Friday, March 27, 2015
The current issue of the Canadian Journal of Human Rights is a special volume focused on solitary confinement and human rights. Articles in the interdisciplinary journal include prisoner writing and philosophy as well as comparative analyses from Europe and the United States.
In the U.S., though its use has decreased since a peak in the 1990s, solitary confinement remains pervasive and concerning; an estimated 80,000 prisoners are currently detained in solitary confinement in the U.S. Indeed, even the mainstream media has picked up the issue, with no less than Vanity Fair publishing an essay on "the horrors of solitary confinement" in its January 2015 issue and the New York Times running Emily Bazelon's essay on "the shame of solitary confinement" the following month.
Activists are determined to bring an end to the practice, and have called for a complete ban on prolonged solitary confinement of more than 15 days. Lawsuits have been one vehicle. A suit in New York City led to favorable reforms. Pelican Bay prisoners mounting a pending suit in California recently won a motion to maintain past prisoners as members of the class, increasing the pressure on the state. Also in California, Statewide Coordinated Actions To End Solitary Confinement (SCATESC), began March 23, 2015, with actions in Arcata, Oakland, San Diego, San Jose, Santa Cruz and in Philadelphia, PA. More locations will join on April 23rd and then 23rd of each month following.
The upcoming University Periodic Review of the U.S. by the Human Rights Council will provide another occasion for scrutiny of U.S. prison practices. A consortium of groups, led by the Center for Constitutional Rights, submitted a succinct document to the Council addressing solitary confinement. The final paragraph of the submission aptly sums up the current struggle for reform:
"The US warehouses tens of thousands of prisoners in prolonged solitary confinement, a practice
that is well-known cause to devastating psychological and physical effects. These harms are disproportionately visited upon people of color, politically-active prisoners, and those whose
gender or sexual identity is perceived to make them vulnerable to sexual assault. The US Government must take concrete steps to end the use of prolonged solitary confinement; to ensure
meaningful process prior to such confinement; to develop standards that prevent the
discriminatory use of solitary confinement; and to compile data on the use of solitary
confinement across the country."
Thursday, March 26, 2015
The international Human Rights Cities movement continues to take hold in the United States. Boston, Washington, D.C., and Pittsburgh are among the large cities that have formally endorsed a human rights perspective as a matter of city policy, along with smaller localities such as Carrboro, North Carolina and Eugene, Oregon.
According to the Mountain View Voice, Mountain View, California may be the next to join the movement. Local advocates on the City Council and the Human Relations Commission are raising the issue before the Mountain View City Council, which will consider a human rights city proposal sometime this year. As part of the resolution, the city's Human Relations Commission will change its name to the Human Rights Commission.
For more information, and to learn how Eugene, Oregon is inspiring Mountain View's policymakers, read the article here.
Wednesday, March 25, 2015
Tuesday, March 24, 2015
As discussed earlier on this blog, Cameron Todd Willingham was executed for murder by arson of his three young children. Throughout his trial and incarceration, Willingham claimed his innocence. Forensic evidence later proved that Willingham did not commit the crimes.
Now the Texas state bar has charged the prosecutor in the case with misconduct. This is the same prosecutor who in 2009 declared during a Nightline investigation that he was untroubled by the overwhelming evidence that showed Willingham's innocence. According to the Innocence Project website:
"The bar accuses the former prosecutor, John H. Jackson, of obstruction of justice, making false statements and concealing evidence favorable to Willingham's defense, according to a disciplinary petition filed in Navarro County District Court this month."
Co-Editor Brian Howe previously wrote on the topic. Click here for his report.
Monday, March 23, 2015
If anyone has doubts about the ability of determined individuals to control intellectual thought and speech, then s/he need only examine what is happening to faculty at the University of North Carolina. A new era of intolerance arrived some time ago, but recent actions have a different, more damaging twist.
To recap, the state’s governor, Pat McRory, announced two years ago that the state should not be “subsidizing” courses such as those on gender and those teaching Swahili. “Subsidizing” in this context means that the state university should not offer such courses. As do many driven by personal agenda, McRory cloaks himself in the rhetoric of the public good. Reminiscent of those who cannot tolerate dissention, McRory accused his targets of the very behavior he engages in. He stated: “Our universities should not be used to indoctrinate our students to become liberals or conservatives, but should teach a diversity of opinions which will allow our future leaders to decide for themselves.” He then proceeded to shut down three voices of what he perceived as “liberal” voices, seeking to eliminate diversity of opinion on campus.
