecution.  Those witnesses are often offered not punishment, but protective custody.  Prosecutors in gang cases address the witnesses' fear, rather than holding them in contempt.  The witness’ reluctance to testify in murder or gang prosecutions is easily understood because we can place ourselves in the witness' position.  But on some level sometimes we still blame survivors for their situations.  Subtle victim blaming plays out in many ways, including prosecutorial anger toward non-cooperating survivors.

A survivor's relationship with the batterer is much more complicated than a crime victim's relationship with a stranger.  Fear of retaliation is not the only reason a survivor may not want to testify, as Goodmark pointed out.  The "uncooperative" domestic violence witness may be responding negatively to a criminal justice system that is directive and fails to acknowledge her reasons for not wanting to participate in the prosecution.  Overworked prosecutors would benefit from education on this issue.  The information on survivors responses would simultaneously relieve some of their stress in prosecuting domestic violence cases while also bringing a more empathetic understanding of those responses.

Part II of this post will address additional alternatives available to prosecutors.

 

June 11, 2014 | Permalink | Comments (0)

Tuesday, June 10, 2014

Human Rights Backsliding

In an important and provocative new article, Human Rights Backsliding, 102 Cal. L. Rev. 603 (2014), Andrew T. Guzman and Katerina Linos take a fresh look at the collective dynamics at play worldwide when one or more countries ascribe to human rights norms.  According to their abstract: 

"Human rights advocates and international lawyers view international agreements and other   international norms as important tools to improve human rights around the world. This Article explains that, contrary to widely held beliefs, international human rights norms are not a one   -  way street. Norms capable of generating improved behavior in poorly performing states sometimes also exert a downward pull on high-performing states. This downward pull leads to what we term “human rights backsliding”--a tendency for high-performing states to weaken their domestic human rights regimes relative to prior behavior or relative to what they would otherwise have done.

The theory of backsliding is a novel one, so we introduce it with several real-world examples. In   order to describe the theory, its assumptions, and its consequences as explicitly as possible, we   also provide a formal model of backsliding. We then explain how an understanding of human   rights backsliding helps explain state behavior that is otherwise puzzling. Finally, we explore some of the implications of backsliding for the design of international agreements, and we consider strategies for advocates seeking to advance human rights internationally."

Among the examples offered by the authors, alongside those from Sweden and the United Kingdom, is the treatment of same-sex marriage in the United States. Defining backsliding to include efforts to use international norms to limit or forestall rights, the authors observe that Supreme Court Justice Alito "was the only Justice to cite to foreign practice in both Hollingsworth and Windsor, and he did so with the purpose of countering the Supreme Court's tentative support of same-sex equality." Justice Alito cited, for example, the fact that no nation recognized same-sex marriage until the Netherlands in 2000.  Justice Alito's dissent invoked the relatively low standards in other nations -- standards that the authors claim, made it harder for same-sex marriage proponents to advocate for same-sex marriage rights. 

At the conclusion of their article, the Guzman and Linos write:

"It is not our purpose to undermine any ongoing human rights efforts, and we do not believe this Article does so. We believe, rather, that an understanding of backsliding allows both advocates and policy makers to think more clearly about how human rights norms affect the outcome that really matters: the way in which humans are treated."

They promise future work, using the rigorous model that they develop, to assist advocates to work more effectively in a world where human rights backsliding by some is a predictiable outcome of human rights successes for others.

June 10, 2014 | Permalink | Comments (0)

Monday, June 9, 2014

The Right to a Level Playing Field: Institutional Factors Leading to Wrongful Conviction

The International Covenant on Civil and Political Rights provides in Article 14 that "All persons shall be equal before the courts and tribunals." With this standard of fairness in mind, co-editor Brian Howe examines the devastating consequences of widely-accepted asymmetries in the U.S. criminal justice system.  Brian writes:

Each wrongful conviction is a particular and circumstantial tragedy, but as a whole they can also reflect generalized failures of our institutions of criminal law. And one of the most common institutional factors in wrongful convictions is the disproportionate power of state and federal prosecutors. Of course prosecutors, as a rule, are not interested in convicting the wrong person. But it makes sense that the ethical rules and duties of prosecuting attorneys might sometimes be subconsciously clouded by the natural desire of a human being, in an adversarial system, to "win." Short of abandoning our adversarial system all together, the best way to mitigate against this risk is to ensure a level playing field, on which a competent defense counsel (equally motivated to win) can challenge and hopefully overcome a prosecution against an innocent man.

