Wednesday, April 29, 2015
Today's decision in Williams-Yulee v. The Florida Bar was something of a surprise. At issue was Florida's bar on direct solicitation of campaign contributions by judicial candidates, a restriction similar to that adopted by a majority of states. Williams-Yulee, a first-time candidate for judicial office, argued that the ban violated her First Amendment rights. The Florida Bar countered that the restriction was necessary to both the appearance and reality of judicial integrity. Before the Court that decided Citizens United, the answer seemed pre-ordained.
Yet given the issue, the oral argument in January had an unusually personal cast. Justices Sotomayor and Breyer testified to their own experiences of the subtle coercion when asking lawyers "can you please" do something. "'Yes. That's the answer," said Justice Breyer. It's "very, very, very rare," said Justice Sotomayor, that a lawyer turns her down. On the other side, Chief Justice Roberts imagined calling his college classmate and asking for a campaign donation: "No one would say there is a real risk of corruption because he's calling up his old friends," he asserted.
Chief Justice Roberts was a critical vote for the Florida Bar's position, but in this case, the old litigator's adage that you can't predict the result based on the oral argument held true. Chief Justice Roberts wrote today's opinion citing, among other things, the Magna Carta's promise that "to no one will we sell . . . justice." Judicial candidates are different than other candidates, he concluded, and the importance of judicial integrity justifies the Florida Bar's restriction on judicial speech even under strict scrutiny.
One of the many amici participating in the case was the Carter Center (NB. I served as one of the counsel on the Carter Center brief), known worldwide for its monitoring of democratic elections and its activities to promote human rights and the rule of law.
Putting the Florida Bar restrictions into perspective, the Carter Center argued that:
"Neither the importance nor the challenge of securing an effective and independent judiciary is a
uniquely American phenomenon. For decades, international and regional organizations have focused on codifying principles and standards of judicial conduct, designed to improve the confidence of citizens in the tribunals of their nations. These documents make clear that promoting judicial impartiality—and, importantly, the appearance of judicial impartiality—
are core interests of governments."
The Carter Center brief attested to the fact that judicial integrity cannot be taken for granted in the U.S. or anywhere and is, in fact, hard won through mechanisms -- found across nations -- that hold judges to high standards of conduct for the public good. While the U.S. continues to be exceptional in conducting judicial elections at the state level, today's decision recognizes that we share with other nations the imperative to ensure public confidence in the administration of justice, and that modest limitations on judicial campaign solicitations are a small price to pay for preserving that confidence.
Tuesday, April 28, 2015
by Noah Novogrodsky, University of Wyoming College of Law, Guest Blogger
Today's oral argument in Obergefell was a strong testament to law's inevitable migration across national boundaries.
I was one of the authors of a comparative and foreign law professors amicus brief in Obergefell. The brief was filed in support of petitioners by Professor Harold Hongju Koh, Thomas Buergenthal, Sarah H. Cleveland, Laurence R. Helfer, Ryan Goodman and Sujit Choudhry. We argued that developments in other liberal democracies confirm that legal guarantees of due process and equal protection require full marriage equality. Specifically, we noted that the judicial opinions and legislative developments in a host of other states rely on principles of liberty, equality and human dignity and that the U.S. Supreme Court can and should benefit from those experiences. We also reminded the Court of the influence its decision may have on the rest of the world.
Our brief cites Fourie, the South African Supreme Court of Appeal decision which evaluated the dignitary effects of excluding same-sex couples from the institution of civil marriage and held that:
"More deeply, the exclusionary definition of marriage injures gays and lesbians because it implies a judgment on them. It suggests not only their loving relationships and commitments and loving bonds are inferior, but that they themselves can never be fully part of the community of moral equals that the [South African] Constitution promises to create for all."
To demonstrate the accelerating trend of equal marriage in constitutional democracies, we referenced Conservative British cabinet member Maria Miller’s introductory remarks as she proposed the same-sex marriage bill for England and Wales in the House of Commons:
“Marriage is not static; it has evolved and parliament has chosen to act over centuries to make it fairer and more equal. We now face another such moment – another such chance in this new century.”
Today’s argument addressed the relevance of foreign and comparative exemplars in two ways. First, Justices Alito, Scalia and Sotomayor asked what the implications were for this case that the definition of marriage as between men and women had been fixed for ‘millennia’ until the Netherlands legalized same-sex marriage in 2001. Petitioners’ counsel acknowledged that same-sex marriage was legal in 17 or 18 countries. (The difference in the number of foreign states that allow equal marriage derives from how one counts England, Scotland, Wales…) Petitioners also noted the changing definition of marriage over time by reference to the American and European understandings of coverture, impliedly drawing a circle of relevant comparator states.