In a move designed to implement his thinly disguised agenda, the state recently announced the closing of three University Centers, all of which promote interests that are not in line with the administration’s agenda. The three disbanded centers addressed environmental concerns, voter engagement and poverty. A New Yorker article focuses on the law school’s Center of Poverty, Work and Opportunity, directed by Prof. Gene Nichol, as the primary target of the state’s actions.
I will not describe the administration’s agenda as “conservative.” This form of divisive labeling does not help. Labeling by political perspective paints those who may advocate more restrained fiscal policy with individuals who, like Governor McRory, use the power of the state to destroy those who simply have a perspective different from his. McRory is not conservative, he is intolerant. Let’s not confuse the two.
A more accurate description of McRory and his kind is that they do not believe in or support the bill of rights to the U.S. constitution. Free speech is replaced by state propaganda. Disagreement with the state is grounds for punitive action.
At the heart of the closings was Prof. Nichol’s public criticism of state policy. Nichol had written a series of opinions published in the Raleigh News and Observer in which he criticized what he described as the state’s “war on poor people.” According to reports, these published opinion pieces were followed by communications by legislators to the law school’s dean threatening closure of the Center on Poverty, Work and Opportunity if the newspaper pieces did not stop. Then in January, the President of the University was fired.
This is not a post on tenure protections, although the described actions emphasize the need for tenure and academic freedom. There is an alarm ringing for all of us. Major movements whose goals have been to suppress individual opinion in favor of state propaganda have often started with actions designed to silence university professors. 20th century examples of this sort of state action abound in our studies of human rights deprivations. But this is not 20th century history. We cannot distance ourselves from what is happening in North Carolina. The state action to suppress diversity of opinion there is an immediate human rights crisis. How will we respond?
Friday, March 20, 2015
The State Department reports that on March 18, 2015, the United States became the Chair of the Voluntary Principles on Security and Human Rights Initiative. The United States' annual report under the Principles is available here.
The U.S. Report particularly touts the Administration's progress toward development of a National Action Plan on responsible business conduct -- a culmination of significant advocacy by the International Corporate Accountability Roundtable and others. Among other things, the US Government reports that it will "hold several dialogues with stakeholders throughout the year to provide input into the NAP process," including an upcoming dialogue on April 2 at the University of Oklahoma College of Law in Norman, Oklahoma focused, in part, on the extractives sector. Another dialogue will be held in Washington, D.C. on April 16. Earlier dialogues were conducted at Berkeley, California and New York University. The dialogues are open to the public, but discussions are not otherwise publicized.
In 2013, Oxfam withdrew from the Voluntary Principles Initiative, citing its frustration “at the lack of meaningful progress in independent assurance, despite more than ten years of deliberation and discussion — and notwithstanding the commendable efforts of some companies to develop relevant indicators on the margins of the VPs."
Two years after Oxfam's move, the US term as Voluntary Principles chair, coinciding with the development of the US National Action Plan, provides a strategic opportunity to press for more progress in these areas, both from within the Voluntary Principles group and, like Oxfam, from the outside.
Thursday, March 19, 2015
As law professors, we often repeat the same strategies again and again in our efforts to promote human rights dialogue and education: we write law review articles, blogs, op eds, amicus briefs, textbooks and sign-on letters; we organize and attend conferences; we raise issues in our teaching.
Professor Michael Meltsner of Northeastern Law School, however, did something different. In 2011, he wrote a play: In Our Name: A Play of the Torture Years. As described by the author, the play "depicts how and why the nation found itself brutally treating the men it detained—some with good reason, some with stunning caprice—after 9/11. The play confronts the government rationalizations, the bizarre military hearings, and the willful blindness of the public to what was happening behind barbed wire."
After successful productions in Boston and New York, Professor Meltsner's work will be performed once again at 4 p.m., March 19, 2015, at Northeastern's Blackman Auditorium. A panel discussion of the ethics of torture will follow the performance.
As an alternative to professors' "business as usual," theatre has much to recommend it. "New Tactics for Human Rights," a program of the Center for Victims of Torture, reports that "by working through theatre, both performers and spectators can engage difficult questions in a safe space. Theatre is also an ideal instrument to give witness to human rights violations. It is also an excellent tool for education and awareness raising. Lastly, these insights can be used to advocate for policy and legislative changes."