Some asymmetries are easy to spot and correct. Asymmetries in information, for example, are a major source of wrongful convictions. The prosecutor has access to the entire police file, but the Constitution only requires the disclosure of materially exculpatory evidence. The initial decision about whether evidence is materially exculpatory is left to prosecutors themselves, whose role in the case can make an impartial assessment of the information difficult, if not impossible. This asymmetry could be cured almost entirely by open-file discovery, paired with limited disclosure by defense attorneys. Some states are moving towards this today via changes in procedural rules governing criminal discovery.

Other asymmetries in power are harder to fix. As the number and severity of criminal statutes ratchet up, so does the leverage of prosecutors to coerce guilty pleas. While prosecutors need to have the discretion to decide which specific charges will be brought against a defendant, overcharging has become the norm in many jurisdictions. Rather than the indictment acting as a reasonable, impartial assessment of a person's criminal liability, it serves intentionally high opening offer to a plea negotiation. This gamesmanship may end up in something like justice for actually guilty defendants, but it can also intimidate an innocent man out of risking a trial.

The power of prosecutors in plea negotiations has become concerning enough to attract the attention of federal district court judge Jed Rakoff from the Southern District of New York. Judge Rakoff explained the problem in a lecture at the University of Southern California:

""People accused of crimes are often offered five years by prosecutors or face 20 to 30 years if they go to trial," Rakoff said. "The prosecutor has the information, he has all the chips … and the defense lawyer has very, very little to work with. So it’s a system of prosecutor power and prosecutor discretion. I saw it in real life [as a criminal defense attorney], and I also know it in my work as a judge today.”

***

"Plea bargains have led many innocent people to take a deal.”

Judge Rakoff suggests eliminating mandatory minimums as a solution, but doubts it is feasible for political reasons. Instead, he suggests plea bargaining be removed from the discretion of the prosecutor and shifted to a neutral magistrate:

"What I have in mind is a magistrate judge or a junior judge would get involved,” Rakoff said. “He would take offers from the prosecutor and the defense. … He would evaluate the case and propose a plea bargain if he thought that was appropriate, and he might, in appropriate cases, say to the prosecutor, ‘You don’t have a case and you should drop it.’ This would be very difficult for the judiciary; it’s not something I come to lightly, but I can’t think of any better solution to this problem.”

The devil is certainly in the details, but Judge Rakoff's idea could have merit, and he deserves credit for creative thinking on a critical problem in criminal justice. He estimates 1-8% of the prison population may be innocent people pressured into guilty pleas. That is upwards of ten thousand people. If leveling the field in plea bargaining could alleviate even a small portion of that, it's worth exploring.

 

 

June 9, 2014 | Permalink | Comments (0)

Friday, June 6, 2014

Briefing International Standards in U.S. Litigation

Guest contributor Connie de la Vega, leading scholar and domestic human rights advocate, shares her insights on litigating human rights in the U.S.:

Since 1986, I have been briefing the international and treaty standards that apply to U.S. cases through amicus curiae briefs filed on behalf of Human Rights Advocates. Despite the fact that the U.S. Constitution provides that treaties are the supreme law of the land, courts’ receptivity to the use of the international standards and treaties has ebbed and flowed. However, even during the ebbs, it is important that the courts be made aware of that body of law. Indeed, sometimes it can be a catalyst for bringing the U.S. in line with more humane practices as has been shown by two extreme sentences that the U.S. has used for juvenile offenders despite the fact that the vast majority of countries do not use them: the death penalty and life without parole (JLWOP). The almost worldwide prohibition of these two sentences played a role in the U.S. Supreme Court holding the death penalty unconstitutional for juvenile offenders in Roper v. Simmons , 543 U.S. 551 (2005) and in beginning the limiting of life without parole sentences in Graham v. Florida, 560 U.S. 48 (2010). A recent report discusses various types of advocacy where the international standards have proven to be useful: Challenging Juvenile Life Without Parole: How Has Human Rights Made A Difference?