Second, just as Canadian courts did in Halpern and EGALE, and the South African courts did in Fourie, the Court grappled with the question of whether denying same-sex couples entry to the institution of marriage demeans their dignity. Respondents’ counsel asserted that purpose of marriage is primarily procreative and that it was never intended to be “dignity bestowing.” Justice Kennedy responded with the comment that “I don’t understand this 'not dignity bestowing.' I thought that was the whole purpose of marriage. It bestows dignity on both the man and woman in a traditional marriage”
Several of the initial questions asked during this morning's Supreme Court argument in Obergefell v. Hodges asked how many different societies and cultures had excluded gay couples from marriage -- with conservative justices making the point that no society formally recognized same-sex marriage until the Netherlands took that step in 2001. Many have commented on how quickly the issue of marriage equality in the U.S. has shifted from a quixotic vision to a serious possibility. But as the justices' questions highlight, that shift is not unique to the United States, as several amicus before the Supreme Court have pointed out.
As the gay rights movement has gathered strength in the past two-plus decades, international strategic coordination of local efforts has grown. A recent book by anthropologist and lawyer Ryan Thoreson, Transnational LGBT Activism: Working for Sexual Rights Worldwide, mines this territory, and provides important perspectives on the ways in which transnational human rights movements reframe and construct legal rights. The publisher provides the following description of Thoreson's work:
"The International Gay and Lesbian Human Rights Commission (IGLHRC) was founded in 1990 as the first NGO devoted to advancing LGBT human rights worldwide. How, this book asks, is that mission translated into practice? What do transnational LGBT human rights advocates do on a day-to-day basis and for whom? Understanding LGBT human rights claims is impossible, Ryan R. Thoreson contends, without knowing the answers to these questions.
In Transnational LGBT Activism, Thoreson argues that the idea of LGBT human rights is not predetermined but instead is defined by international activists who establish what and who qualifies for protection. He shows how IGLHRC formed and evolved, who is engaged in this work, how they conceptualize LGBT human rights, and how they have institutionalized their views at the United Nations and elsewhere. After a full year of in-depth research in New York City and Cape Town, South Africa, Thoreson is able to reconstruct IGLHRC’s early campaigns and highlight decisive shifts in the organization’s work from its founding to the present day.
Using a number of high-profile campaigns for illustration, he offers insight into why activists have framed particular demands in specific ways and how intergovernmental advocacy shapes the claims that activists ultimately make. The result is a uniquely balanced, empirical response to previous impressionistic and reductive critiques of Western human rights activists—and a clarifying perspective on the nature and practice of global human rights advocacy."
NB: Check back here throughout the day for updates and perspectives on human rights and the Obergefell Supreme Court arguments.
Monday, April 27, 2015
Professors William Armaline, Davita Glasberg, and Bandana Pukayastha recently published The Human Rights Enterprise: Political Sociology, State Power and Social Movements (Wiley 2015). While it addresses human rights broadly, many of the examples are drawn from the United States, including consideration of Guantanamo, drone strikes, and the Occupy Movement. Very favorably reviewed as a teaching text in the LSE Review of Books, the publisher's description is here:
"Why do powerful states like the U.S., U.K., China, and Russia repeatedly fail to meet their international legal obligations as defined by human rights instruments? How does global capitalism affect states’ ability to implement human rights, particularly in the context of global recession, state austerity, perpetual war, and environmental crisis? How are political and civil rights undermined as part of moves to impose security and surveillance regimes?
This book presents a framework for understanding human rights as a terrain of struggle over power between states, private interests, and organized, “bottom-up” social movements. The authors develop a critical sociology of human rights focusing on the concept of the "human rights enterprise": the process through which rights are defined and realized. While states are designated arbiters of human rights according to human rights instruments, they do not exist in a vacuum. Political sociology helps us to understand how global neoliberalism and powerful non-governmental actors (particularly economic actors such as corporations and financial institutions) deeply affect states’ ability and likelihood to enforce human rights standards.
This book offers keen insights for understanding rights claims, and the institutionalization of, access to, and restrictions on human rights. It will be invaluable to human rights advocates, and undergraduate and graduate students across the social sciences."
Ed.'s Note: On Tuesday, April 28, the U.S. Supreme Court will hear argument in Obergefell v. Hodges, et al., the four consolidated cases that challenge state-level same-sex marriage bans under the federal constitution's equal protection clause as well as state failure to recognize such marriages performed in other states. Several amicus briefs presented the Court with information concerning relevant comparative and human rights law on this issue. Check back here on Tuesday when, following the oral argument, we will feature commentary from Professor Noah Novogrodsky, who served as co-counsel on the amicus brief submitted on behalf of Foreign and Comparative Law Experts in support of petitioners.
Friday, April 24, 2015
With the revelation that a U.S. military drone accidentally killed two innocent hostages in January of this year, the efficacy of drones is in the news and above the fold once again. Many advocacy organizations have issued statements about the human rights issues raised by drones, but law teachers may want to find more in-depth analytical materials to use in class. Here are three sources that would serve as illuminating law school readings.
First, the Columbia Human Rights Institute and the Center for Civilians in Conflict are co-authors of the 2012 publication: The Civilian Impact of Drones: Unexamined Costs, Unanswered Questions. The 83-page report was the first systematic study of the US government’s covert drone program and its objective was to critically assess US government procedures and standards for ensuring civilian protection and responding to civilian harm from drone strikes.