Such creative efforts to perpetuate the dialogue about human rights and torture are particularly important given the continued detentions at Guantanamo and media blackout on conditions there. Recent reports indicate that the requests of Juan Mendez, the UN Special Rapporteur on Torture, to interview detainees have been denied. And the U.S. government has discontinued reporting on hunger strikes and forced feedings at the facility. Without new "news," there's a danger that indefinite detentions and the abuses that go along with them, will become simply part of everyday background noise.
In Our Name has sparked, well yes, more law review articles. But more importantly, by employing an unexpected strategy, it breathes new life into the movement to end these abuses.
Wednesday, March 18, 2015
Last week, Juan E. Méndez, U.N. Special Rapporteur on torture and other cruel, inhuman and degrading treatment or punishment, released an important thematic report on children deprived of their liberty. The Special Rapporteur concludes in his report that children deprived of their liberty are at a heightened risk of torture and ill-treatment due to their unique vulnerability and needs. He finds that healthy development in children can be derailed by excessive or prolonged activation of stress response systems in the body, with damaging long-term effects on learning, behavior and health. Moreover, the report finds that detention of children is inextricably linked—in fact if not in law—with the ill-treatment of children, due to the particularly vulnerable situation in which they have been placed, exposing them to numerous types and situations of risk. The report also provides an overview of the international legal framework and standards protecting children deprived of their liberty from being subjected to torture and other ill-treatment.
Some of the Special Rapporteur’s key recommendations and conclusions in his report on children deprived of liberty include:
• Detention of children should be used only for the shortest possible period of time, only if it is in the best interest of the child, and limited to exceptional cases.
• States should adopt alternatives to detention for children whenever possible.
• Minimum age of criminal responsibility should be no lower than 12 years old.
• No life sentences without parole for children (and even lengthy sentences can be grossly disproportionate and amount to ill-treatment).
• No use of restraints for children deprived of their liberty under any circumstance.
• No solitary confinement for children deprived of their liberty.
• No death penalty for children deprived of their liberty.
• No corporal punishment for children deprived of their liberty.
• No immigration detention (detention of children based on migration status is never in the best interests of child, is grossly disproportionate, and constitutes ill-treatment).
• Special attention should be paid to children deprived of their liberty in health- and social-care institutions, including in private settings.
For U.S. juvenile justice and immigration advocates, these may seem like almost revolutionary recommendations—no immigration detention, no criminal responsibility for children 12 years old and lower, no restraints. The report also points out that the “United States of America is the only State in the world that still sentences children to life imprisonment without the opportunity for parole for the crime of homicide.” Yet, many of the conclusions in the report have already been covered by other international bodies and special rapporteurs. This is the first time these recommendations have been put forth in the anti-torture context, however, which makes this report distinctive and important. Unfortunately, the U.S. has so far ignored the Special Rapporteur’s report and recommendations, as was highlighted by the ACLU.
The Special Rapporteur on Torture’s team at the Anti-Torture Initiative (ATI) has released a brief video on the report, and initiated a #StopChildTorture social media campaign, including a Thunderclap (join the #StopChildTorture campaign here). The Special Rapporteur also continues to actively work with colleagues and States to figure out the best ways to support implementation of his conclusions and recommendations. His team welcomes suggestions and you can get in touch with the new ATI Assistant Project Director Andra Nicolescu at firstname.lastname@example.org.
Tuesday, March 17, 2015
On November 1, 2006, Leopoldo Zumaya and Francisco Berumen Lizalde filed a petition before the Inter-American Commission on Human Rights arguing that the US Supreme Court’s 2002 decision in Hoffman Plastic Compounds, Inc. v. NLRB and its progeny directly and indirectly resulted in denial of equal access to the courts and equal remedies for their on-the-job injuries, in violation of international law. More than eight years later, Mr. Zumaya and Mr. Lizalde finally had their day in court – a hearing on the merits, held Monday, March 16th, before the Inter-American Commission. Submissions in the case are available here.
Mr. Zumaya and Mr. Lizalde were among the approximately 8 million or more undocumented workers in the US. Laboring in notoriously dangerous jobs, they both had the grave misfortune of being injured on the job. While the applicable workers’ compensation laws in the states where they were injured do not facially discriminate on the basis of immigration status, a chasm exists between the rights on paper and reality. Following the Supreme Court decision in Hoffman Plastic, 535 U.S. 137 (2002), the US legal system allows immigration enforcement to trump a workers’ rights to a full, equal and effective remedy, and condones and in some cases facilitates discrimination against workers, solely on the basis of immigration status.