While the Court did not refer to the international standards in the more recent case of Miller v. Alabama, 576 U.S. __ (2012), most likely the result of the backlash from some groups against using international law, it is still important that courts be aware of those standards in addressing U.S. law so they can place U.S. and state law in context. Recent cases where these standards have been raised in amicus curiae briefs include:

People v. Davis, 2014Ill. S. Ct. Case No. 115595 (2014). Amici curiae urged the Illinois Supreme Court to hold juvenile life sentences unconstitutional. The brief was filed on behalf of eight organizations and addressed the international and treaty standards relevant to this issue. The Illinois Supreme Court ruled that the U.S. Supreme Court in Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455 (2012) is retroactive and that, “Miller mandates a sentencing range broader than that provided by statute for minors convicted of first degree murder who could otherwise receive only natural life imprisonment.” Thus, Mr. Davis’ sentence was remanded for a new sentencing hearing where all sentences could be considered by the Court.

People v. Moffett (S206771) and People v. Gutierrez(S206365), Amici curiae raised international and treaty law in urging the California Supreme Court to hold that juvenile without parole sentences are unconstitutional. The briefs were filed on behalf of five organizations involved in international law and juvenile justice issues. The California Supreme Court ruled on May 5, 2014 that the State of California’s presumption in favor of a sentence of life without parole for 16 and 17 year olds violates the 8th Amendment of the U.S. Constitution under Miller. The Court went on to rule that Miller requires a trial court to consider the “distinctive attributes of youth” in considering the sentence. The Court also ruled that the recently passed Penal Code § 1170(d) that allows juveniles to be resentenced after 15 years does not prevent the violation since the differences between children and adults should be addressed before a court imposes a sentence of life without parole.

While the rulings were victories for all the defendants, neither Supreme Court refer to international standards in placing limits on the use of JLWOP. Nonetheless, it is important that the courts be able to put their rulings in the context of international law, which specifically prohibits the sentence, and the practice of nations, where no other country imposes this sentence on juveniles.

Amicus curiae briefs can also be filed when petitions are filed before international bodies, as is evidenced in a recent case:

Hill v. USA. Amicus curiae brief filed before the Inter-American Commission on Human Rights (IACHR) in support of a petition filed by a number of juvenile offenders serving life without parole sentences in Michigan. The brief covers international and treaty standards that prohibit the sentence and was filed on behalf of human rights organizations, university centers, and a professor. The IACHR held a hearing on the case in March 2014 and a decision is pending.

 

June 6, 2014 | Permalink | Comments (0)

Thursday, June 5, 2014

Jailing People Subjected to Abuse for Failing to Prosecute—Violating Human Rights to Vindicate Human Rights

By Leigh Goodmark

Last week, Sheila Kimball, of Kennebec County, Maine, spent a night in jail after refusing to testify against her husband in a domestic violence prosecution. Kimball was held in summary contempt by Judge Donald Marden for her failure to respond to the prosecutor’s questions after being arrested and brought to court in her pajamas. This follows the incarceration of Jessica Ruiz, another Kennebec County woman, in September 2013. Ruiz was arrested because prosecutors “believed” she did not intend to testify in a domestic violence proceeding. After spending 17 hours in jail, Ruiz testified at trial. Two women incarcerated within an eight month period because they were not interested—or, in the case of Ruiz, may not have been interested—in engaging with the state to incarcerate their partners. Margo Batsie of the Maine Coalition to End Domestic Violence supported prosecutors’ decisions, stating that holding abusers accountable for their behavior was paramount, apparently regardless of the impact on the people that had been abused.

Over the past forty years, domestic violence law and policy has come to rely disproportionately on state based, carceral responses to intimate partner abuse. The state has increasingly brought its power to bear not only against abusers, but also against their partners, if those partners fail to participate in prosecution. People subjected to abuse may have numerous reasons for not wanting to see their partners prosecuted: religion, economics, immigration status, parenting assistance, community support, and even love. But in most states, policy empowers prosecutors to bring cases without regard to the wishes of the person subjected to abuse. Worse, in jurisdictions like Kennebec, which have strong no drop prosecution policies, prosecutors use the power of the state not only to hold abusers accountable, but also to compel people subjected to abuse to participate in that process and to punish them when they choose not to do so. In a dramatic departure from the empowerment ethos of the early battered women’s movement, which engaged women in determining their own needs, goals, and options, the state has substituted its blanket judgment about the best way to address intimate partner abuse and found that the criminal justice system is the answer. The encroachment on the rights of people subjected to abuse might be easier to justify if there were good evidence that the intervention of the criminal justice system actually deters further abuse; given that no such evidence exist, such policies are deeply problematic.