Second, Professor Sarah Knuckey of Columbia Law School is the editor of the book Drones and Targeted Killings: Ethics, Law, and Politics, newly available in paperback. According to the publisher's blurb, the book is a unique collection of sources that reveal the dilemmas, concerns, and issues surrounding the use of drone strikes and targeted killings. The book includes primary sources as well as analysis, and an introductory essay offers background and perspective on the issues. The book's four sections address some of the key elements of the debate: Are drone strikes and targeted killings effective? Are they ethical? Are the legal? Is there adequate transparency and government accountability?
Finally, a different angle on drones is raised by corporate social responsibility lawyers at Foley Hoag. In Flying High: The Human Rights Implications of Investing in Drones, the Foley legal team reminds investors that the benign uses of drones (for example, delivering pizza) cannot eclipse potentially more troubling uses in military contexts. Analyzing statements from NGOs and the United Nations, as well as the implications of the U.N. Guiding Principles on Business and Human Rights, the Foley lawyers conclude that "[u]timately, drones have potential to provide unique and valuable services for military and civilian purposes alike. Awareness of the human rights implications, in addition to potential regulatory and reputational concerns, must come first."
Thursday, April 23, 2015
From time to time here at Human Rights at Home blog, we've linked to interesting stories on the UK Human Rights Blog, an excellent source of up-to-date UK-focused legal analysis founded in 2010 by barrister Adam Wagner. Still, as good as UK Human Rights blog is, it's just another legal blog.
Now, that same Adam Wagner has launched a new site, RightsInfo.org, that aims to "radically change the way that human rights are communicated, and have lots of fun doing it."
At a time when the conservative U.K. government is threatening to scrap the nation's human rights law and withdraw from the European Court of Human Rights, it's tempting for lawyers to throw more legal arguments into the fray. But RightsInfo resists that temptation, instead providing "clear, reliable and beautiful human rights information" designed for ordinary (i.e., "non-lawyer") people. And it is beautiful, with fun graphics, compelling stories and lots of the sorts of "top 7" and "5 best" lists that readers love.
Making human rights beautiful, readable, fun and useful? I think Adam Wagner and his brilliant creative team are on to something
Wednesday, April 22, 2015
Last week, Martha Davis reported on reparations made by the city of Chicago for human rights abuses resulting from police torture that occurred in the 70's and 80's. The torture occurred under the command of Jon Burge. Burge was fired in 1993. Since then Chicago has paid out $85 million in reparations.
On April 15th, the New York Times reported that Chicago has made a $5,000,000.00 settlement with the family of black teen who was shot and killed by Chicago police officers last fall. Laquan McDonald was only seventeen when a single police officer shot him sixteen times. Laquan's weapon, according to police was a three inch knife. In settling the case, the city was aware of a video made by the mounted police car camera. The Department of Justice is investigating McDonald's death.
In the attention brought by Ferguson, and the frustrating attempts by citizens to seek acknowledgment by municipalities that human rights violations occurred, it is hopeful that Chicago has stepped up and is resolving old and new claims without the political sleight of hand that we have seen in other cases.
We know the power of apology. What is not discussed as often is the power of a swift acknowledgement. In contrast to the three or four decades it has taken Chicago to resolve claims of Burge's victims, the family of Mr. McDonald received swift resolution. A speedy acknowledgment spares the survivors years of additional anguish. While lawyers often advise not admitting liability, when human rights violations are undisputed, swift resolution is not only humane, but is its own human right.
Tuesday, April 21, 2015
A growing number of advocates are focusing on the centrality of official corruption as a barrier to the realization of human rights. In 2009, Transparency International published a comprehensive look at the ways in which corruption threatened human rights implementation. The recent UN Congress on Crime and Criminal Justice concluded last week with a session highlighting the issue. In January 2015, Center for Business Ethics and Corporate Governance co-founder Matthew Murray and University of Richmond law professor Andrew Spalding called for recognition of a human right to be free of official corruption. As they argue, "[g]overnments and international bodies have widely adopted principles, laws and tools for countering corruption both domestically and transnationally. Still, the anti-corruption architecture is not working as planned whether to assure effective enforcement, induce voluntary changes in official behavior, or protect the victims." Murray and Spalding assert that "[i]n order to place anti-corruption norms upon a stronger conceptual foundation, prioritize anti-corruption enforcement as a matter of policy, and focus that enforcement on improving the lives of corruption’s victims," freedom from official corruption should be acknowledged as a "fundamental and inalienable human right."
While this discussion often arises in the context of nation states where the rule of law has less firm footing, it is clear that a human right to be free of official corruption would have considerable relevance in the United States, where it could serve to add urgency to efforts to address local and federal corrupt practices.
Monday, April 20, 2015
Today, Monday April 20, is Patriot's Day in Massachusetts. We commemorate the men and women who contributed to the beginning of this country's war of revolution. Today is also the second anniversary of the Boston Marathon Bombing. The bombing was a traumatic event. I am mindful of those world wide who are daily traumatized by acts of war and their residual consequences. Thousands of civilians have died in the middle east during the last decade. Citizens of war torn countries around the globe live with renewed, daily trauma.