Shortly after Mr. Zumaya fell, and when it became apparent he would not be able to return to his original job, he was fired and kicked out of his employer-provided housing. He stayed with a friend while his lawyer helped him pursue his claims for workers compensation. Unfortunately, due to a Pennsylvania Supreme Court decision, Reinforced Earth Co. v. WCAB, 810 A.2d 99 (Pa. 2002), that effectively denied wage loss benefits to undocumented workers with permanent partial disability, he was forced to settle his claim for nearly one-third of what a US citizen worker could have obtained.
Mr. Lizalde was not just denied access to a full remedy under the law; he was criminally prosecuted, seemingly in retaliation for his on-the-job injury. Shortly after an operation on his injured hand, Mr. Lizalde received a call from the insurance company inquiring into his immigration status. After that call – and just before his scheduled appointment for his workers’ compensation impairment rating evaluation -- he was arrested at his home by immigration authorities and put in jail, leaving his wife and US citizen daughter without their family’s sole provider. He was criminally prosecuted for document fraud by an Assistant US Attorney who had publically stated that undocumented workers filing for workers compensation could find themselves prosecuted and facing up to a year or more in jail. Knowing that he could not support his family from jail, he pled guilty and was deported. Shortly after his deportation, Mr. Lizalde’s workers’ compensation attorney filed for workers compensation and subsequently received a call from the US attorney who had prosecuted Mr. Lizalde, asking whether Mr. Lizalde had “illegally” reentered, effectively serving as a warning against continuing to pursue relief.
The petitioners’ experience is not unique. In many jurisdictions, unauthorized workers are denied full access to compensation for work-related injuries. In others, they may not be accorded full remedies for discrimination on the job. And everywhere in the US, unauthorized workers fired for exercising their fundamental freedom of association at work receive no compensation whatsoever.
The denial of certain remedies for unauthorized workers has had other effects. When workers have the temerity to file a complaint for abuses suffered on the job, many employers will aggressively try to force them to reveal their status in legal proceedings, and some judges have so ordered. Incidents of actual retaliation, and workers’ legitimate fear of retaliation, have resulted in a climate where the rights of undocumented workers to unionize, to be compensated for an injury, and to be free from abuse and discrimination in the workplace are routinely abused.
There have been some governmental efforts to protect unauthorized workers, at least from retaliation. Some workers are able to receive visas or prosecutorial discretion as victims of workplace crimes, and have been able to ward off deportation by virtue of their involvement in labor disputes. But these remedies are not widely available, and workers continue to face both legal and practical limitations on the exercise of their labor rights.
In the IACHR case, Petitioners seek recognition that their rights were violated, remedial measures and reentry into the US to pursue their compensation claims. In addition, they ask that national laws, policies and practices be amended to ensure that all workplace protections are applied in a nondiscriminatory manner, and that comprehensive legislation be enacted to correct the US Supreme Court’s decision in Hoffman Plastic.
In addition to these measures, there are immediate administrative reforms that would move the US closer to the rule that " the migratory status of a person can never be a justification for depriving him of the enjoyment and exercise of his human rights, including those related to employment." For example, the US can: 1) take steps to ensure that all undocumented workers in the midst of legitimate labor disputes can claim the right to remain in the US and work; 2) strengthen existing policies that prevent employers from using a workers’ immigration status as a weapon in labor disputes; and 3) educate and instruct courts and other officials on the limits and applicability of the Hoffman decision, prohibit judicial and agency inquiries into immigration status, and work with state officials to ensure that state laws are in compliance with human rights norms.
While Mr. Lizalde and Mr. Zumaya were not able to attend the DC hearing in person, they eagerly await the outcome, and a recognition from the Commission that their rights were violated. They are optimistic that changes to US law and policy will follow to ensure that full rights and remedies are available to the approximately 8 million unauthorized workers who make enormous daily contributions to our economy and society.
Monday, March 16, 2015
Prof. Risa Kaufman's and Prof. JoAnn Kamuf Ward 's students traveled to Alabama last week to participate in events commemorating the 50th anniversary of Bloody Sunday. The students provide us with their first hand account.