In Lenahan v. United States, the Inter-American Commission on Human Rights declared that freedom from domestic violence is a fundamental human right. International human rights law requires that states take active steps to prosecute those who commit intimate partner abuse. But there must be a balance that respects the autonomy of people subjected to abuse and allows them to make decisions about whether and how to be involved with those prosecutions. Without such checks, prosecutors are violating the human rights of people subjected to abuse in the name of vindicating those same rights. Incarcerating women subjected to abuse for making decisions about their engagement with the state cannot be what the battered women’s movement intended at its inception. What Sheila Kimball and Jessica Ruiz have learned is that the state is less concerned about their well-being, goals, and desires than it is about prosecuting the men who abused them, regardless of how such prosecutions affect them personally. Kimball, Ruiz, and others like them might think twice about engaging the state again.

June 5, 2014 | Permalink | Comments (0)

Wednesday, June 4, 2014

Gaming at Home, Human Rights Abroad

Human rights games are well-established educational tools.  In fact, current on-line offerings through the UN include games entitled Against All Odds and Darfur is Dying. But as co-editor Lesley Wexler writes, recent advocacy goes farther, urging that commercial video games, reaching a huge number of consumers, comply with human rights norms.  Lesley writes: 

For a long time, the human rights literature regarding video gaming focused on the relationship between of violent video games and unjustified violence. While evidence for the a direct relationship between gaming and violence and its most recent incarnation of the so-called “playstation mentality” in drone warfare is scant at best, interested groups are now turning to video gaming as an educational opportunity to teach and instill respect for international human rights and humanitarian law.  For instance, the ICRC (International Commission of the Red Cross) has called for first person shooter games to include penalties for laws of war and human rights law violations. By way of example, a first person shooter might lose points for violating the Convention against Torture or might lose the support of his allies for violating the Geneva Conventions.

While most of the major video game companies have remained silent on such proposals, others such as Bohemia have already started developing such games as teaching tools for modern militaries. As part of this effort, the ICRC and Bohemia just launched a contest for a virtual military game in which “developers could create a special game module where providing first-aid to a wounded enemy would be rewarded.” While such tools for militaries and the public are still largely in their infancy, I look forward to the empirical assessments of the potentially positive effects of video gaming and whether these differ from the existing conclusions about their negative effects.

 

June 4, 2014 | Permalink | Comments (0)

Tuesday, June 3, 2014

For Better or Worse: SCOTUS Decision in Bond v. U.S. Points to the States

by Risa Kaufman

Yesterday, in Bond v. United States, the Supreme Court left intact Congress’ power to enact legislation implementing international treaties. Debate will certainly continue within academic circles over the scope of Congress’ authority to give domestic effect to ratified treaties, and indeed the federal treaty power more generally. But, for now, the upshot may be that the cloud has lifted on U.S ratification of the Disabilities Convention. And, post-ratification, U.S. human rights advocates should redouble efforts at the state and local level.

At issue in Bond was the federal government’s prosecution of Carol Bond under the Chemical Weapons Convention Implementation Act, which Congress enacted in 1998 to implement an international convention the U.S. ratified a year earlier. When Bond, a microbiologist, learned that her close friend was pregnant, and that Bond’s husband was the father, she spread toxic chemicals on the friend’s car door, mailbox and door knob. The federal government charged her with violating Section 229(a) of the Act, which makes it a federal crime “to develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain, own, possess, or use, or threaten to use, any chemical weapon.”

Noting an ambiguity in the scope of the Act and relying on what it characterizes as the “well –established” principle that courts must find that Congress intended to override the traditional state/federal balance before construing an otherwise ambiguous statute, the Court found no “clear indication” that Congress intended for the Act to cover Bond’s “purely local crime.” (By the Court’s characterization, the federal prosecution involved “an amateur attempt by a jilted wife to injure her husband’s lover, which ended causing only minor thumb burn readily treated by rinsing with water.”) In doing so, the Court avoided ruling on the question of whether the Act itself violated constitutional federalism limits on Congress’ authority to enact legislation implementing a treaty touching on traditionally local concerns.

Aside from spawning a tide of critical blog posts and a generation of student notes, what might be the decision’s direct impact, particularly for U.S. human rights advocates? Perhaps most immediately, the U.S. Senate can move forward with U.S. ratification of the International Convention on the Rights of Persons with Disabilities (CRPD), a human rights treaty modeled primarily on the Americans With Disabilities Act. At the very least, Bond should no longer stand in its way.