What surprises me is that neither 9/11 or the Boston bombing seems to have increased American empathy for civilians who are victimized by war and the warriors. I am left to wonder what it will take to mobilize Americans to raise concerns about the deaths of civilians as collateral damage. As one who remembers the social activity of the 70's, I am surprised at the lack of extensive public debate in this country on the merits of the wars we are in and the impact of those wars on civilians.
Who is a patriot in this era? Perhaps the debate could start there.
Friday, April 17, 2015
This week, the South African Government announced that it is awarding the Order of the Companions of O.R. Tambo to Professor McDougall. The Order is granted by the president of South Africa to foreign citizens who have promoted South African interests and aspirations through cooperation, solidarity and support. McDougall will be named a Grand Companion of O.R. Tambo (silver). Past American recipients of the award include Andrew Young, Reverend Jesse Jackson, and Randall Robinson. The Letter of Commendation lauds McDougall "[f]or her excellent contribution in the fight against apartheid and injustices meted out on the black majority," and cites her work throughout the 1980s and 1990s to engage the international community in ending apartheid.
One component of the award is a ceremonial walking stick incorporating an entwined mole snake. In African mythology, the mole snake visits babies in a spirit of benevolence. The snake comes as a friend and protector to prepare the baby for a successful and safe adult life. The mole snake can be aggressive and can give painful bites but is non-venomous.
Professor McDougall continues her path-breaking human rights work in several current projects, domestic as well as international. However, this significant award is a timely and well-deserved recognition of the energy and "bite" that she brought to her innovative work to end apartheid in South Africa, and that continues to infuse her human rights advocacy.
The Medal ceremony will take place in Pretoria on April 27th, the date on which South Africa's first democratic elections were held.
Thursday, April 16, 2015
Sometimes human rights does come home -- this time, in Chicago. Employing international as well as domestic mechanisms over a period of years, Chicago activists have come one step closer to resolving claims of police torture. For the decades between 1972 to 1991, the Chicago police, under police Commander Jon Burge, regularly used torture to induce false confessions that put innocent African American men in prison. Patterns of disparate targeting and surveillance of African American youth have continued to today. Last fall, We Charge Genocide, a group of Chicago anti-torture activists, filed a Shadow Report with the UN Committee Against Torture to bring international attention to the issue. In response, the Committee's final report demanded that the U.S. and local government take specific action:
"The Committee is particularly concerned at the reported current police violence in Chicago, especially against African-American and Latino young people who are allegedly being consistently profiled, harassed and subjected to excessive force by Chicago Police Department (CPD) officers. It also expresses its deep concern at the frequent and recurrent police shootings or fatal pursuits of unarmed black individuals. In this regard, the Committee notes the alleged difficulties to hold police officers and their employers accountable for abuses. While noting the information provided by the delegation that over the past five years 20 investigations were opened into allegations of systematic police department violations, and over 330 police officers were criminally prosecuted, the Committee regrets the lack of statistical data available on allegations of police brutality and the lack of information on the result of the investigations undertaken in respect of those allegations. With regard to the acts of torture committed by CPD Commander Jon Burge and others under his command between 1972 and 1991, the Committee notes the information provided by the State party that a federal rights investigation did not develop sufficient evidence to prove beyond a reasonable doubt that prosecutable constitutional violations occurred, However, it remains concerned that, despite the fact that Jon Burge was convicted for perjury and obstruction of justice, no Chicago police officer has been convicted for these acts of torture for reasons including the statute of limitations expiring. While noting that several victims were ultimately exonerated of the underlying crimes, the vast majority of those tortured –most of them African Americans–, have received no compensation for the extensive injuries suffered (arts. 11, 12, 13, 14 and 16).
The State party should:
(a) Ensure that all instances of police brutality and excessive use of force by law enforcement officers are investigated promptly, effectively and impartially by an independent mechanism with no institutional or hierarchical connection between the investigators and the alleged perpetrators;
(b) Prosecute persons suspected of torture or ill-treatment and, if found guilty, ensure that they are punished in accordance with the gravity of their acts;
(c) Provide effective remedies and rehabilitation to the victims;
(d) Provide redress for CPD torture survivors by supporting the passage of the Ordinance entitled Reparations for the Chicago Police Torture Survivors."
The proposed partial settlement of these claims reported in today's news acknowledges that these acts constituted torture, and goes part way toward responding to the concerns articulated by the UN Committee.
A hat tip to Eric Tars for alerting us to this developing U.S. human rights story.
Wednesday, April 15, 2015
In advance of the second Universal Periodic Review (UPR) of the U.S. next month, human rights advocates have been busy prepping for more than a year to try to get their issues highlighted in the U.S. report and in the recommendations which will be made by other countries to the U.S. Last month Risa Kaufman highlighted the U.S. report and some of the activities organized by civil society, she also shared some great thoughts last fall on why U.S. advocates should get involved in this second UPR. I want to give you an update on the “diplomacy dialogues” being organized between U.S. human rights advocates and diplomats this spring, and tell you why you should attend one of the last two being held this week in Washington, D.C. and New York.