By: Glory Nwaugbala, Dan Pedraza, Ben Setel, and Audrey Son, Columbia Law School Human Rights Clinic
As members of Columbia Law School’s Human Rights Clinic, we have spent this academic year working to advance state and local implementation of human rights within the United States. We recently experienced the importance of this work firsthand over the course of a weekend in Alabama.
Many of the United States’ human rights obligations fall within the jurisdiction of state and local governments. Through the Columbia Law School Human Rights Institute, we have been working to develop and support state and local implementation of these obligations. As part of that work, we’ve been privileged to work with the Birmingham mayor’s office. We have been particularly excited to work with Birmingham, not only because of that city’s historical importance in the civil rights movement, but also because Birmingham Mayor William Bell has emerged as a champion for human rights, including through his participation on the United States’ official delegation to the CERD last summer.
On Friday, March 6th, 2015, Mayor Bell hosted a dialogue on local human rights concerns in advance of the upcoming review of the United States at the Universal Periodic Review, and in conjunction with the 50th anniversary of Bloody Sunday (when, as part of the Voting Rights Movement, unarmed demonstrators attempting to peacefully march from Selma to Montgomery were attacked by state troopers on the Edmund Pettus Bridge).
For this event, we helped plan a day of panels on a wide range of issues, including education, immigration, homelessness, and marriage equality. The panelists included state legislators, law enforcement officers, local advocates, community members, and other actors. A representative from the U.S. State Department attended, as well, and noted in his closing comments that “human rights are universal but are experienced locally.” He went on to say that this event was precisely the sort of local engagement that the State Department hoped to cultivate throughout the country. It was encouraging to hear such strong words of support for state and local engagement with human rights from a federal government representative.
Although the individual panelists may not have shared the same views or experiences, some common ground emerged. Where each had seen a gap in justice, each has worked to fill it. Despite the efforts of these individuals and their respective organizations, however, it was clear that more must be done to address critical social justice concerns in Birmingham. The dialogue among the panelists highlighted one of the major themes of the weekend: the promise of human rights in addressing local issues. As one panelist noted, Birmingham must transition from “the cradle of civil rights to the house of human rights.”
Human rights provide a valuable supplement to the traditional civil rights framework. The language of human rights makes clear the intersection and deep connection between economic, social, cultural, civil, and political rights. A human rights frame can better capture many contemporary issues, and pave the way for holistic solutions. It can empower individuals by explicitly acknowledging them as rights-holders. And such acknowledgement highlights that government actors have a responsibility to protect, respect and fulfill rights.
The following day, March 7th, 2015, marked the 50th anniversary of Bloody Sunday, the attempted march from Selma to Montgomery that sparked the passage of the Voting Rights Act. We travelled from Birmingham to Selma to hear President Obama, Congressman John Lewis, and others speak on the legacy of the march. As Congressman Lewis embraced our nation’s first African-American president, sharing a stage in this historic place, we were reminded that although the struggle for rights in the United States has been long and difficult, it is one that has made tremendous strides forward. President Obama's speech served as both a reflection on progress made and as a call to further action. Tens of thousands of people of all ages, races, genders, and sexual orientations gathered in Selma that day to rally around one idea: keep marching. As President Obama reminded us: “the most powerful word in our democracy is the word ‘We.’”
Throughout the weekend, we were struck by the way in which human rights themes permeated the discourse from the local level all the way to the President’s speech. While not everyone mentioned “human rights” explicitly, the principles were evident in their words and in their work. Human rights have a role to play in cities, in states, and at the national level, and they provide a roadmap for the achievement of the universal rights of all people.
Hearing those themes reflected in Alabama was particularly powerful. The story of civil rights in Alabama is as inspiring as it is unfinished. Knowing that tremendous progress has been made in the fight for civil rights—both in Alabama and across the United States—we have good reason to be optimistic about the promise of human rights. In order to realize this promise, however, we must keep marching.
Friday, March 13, 2015
Risa Kaufman, Columbia Law School of Law
In a strong example of how human rights can advance domestic social justice advocacy efforts, the New York City Bar Association’s Pro Bono and Legal Services and Housing Court Committees issued a joint report last month drawing on human rights as support for pending legislation that would provide for a right to counsel in New York City housing court.
International law recognizes that legal representation is essential to safeguarding fair, equal, and meaningful access to the legal system, and critical to safeguarding other human rights. The City Bar’s Report details recent recommendations by the UN human rights treaty bodies that the U.S. do more to ensure access to legal representation in cases where basic human needs are stake. The Report also highlights general statements by UN treaty bodies and UN Special Rapporteurs on the importance of access to legal representation more generally and its impact on other human rights, along with the jurisprudence of other jurisdictions protecting the right to counsel in basic needs cases.