The U.S. Senate failed to provide consent to U.S. ratification of the CRPD when it came to a full Senate vote in December 2012. Though sixty-one Senators voted in favor, the treaty did not gain the necessary approval of a 2/3rds majority. The Senate Foreign Relations Committee revisited the treaty at a hearing in November 2013. By odd coincidence, at the same time, across the street, the Supreme Court was holding oral argument in Bond. Naturally, the confluence placed the case at the center of the hearing, with some Senators suggesting that the Senate postpone consideration of the treaty until the Court issued its decision.

Supporters of U.S. ratification of the CRPD have collectively exhaled since the Court issued its decision in Bond. Hours after the decision was released, The Leadership Conference on Civil and Human Rights stated that “The Supreme Court today gave the Senate the green light to proceed with ratification of the Convention on the Rights of People with Disabilities (CRPD).”

But just how does Bond clear the way for the CRPD? Many proponents of the CRPD insist that U.S. ratification does not require implementing legislation, asserting that current law already brings the U.S. into compliance with the treaty. (To be sure, others are concerned that such insistence weakens the domestic impact of human rights treaties, and advocates’ future ability to draw on ratified treaties to strengthen rights protections within the United States.)

So, if the CRPD doesn’t require implementing legislation, what was the hold up? How does Bond clear the way? And, what might Bond mean for the prospects of other human rights treaties awaiting U.S. ratification?

Bond should assuage the concerns of human rights treaty opponents that U.S. ratification will lead to Congress running roughshod over the states in the name of implementation. While Bond may not put to rest entirely the question of the scope of the treaty power, or Congress’ power to enact implementing legislation (though it has been suggested that the question is unlikely to be put so squarely, or neatly, to the Court again anytime soon), Bond should provide some comfort for those concerned about federal overreaching through the treaty power and the Necessary and Proper Clause. The decision affirms the Court’s continued vigilance in preserving the federalism balance and prohibiting federal legislation that infringes on state jurisdictional authority.

Professor Oona Hathaway and colleagues have argued that “structural, political and diplomatic” factors prevent against federal overreaching through the treaty power. These include reservations, understandings, and declarations that the U.S. attaches to the human rights treaties it ratifies, the Constitutional requirement of a 2/3rd majority for Senate advice and consent to ratify a treaty, and the political process more generally. Now add to the list Bond’s requirement of a “clear indication” that Congress intends to override traditional state powers through federal legislation, including in the realm of treaty implementation.

In Bond, the Court sends something of a warning to Congress: “[T]he global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard.” (Opinion at 21.) The Court gave Congress the benefit of the doubt: “There is no reason to suppose that Congress – in implementing the Convention on Chemical Weapons – thought otherwise.” And Congress is on notice not to force the Court’s hand in the future.

All this federalism talk raises reflexive concern among U.S. human rights advocates. We’ve seen this before, in U.S. v. Morrison and other devastating curtailments of federal civil rights protections. Yet advocates can take some consolation that the Court’s resolute policing of Congress’ powers vis a vis the states may, in fact, be what saves U.S. ratification of core human rights treaties. And perhaps it motivates us to redouble our efforts at the state and local level once ratification is achieved. Ultimately, Bond may confirm what Justice Stevens noted in Medellin v. Texas: when it comes to upholding the U.S.’s international treaty commitments, sometimes state and local officials “must shoulder the primary responsibility.” For better or worse.

June 3, 2014 | Permalink | Comments (0)

SCOTUS Decision in Bond v. U.S.

The Supreme Court issued its long-awaited decision in Bond v. U.S. on June 2, 2014.  Briefly, the Court voted 9-0 against the legality of the Government's indictment of Ms. Bond, an angry wife who used chemicals to threaten and harm her erstwhile best friend and husband's paramour. The issue before the Court was whether Congress had the power to enact the underlying criminal statute, designed to deter use of chemical weapons, pursuant to its treaty power.  (The U.S. is a party to the international Convention on Chemical Weapons). In an opinion by Chief Justice Roberts, the majority of the Court did not reach the treaty issue, instead ruling that the statute should be construed narrowly to avoid the constitutional question, i.e., they concluded that Congress did not really intend to address chemical weapons of the type used by Ms. Bond, and that the chemical weapons statute did not therefore support her indictment. Three justices, Justices Scalia, Thomas and Alito, concurred in the judgment, but would have reached the constitutional issue, asserting that the indictment would fail because Congress's treaty power would not extend so far as to support the enactment of the chemical weapons statute. These justices, in separate opinons, directly questioned the scope of the Supreme Court's venerable 1920 decision in Missouri v. Holland, which upheld Congress's statutory regulation of migratory bird hunting as an exercise of its treaty power following a treaty with Great Britain/Canada.