The diplomacy dialogues aim to provide an opportunity for U.S. human rights advocates to meet with diplomats from countries that are interested in making recommendations to the U.S. during the UPR. During these meetings diplomats hear directly from U.S. human rights advocates about their top priorities and concerns. Diplomats are encouraged to have their U.N. missions ask questions and make recommendations during the UPR process based on the information that they receive during the meetings. These dialogues also provide a terrific opportunity for U.S. advocates to meeting informally with diplomats to find out what their specific interests are and to exchange contact information to later follow-up with draft language for targeted questions and recommendations.
In October 2010, the first diplomacy dialogue of this kind was organized by the U.S. Human Rights Network and the Center for Human Rights & Humanitarian Law at American University Washington College of Law in advance of the first U.S. UPR. The small meeting was held here in Washington, D.C., and issues such as housing, criminal justice, national security and racial discrimination were covered by a handful of U.S. human rights advocates.
The diplomacy dialogue idea was revived and expanded in advance of the second UPR this year. A total of five diplomacy dialogues have been planned in New York and Washington, D.C. by the U.S. Human Rights Network and partners. The first dialogue was held on February 20, 2015, at Howard University Law School in Washington, D.C. Diplomats from the Netherlands, Brazil, Australia, Vietnam, Norway, Malaysia, Belgium, Poland, Uruguay, Mexico, Spain and Hungary attended the meeting and dozens of human rights advocates had the opportunity to make presentations and also informally meet with the diplomats. On March 25, 2015, another meeting was held in Washington, D.C., this time at the University of the District of Columbia School of Law. Diplomats from Spain, Italy, the Netherlands, Burkina Faso and Mexico attended that meeting and approximately ten presentations were made by U.S. advocates. Some advocates, who had reached out to specific embassies in advance encouraging attendance, were able to have extended conversations with diplomats and make targeted requests for questions and recommendations during that meeting. On March 27, 2015, another diplomacy dialogue was held at the U.N. Church Center in New York. Diplomats from Bangladesh, Belarus, Belgium, Canada, Chile, Denmark, Hungary, Japan, Lesotho, Libya, Micronesia, Paraguay, and Seychelles attended that meeting and similar presentations were made by U.S. advocates.
This week, two additional diplomacy dialogues will be held. The first will be held on April 15 from 10 am to 1 pm at the University of the District of Columbia School of Law. The second will be held on April 17 from 9:30am to 1:30pm at the Roosevelt House Public Policy Institute at Hunter College in New York.
Please join us for these last two diplomacy dialogues and bring along your students to witness and participate in these fascinating conversations. These are likely the last public opportunities to meet with diplomats here in the U.S. in advance of the May UPR and U.N. missions will be hungry for ideas for questions and recommendations as they plan their trips to Geneva.
Tuesday, April 14, 2015
On March 17 of this year, Florida resident Michael Bigwood drunkenly pounded on his ex-wife’s door and demanded to speak with her, in violation of a domestic violence protective order. On June 7 of last year,Daniel Diaz Deleon fired six gunshots into the walls of his Denver, Colorado home while his wife and children cowered in the bathroom. This past November, George Holcombe threatened to kill his wife in front of their child and two police officers from the Philadelphia police force.
These three men have something in common other than committing acts of domestic violence: all were active duty police officers at the time they committed their crimes.
Police officers are trained how to intimidate and interrogate suspects, conduct surveillance, find people who don’t want to be found, and use force without causing serious injury — all valuable and important skills when used to protect the public. But when used against an intimate partner, such efforts can be devastating. Studies and various academic papers dating as far back as 1991 and continuing through 2006 suggest that police officers commit intimate partner violence two to four times more often than the general population.
This has some stark implications for victims, even beyond the initial abuse they suffer. For one thing, in a society in which the primary response to domestic violence is to call 911 and proceed through the criminal legal system with cops acting as the go-betweens, the partners of police officers often have nowhere to turn when they are victims of domestic violence. Police officers know the locations of domestic violence shelters and often have collaborative relationships with the staff, which means that the partners of police officers suffering from intimate violence don’t see women’s shelters as viable options.
Officers can also appeal to the “blue wall of silence” to protect fellow officers from intervention in domestic violence situations. Few police departments, in fact, have specific policies for responding to intimate partner abuse perpetrated by one of their own. A study by Kimberly Lonsway in 2006 found that only 29% of police departments had any policy at all, despite the efforts of the International Association of Chiefs of Police, which, in July 2003, promulgated a model policy that adopts a “zero tolerance” stance on officer-involved intimate partner abuse and sets forth procedures for prevention and training, early warning and intervention, incident response, victim safety and protection, and post-incident administrative and criminal decisions.
There is a significant overlap between police officers who commit intimate partner abuse and officers who commit other forms of violence.In their study of media reports of officer-involved domestic violence between 2005 and 2007, officer-turned-academic Philip Stinson and professor John Liederbach found that almost 22% of the officers accused of domestic violence had also been named as defendants in federal civil rights police misconduct claims.