The proposed New York City legislation (four different bills are currently pending) would provide a right to counsel in housing court for low-income tenants in New York City who are facing loss of housing through eviction, ejectment or foreclosure. The Bar Committees offer support for one of these bills, Intro 0214-2014, with the recommendation that the income eligibility requirement be raised. It’s heartening to see the organized bar embrace international human rights to strengthen its advocacy on a local issue and mainstream efforts to bring human rights home!
Thursday, March 12, 2015
If you need any more evidence that cities are staking out a leadership role in "bringing human rights home" in the United States and elsewhere, check out the op ed by New York City's first lady, Chirlane McCray, in The Guardian earlier this week. Writing on the occasion of the Beijing + 20 gathering at the United Nations, McCray takes special note of the role of women, arguing New York City is "making good" on the promises made at the Beijing Women's Conference by expanding universal pre-kindergarten, providing greater access to sick leave, participating in the UN Safe Cities Global Initiative, and appointing high numbers of women in leadership positions. McCray also highlights other cities around the world that are addressing women's human rights, including Cairo, San Francisco and Vienna.
San Francisco is a case in point. As the first city in the U.S. to adopt CEDAW as municipal law, San Francisco has also launched the Cities for CEDAW campaign. The website of the San Francisco Department of Women provides a host of tools to assist advocates in mounting similar campaigns in their localities, including a template for drafting a law or resolution, guides on how to conduct a gender analysis of city agencies, and fact sheets on San Francisco's law. Indeed, the Mayor of San Francisco, Edwin Lee, has endorsed the Cities for CEDAW campaign and calls on his "mayoral colleagues" across the nation to participate. Meanwhile, of course, CEDAW ratification languishes on the national stage.
Importantly, New York and San Francisco are part of a larger global movement which encompasses an array of city-level human rights initiatives, including the human rights cities movement. On May 15-18, in Gwangju, Korea, the World Human Rights City Forum will hold its fifth annual gathering under the theme "Towards a Global Alliance of Human Rights Cities for All, Part 2." For more information on the event, click here.
Wednesday, March 11, 2015
By Brian Howe
Liliana Segura has an interesting article over at The Intercept about the case of Claude Garrett, who was convicted in 1992 of killing his girlfriend Lorie by (or at least, in connection with) burning down the house they shared.
Garrett's story illustrates the problems with junk science in arson investigations. The case also illustrates how advancements in forensics are not self-implementing, and mere acknowledgment of these problems does not dispel them.
If Garrett's story sounds familiar, it may be because it is remarkably similar to the Cameron Todd Willingham case. Like Willingham, Garrett escaped a burning house. His girlfriend, Lorie, did not and was found trapped downstairs, dead from smoke inhalation. Neighbors who initially did not report anything wrong began to notice, in hindsight, that Garrett's reaction was strange or not sufficiently emotional. Garrett had a lengthy criminal history and was easy to villianize. Most importantly, arson investigators testified from simple observation that they knew the fire in Garrett's house was the result of arson.
We now know that much of the methodology used in arson investigations at the time-- if it can even be called a methodology-- was severely flawed. But although knowledge of these problems has been around for decades, since as early as the 1990s, the lessons have yet to be fully absorbed by some fire investigators:
"Recent experiments have yielded troubling results. In one 2005 test, ATF researchers asked 53 professional fire investigators to pinpoint the origin of a series of post-flashover fires. Only three were able to do so accurately — most drew false conclusions based on burn patterns. In 2011, a test conducted by the California-based Arson Research Project asked professional fire investigators to assess 12 post-flashover burn patterns and distinguish between those that involved a liquid accelerant and those that did not. In reality, there is no way to tell the difference based on visual evidence alone. Yet out of 33 investigators, only three responded that such a conclusion could not be determined based on this evidence."
To have only 1 in 10 investigators acknowledge the impossibility of visually deducing arson from pour patterns, as recently as 2011, is inexcusable. How many of those investigators continue to offer these same opinions in criminal trials?
Scientific advancements do not automatically incorporate themselves into the bureaucracy of our criminal justice system. Instead, lawyers and judges are tasked as gatekeepers as to what evidence comes before a jury. Garrett's case became a perfect example of how this can go wrong when he was granted a re-trial in the early 2000s.