Some immediate reactions to the Bond decision are already posted here, here and here.  The Human Rights at Home blog will be posting thoughts on the decision's implications over the next few days, so stay tuned. 

   

June 3, 2014 | Permalink | Comments (0)

Indiana's Flawed Medicaid Expansion Plan

Co-editor Fran Quigley reports from the front lines of the Medicaid expansion debate in Indiana.  To date, 26 states and D.C. (but not Indiana) have taken advantage of the Affordable Care Act's Medicaid Expansion provisions. The human rights implications of this issue were specifically addressed in the Supreme Court amicus brief of the Leadership Conference on Civil and Human Rights filed in Florida v. HHS.  Focusing on Indiana, Fran writes: 

For some time now, Indiana Governor Mike Pence has been presented with the opportunity to guarantee healthcare coverage to hundreds of thousands of Hoosiers. All he had to do was take advantage of the Affordable Care Act’s federally-funded incentives for Indiana to expand Medicaid.
 For many of our neighbors across the state, this is a life and death decision. Until this week, Pence has chosen the latter. 

A study published in May in the Annals of Internal Medicine reported that the 2006 expansion of health insurance in Massachusetts significantly cut the number of deaths from causes that health care could have remedied. A Harvard Medical School and City University of New York study estimates that as many as 750 Hoosiers will die each year because they do not have access to Medicaid, a number equal to the state’s annual traffic fatalities. 

It is an intuitive point, but one that has never been shown so conclusively: People die for lack of health insurance.

Last week, Governor Pence announced a proposal for Indiana to access Medicaid funding through a modified version of the Healthy Indiana Plan. For advocates from Cover Indiana, it was welcome news. The coalition of health care providers, religious groups, and business and labor organizations has presented Pence with 10,000 petitions in favor of Medicaid expansion and persuaded five Indiana city councils to pass resolutions with the same message. 

“We think it is a shame that we have gone this long without Medicaid expansion in Indiana,” says Alex Slabosky of Cover Indiana. “But this proposal is a very positive development.”

If approved by the federal government, Healthy Indiana Plan 2.0 would potentially cover as many as 350,000 low-income Hoosiers who currently are without health coverage. But it is not a perfect proposal, by any means.

When explaining his reasoning for blocking Medicaid expansion, Pence liked to say he prefers a health insurance system that requires Indiana’s poor to put more “skin in the game.” Pence’s metaphor refers to the Healthy Indiana Plan’s traditional requirement that the state’s low-income residents pay into a special account in order to access care. His new version keeps this requirement in place for some low-income Hoosiers, or replaces it with a co-pay requirement for others. 

But the governor never mentions there is good reason for avoiding a requirement that the poor pay up front for healthcare. Emergencies such as evictions, foreclosures, and criminal victimization, when paired with the no-room-for-error financial situations many Hoosiers face, often preclude low-income families from making payments, even when the payments are small and even when they are for essential items.

That includes health care. Careful studies, and the experiences of those of us who work with low-income families, show that a cash register at the door of the doctor’s office will be a barrier preventing many Hoosiers from getting the care they need. So it is not surprising that every state surrounding Indiana, including those with Republican governors like Pence, have chosen to expand Medicaid in their states. They did so without requiring premiums or co-pays from their poorest residents.

Congressman Andre Carson is among those who insist that following those governors’ lead is still the best approach for Indiana. “I have serious concerns that (the revised Healthy Indiana Plan) is an untested proposal that will still fail to provide critical health coverage to thousands of Hoosiers,” Carson said in a statement.  

But Cover Indiana advocates say that the flawed Pence proposal may be the best chance for low-income uninsured Hoosiers to get the care many of them desperately need. Every day in Indiana, blood pressure prescriptions go unfilled, pap smears are being missed, and dangerous diabetes symptoms are not addressed. All the while, our Governor and Indiana General Assembly leadership have shown no inclination to expand traditional Medicaid, suggesting that this daily suffering could continue for years on end.

“We are sitting here in 2014 without Medicaid expansion in our state,” says Alex Slabosky. “We would like to have a plan with no copayments and no premiums. But this proposal would put us in a far better place than we are now.

“We are moving in the right direction.” 

June 3, 2014 | Permalink | Comments (0)