This is not wholly surprising: Officer-involved domestic abuse arises, in part, out of the hyper-masculinized world of policing, which often not only tolerates, but encourages, the kinds of attitudes and behaviors that undergird intimate partner violence. From the minute they enter the police academy, even when the training is facially gender neutral, police officers are expected to adhere to a form of masculinity that devalues and objectifies women. In their 2002 study of one law enforcement training academy, sociologists Anastasia Prokos and Irina Padavic found that male recruits at this academy regularly belittled and objectified women, adopting the phrase “There outghtta be a law against bitches” as their mantra when joking about female police recruits and women generally.
Male recruits at this academy also downplayed the seriousness of violence against women, ignoring the content of a domestic violence training film in order to rate the attractiveness of the actresses playing roles in that film. (This type of verbal degradation can continue even after officers leave the academy; criminologist Susan Miller, in her 1999 book “Gender and Community Policing: Walking the Talk,” describes how, in a progressive, diverse law enforcement agency, female officers were “still privately classified as ‘bitch,’ ‘whore,’ ‘dyke,’ or ‘prude,’ and never seen as just another officer.”)
Despite the high rates of intimate partner abuse by police officers, incidents of officer-involved abuse are treated as isolated events, rather than part of a systemic problem. Every day, one can find individual news stories about cops who are abusive, but policy makers and domestic violence advocates generally don’t explain how police culture creates an atmosphere in which abuse flourishes. Considering the resounding silence from policymakers, and the lack of any outcry about the fact that most law enforcement agencies don’t have any policy, officers are largely able to act with impunity because of their centrality in the legal and policy solutions to intimate partner abuse in the United States.
Since 1984, federal policy and funding have prioritized law enforcement responses to domestic violence over other types of support. For example, $290 million dollars was allocated in the 2013 reauthorization of theViolence Against Women Act (VAWA) to criminal justice initiatives, versus about $40 million that was set aside for transitional housing, even though housing is regularly cited as the top need by people who have been abused. And because the Violence Against Women Act disproportionately funds law enforcement and incentivizes close collaboration between law enforcement and the non-profit organizations that serve people subjected to abuse, addressing the problem of intimate partner abuse by law enforcement officers could jeopardize the relationships police and anti-violence advocates have developed. (Illuminating the problem also threatens significant funding sources for both non-profits and law enforcement, calling into question the wisdom of continuing to rely on law enforcement as the primary means of addressing domestic violence in the United States.)
The state has a serious stake in this conversation, not only because it trains and arms abusers, but because it depends upon these same abusers to enforce the very laws that they are violating in their own relationships. (There is a growing conversation about decriminalization, but since we can’t get policymakers and practitioners to even acknowledge the problem, finding alternatives isn’t really on the radar.) And without fundamentally changing the cultural context within which police officers do their jobs — environments in which violence against women or against those who are feminized is both tolerated and used to assert one’s own masculinity— intimate partner abuse among officers is unlikely to decrease.
Editor's note This post first appeared on fusion.net
Monday, April 13, 2015
By Cindy Soohoo and J.M.Kirby
After an almost two-year legal battle, this February, Phoenix prosecutors dropped criminal charges against activist Monica Jones, a transgender woman of color. Jones had been arrested and convicted of violating a prohibition against “manifest[ing] an intent to commit or solicit an act of prostitution.” The statute criminalizes such behavior as engaging passersby in conversation, waving at cars, or making “any other bodily gesture.” An appellate court reversed Jones’ conviction on a technicality and ordered a retrial.
As an ardent transgender rights and sex worker rights activist, Jones noted that while the prosecutors’ decision to drop the charges was positive, it denied her the opportunity to challenge the constitutionality of the statute. She stated, “it is a small win in our larger fight for justice. There are so many trans women and cisgender women who might be charged under this law in Phoenix and similar laws across the country.”
Jones’ case illustrates the phenomenon that human rights activists call “walking while trans.” This describes the rampant and widespread police profiling of transgender women of color as sex workers. Jones joined activists in Geneva to raise this issue before the U.N. in advance of the U.S.’s upcoming Universal Periodic Review. Speaking to the ways that police use anti-sex work laws as a tool to harass transgender people of color, she said, “as long as the police can target my community using these anti-sex-work laws, we will never be safe from violence, including the violence of incarceration.”
Community and human rights groups have documented how a combination of discriminatory police practices and vague and overbroad statutes have led to the harassment and criminalization of transgender and gender non-conforming communities. In 2005, an Amnesty International report found "a strong pattern of police unfairly profiling transgender women as sex workers." Reports and testimony from groups like Make the Road in Queens, NY and LGBTQ youth group BreakOUT! in New Orleans show that transgender women of color continue to be subject to police violence, including arbitrary arrest, and police profiling. A 2013 study by the National Coalition of Anti-Violence Programs (NCAVP) found that transgender people are seven times more likely to experience physical police violence than cisgender people and that among the transgender community, people of color are more than twice as likely to face police violence.