"But at the retrial, which began on July 21, 2003, nothing went according to plan. [Defense attorney] Scott did not call Dr. Roth. The projector equipment [defense expert] Bayne planned to use to demonstrate fire behavior to the jury malfunctioned — and Scott took him off the stand before he could thoroughly explain fire behavior. Aside from a cursory mention in Scott’s opening statement, the jury heard almost nothing about NFPA 921 — and very little about modern developments in fire science. Defending his theory that the fire was accidental, Bayne said during cross-examination that if [the victim] Lorie had dropped a cigarette in the love seat, “Lorie created this tragedy.” The poor turn of phrase was seized upon by prosecutor Jon Seaborg as suggesting she had been “responsible for her own death with her cigarette smoking.”"
At the original trial, prosecutors presented testimony that the initial people at the scene had found Lorie locked in a utility room from the outside. Garrett initially won his new trial, not because of junk arson science, but because investigators were found to have withheld documentation that this room was not locked when first responders arrived. Incredibly, on both this point and the junk arson science, the State's approach at the new trial was to simply push forward with the original story.
"Meanwhile, testifying for the state, Fire Captain Otis Jenkins said he had no memory of telling police that the utility room was unlocked. (“I’ve said the whole time that the door was locked,” he said.) But most significantly, Cooper, who had stopped investigating fires in the mid-90s, continued to swear by the same theories about pour patterns that had been exposed as myths more than a decade before. His conclusions, he said during cross-examination, were reached “[j]ust through my training and experience.” He added, “If I’m proven wrong I will admit I am wrong. But on this one, no sir. I was there. I saw it with my eyes.”
It took the second jury less than five hours to send Claude back to prison."
Garrett has been unsuccessful in recent litigation to re-open the case a second time. There has been some push recently towards finding a substantive due process right against conviction based on faulty science. That may help provide some kind of baseline accountability in situations like these.
Garrett's case is a useful reminder that scientific advancements towards identifying junk science are necessary, but not sufficient, to prevent wrongful convictions. Dispelling myths inherent in junk science is critical to effective human rights advocacy in both our criminal and civil justice systems.
Tuesday, March 10, 2015
Sital Kalantry submits this post written by one of Liz Brundige's students following the conference “Sexual Assault in The United States Military: How Far Have We Come,” hosted by the Avon Global Center, the New York City Bar Association’s Sex and Law Committee, the Avon Foundation for Women, Protect Our Defenders, the ACLU, and the New York City Bar Association’s Committees on Military Affairs and Lesbian, Gay, Bisexual and Transgender Rights.
Amanda Reynoso-Palley writes:
Last fall, I joined a project addressing sexual violence in the U.S. military as part of Cornell Law School’s Global Gender Justice Clinic. My work focused on the use of international human rights legal tools to address military sexual assault. On February 19, 2015, I travelled to New York City to attend an event I had been eagerly awaiting: “Sexual Assault in The United States Military: How Far Have We Come.”
Sexual violence in the military is perpetrated at alarming rates. According to one study, one in three service women experiences some form of sexual violence while serving in the military. Though the government recently implemented reforms to improve the way the military handles sexual violence in its ranks, it has not gone far enough. The decision whether to prosecute the accused still rests in the hands of the accused’s commanding officers rather than an independent authority. Also, due to the longstanding judicial Feres Doctrine, service member victims of sexual violence are precluded from suing the military in civilian courts. If the military justice system fails victims of sexual violence, they have no other legal recourse.
After seeing how our military and civilian justice systems have failed to protect those who so bravely volunteered to protect us, the Global Gender Justice Clinic decided to pursue international remedies. I joined a team that brought the claims of 27 service member victims of sexual violence (whose cases were dismissed by federal courts) to the Inter-American Commission on Human Rights (IACHR). We submitted two petitions, one in January 2014, and another in January 2015, requesting that the IACHR hold the United States government responsible for violating survivors’ human rights.
Meanwhile, last November, the Clinic, together with its partners, submitted a shadow report to the U.N. Committee Against Torture to inform its review of the United States’ compliance with the Convention Against Torture. The report and related advocacy helped the Committee conclude that the United States should take further measures to ensure the prevention and prosecution of sexual violence in the U.S. military.