On Wednesday, April 15 at 6 pm, CUNY Law School’s NLG and OUTLAWS are hosting a panel and workshop that will bring together transgender rights activists and the legal community to learn about and develop strategies to challenge the criminalization and discriminatory police practices targeting transgender women of color in New York City. Scheduled speakers are:
Emma Caterine from Red Umbrella Project
LaLa Zannell from Anti-Violence Project
Olympia Perez from BlackTransMedia
Monica Jones from Sex Workers Outreach Project--Phoenix
Aisha Lewis-McCoy, Criminal Defense Practice, The Legal Aid Society
Lynly Egyes from the Sex Workers Project at Urban Justice Center
The event is free with Spanish translation and light food, but RSVP is required: http://bit.ly/19RdXdk
Friday, April 10, 2015
Orange Is The New Black's Sophia (played by LaVerne Cox) has access to hormone therapy and is assigned to a woman's prison. Reality for most transgender prisoners is quite different. For prisoners who have not had male to female surgery, chances are that they will be assigned to a male prison where their risk of violent attacks is heightened. The National Center for Transgender Equality reports that women in male prisons are thirteen times more likely to be sexually assaulted. A frequently cited California study reports that 59% of transgender incarcerated women report at least one assault. The federal Bureau of Justice Statistics reports that 40% of transgender prisoners have been sexually assaulted.
Ashley Diamond is one such prisoner. She had taken hormones for 17 years prior to entering prison in Georgia. She was nonetheless assigned to a male prison where she was promptly denied all hormone therapy because the admitting prison officials failed to note her transgender status on her intake forms. Many prisons follow a "freeze frame" policy. That is, whatever treatment the transgender prisoner was receiving at the time of incarceration would determine the level of treatment to be provided during the term of incarceration. Ashley Diamond, represented by the Southern Poverty Law Center, is suing the Georgia Prison system seeking appropriate treatment for herself as well as a change in prison policy. The Justice Department supports her lawsuit and has intervened. The Obama administration, in settlement of a lawsuit, ended the freeze frame policy in federal prisons. According to the New York Times article, the administration announced that "hormone therapy to be necessary medical care, saying Georgia, and other states, must treat “gender dysphoria” like any other health condition and provide 'individual assessment and care'."
Ms. Diamond has suffered sexual assaults and sexual harassment since her incarceration. May her bravery in filing suit result in the restoration of proper treatment.
Thursday, April 9, 2015
Local human rights declarations appear to be trickling up to the federal level. A post earlier this week reported on the latest round of local human rights resolutions related to domestic violence, with Ithaca becoming the 23rd U.S. city to declare freedom from domestic violence to be a fundamental human right. These efforts join the ranks of local human rights resolutions and declarations related to other domestic issues, including those declaring housing to be a human right.
Recently, human rights language has begun to appear in Presidential proclamations, as well. Two examples surfaced just this month. In proclaiming April to be Child Abuse Prevention Month, President Obama states, “we reaffirm the fundamental human rights of all children to live free from violence and abuse.” The Presidential Proclamation declaring April to be National Sexual Assault Awareness and Prevention Month recognizes the fundamental human right to be free from sexual assault and domestic violence.
Add these new examples to previous Presidential proclamations recognizing the relevance of human rights in the domestic context. As reported here, in September 2014, on the 20th anniversary of the Violence Against Women Act, President Obama signed a Presidential proclamation affirming “the basic human right to be free from violence and abuse." The following month, the President included a similar statement in proclaiming October to be National Domestic Violence Awareness Month.
The federal government has recently acknowledged the relevance of human rights in other domestic policy contexts, too. For example, on its website, the U.S. Interagency Council on Homelessness recognizes the human right to housing, noting that it “means more than protecting people from discrimination; it means ensuring that all Americans have appropriate levels of housing assistance.”
Can advocates working at the local level take at least partial credit for the federal government’s adoption of such human rights language? And, more importantly, what impact might this language have?
For years, human rights scholars including Judith Resnik, Catherine Powell, and Martha Davis have articulated the importance of state and local recognition and implementation of human rights as a means of influencing and contributing to national policy, including human rights compliance, and to integration of human rights norms at the national level, more generally.
For sure, the inclusion of human rights language in Presidential proclamations and other statements by the federal government in contexts where localities have similarly proclaimed the importance of human rights is promising. At the very least, such statements indicate an emerging acceptance of a human rights framework, including the recognition that every level of government has the obligation to promote and protect the dignity and equality of all people.
Thus, the “trickle up” is encouraging.
And perhaps human rights will “trickle in,” as well. Ultimately, such language will be meaningful only if the result is a fuller integration of human rights principles at the policy level. Here, too, the federal government might do well to look to (and, indeed, support) growing examples of robust state and local human rights implementation.
Wednesday, April 8, 2015
The gap between the haves and the have-nots in the U.S. just keeps growing, accelerated by local and national policies that deny access to basic human needs. Last fall, Detroit, Michigan announced water shutoffs for thousands of individuals and families who could not keep up with their bills. The federal court handling the city's bankruptcy proceeding upheld the process, dismissing advocates' claims that human rights to water and sanitation should be taken into account. Now, Baltimore, Maryland has followed Detroit's lead, issuing termination notices to more than 23,000 households with a 10 day turnaround before shutoffs begin. Some activists have taken to the streets -- and Baltimore has a relatively robust grassroots human rights movement -- and to the op ed pages, but so far, the city has dismissed their pleas for a more humane process.
Meanwhile, a crowdsourcing effort is trying to take up the slack and make sure that families and individuals have the access to life-saving water and sanitation that they need. Kudos to the "1000 points of light" who are leading this important humanitarian effort, but it cannot substitute for humane municipal policies.
Tuesday, April 7, 2015
Kathryn Libal and Scott Harding, both professors of community organization at the University of Connecticut, have published a new social work text titled Human Rights-Based Community Practice in the U.S. The book's forward provocatively argues that social workers should reframe community-based practices away from need or charity frames and instead around human rights norms as a way to better respond to community needs and avoid paternalistic interventions. The book features extensive U.S. cases studies, including in-depth examinations of the right to health, the right to housing, the right to food, and the right to water.
Does the publication of this new social work text in early 2015, alongside the fall 2014 publication of the first-of-its-kind law school text Human Rights Advocacy in the United States (full disclosure, I'm a co-author), indicate that the U.S. human rights movement has reached a new milestone in terms of its place in professional education? While some earlier, well-established texts such as International Human Rights (Alston, et al.) and Social Work and Human Rights (Reichert) also include treatment of U.S. human rights, the more recent texts aim at a more exhaustive and focused coverage. Hopefully these new teaching texts will contribute to driving the domestic discussion and, over time, influencing the academic canon toward greater recognition of the human rights challenges within the U.S.
Monday, April 6, 2015
As reported on Brenden Kelsey McKim's Post, two more localities have declared freedom from domestic violence to be a fundamental human right. The city of Ithaca became the 23rd city to do so when it passed its resolution on March 4 of this year. The city joins Tompkins County, New York in supporting human rights advocates. Since November 2014, five NY localities have joined in passing the human rights resolutions.
According to the McKim post, students with Cornell Law School’s Global Gender Justice Clinic drafted the City of Ithaca resolution, as well as five other similar resolutions that have been passed by local governments in Tompkins County since Nov. 2014.
The Clinic partnered with Cornell Law School’s Avon Global Center for Women and Justice and the Advocacy Center of Tompkins County, provider of domestic violence education and survivor support services, to draft and propose the resolutions.
“This resolution really is part of a national movement,” Alexandra Kitson, Cornell law student and member of the Clinic, said. “There are cities and counties all across the country that passed similar resolutions, and we were really proud that Tompkins County was the first rural community to [do so].”
Friday, April 3, 2015
For years, advocates supporting a U.S. civil right to counsel have argued that international human rights law provides important support for their position. As momentum for a civil right to counsel grows, the human rights framework is now, in some quarters, an important reference point. A hat tip to John Pollock of the Public Justice Center for sharing the following Editorial, which begins from the premise that lack of access to civil counsel when important needs are at stake violates basic human rights. And kudos to incoming Connecticut Bar President William Clendenen for championing this issue.
Conn. Should Ensure Right to Counsel in Civil Cases
The Connecticut Law Tribune March 31, 2015 |
The Universal Declaration of Human Rights has been interpreted to ensure a right to counsel in appropriate civil cases in which basic human rights are at stake. For many years every member country of the European Union has afforded a right to counsel in such civil cases, and the European Court of Human Rights has enforced that right. In contrast, the United States has been ranked near the bottom in assuring legal assistance to low-income individuals in civil matters compared with similarly situated countries in the World Justice Project's Rule of Law Index.
In a recent two-part article in the Connecticut Lawyer magazine, Connecticut Bar Association president-elect William Clendenen argued persuasively that Connecticut should follow suit and provide a civil right to counsel for the state's economically disadvantaged. Citing statistics that document the unavailability of legal services in civil legal matters to many low-income individuals in Connecticut—notwithstanding the herculean efforts of the state's underfunded legal services providers—he advocated that the CBA support the enactment of a Connecticut version of the American Bar Association Model Access Act.
The act was proposed in 2010 by the ABA's Working Group on Civil Right to Counsel to implement the House of Delegate's 2006 adoption of a resolution providing that "the American Bar Association urges federal, state and territorial governments to provide legal counsel as a matter of right at public expense to low-income persons in those categories of adversarial proceedings where basic human needs are at stake, such as those involving shelter, sustenance, safety, health or child custody, as determined by each jurisdiction.”
The ABA Model Act provides that a state adopting it should establish a board responsible for administering and overseeing the funding of a legal services delivery system established by the legislature. The public legal services program would include both full- and limited-scope representation, paralegal assistance and technological supports sufficient to ensure that the basic human needs at stake are not jeopardized because of the absence of legal assistance. The program created by the act would not replace or absorb existing legal services programs, but would supplement them in order to afford legal representation in specified problem areas to low-income individuals not assisted by existing programs because of limited resources.