In a few weeks I will be travelling to Geneva, Switzerland to pursue a third international human rights strategy. This May, the U.N. Human Rights Council will review the United States’ compliance with its human rights obligations as part of the Universal Periodic Review process. In anticipation of this review, the Clinic and its partners submitted a shadow report highlighting the United States’ failure to adequately respond to military sexual assault. In Geneva, we will engage with representatives of U.N. Member States in the hope that the Council’s report will address the United States’ response to military sexual violence.
I was eager to hear the speakers at the event in New York City contribute to this discussion. While presenting the keynote address, Tracy Robinson, President of the IACHR, explained that sexual violence is a human rights violation that states have an obligation to investigate, prosecute and punish. She cited multiple cases in which the Inter-American human rights system held that sexual violence perpetrated by military members constituted human rights violations. She stressed that the United States cannot stand apart from the other OAS Member States on grounds of U.S. exceptionalism. She concluded by noting “international human rights law must become an important tool and mechanism for ending impunity not just in the United States but everywhere.”
After the keynote address, four expert panelists discussed important steps that recently have been taken to address military sexual assault and the challenges that remain. Sandra Park, senior staff attorney with the ACLU Women’s Rights Project, noted that sexual violence in the U.S. military should be seen as part of the larger issue of gender-based violence and sex discrimination in the U.S., and as part of broader concerns about the military justice system and the ways that command influence undermines the due process rights of both victims and the accused.
Elizabeth Hillman, Provost, Academic Dean, and Professor of Law at University of California Hastings College of Law, spoke about her experience as a member of the Response Systems to Adult Sexual Assault Crimes Panel that was given the congressional mandate to review the systems used to investigate, prosecute and adjudicate military sexual assault. Quoting from her separate statement to the Panel’s final report, she argued that its failure to call for the removal of prosecutorial discretion from commanders prevented the military from responding fairly and robustly to sexual assault.
Greg Jacob, Policy Director of Service Women’s Action Network and a former U.S. Marine, noted that enacting legislative change can be difficult due to lawmakers’ deference to the military. He argued that, in combatting sexual violence, we must ensure that the military records data and uses it to effect policy changes.
While acknowledging that more work needs to be done, Major General John Altenburg Jr., a retired U.S. Army officer who supported the Response Systems Panel as a subject-matter expert, highlighted the reforms the military has made to address sexual violence. These include changes to the military investigation system that ensure every allegation of sexual violence is investigated by impartial members of the Criminal Investigation Command. Major Altenburg argued that commanders’ prosecutorial discretion should not cause concern as only commanders holding the rank of Colonel or Navy Captain and above hold this discretion and these commanders are impartial by virtue of overseeing 3000 soldiers.
By the conclusion of the event, one thing seemed apparent: everyone agrees that sexual violence in the military is a problem, but each speaker had different views on how best to solve it. Despite the lack of consensus, it was inspiring to see a room filled with experts all working to combat sexual violence in their own way and sometimes in collaboration with each other. After hearing the inspiring words of Commissioner Robinson and Sandra Park, I remain convinced that we must use international fora to place pressure on the United States. However, I realize that international strategies alone may not remedy the current situation, and it was encouraging to hear the strategies being used domestically. I am hopeful that the combined work of all involved will eventually ensure that all victims of sexual violence in the military receive the justice they deserve.
Monday, March 9, 2015
International Women's Day (March 8) receives little attention in the U.S. when compared with other nations. Sometimes we neglect to recognize those close to home who contribute so much to advancing human rights. I encourage you to honor the woman in front of you. In that spirit, I would like to recognize my co-editor, Martha Davis, with whom I am honored to work on this blog. Martha recently answered a series of questions on the status of women, reprinted below.
Martha F. Davis
Issues of equal pay and workplace discrimination affect a huge number of women, and make it more difficult for women to leave poverty. Violence against women also cuts across racial and class lines.
What factors, financial or otherwise, should women consider when choosing a city to live in?
I would look for women in civic leadership positions, percentages of women in the police force and other indicators that show a commitment to women's economic and civic equality.
There are also many factors that, because of gender inequality, men probably never think about, like safety (e.g., street lighting), and (for parents) access to affordable child care and after school care.
How can local health authorities better meet the needs of women?
Violence against women has huge impacts on women's health -- both directly, through the violence itself, and indirectly as it increases women's stress and may make it more difficult for them to care for themselves in other ways.
Many organizations have developed interventions for both men and women, and approaches to curtailing the violence. Violence against women includes stranger violence as well. Media images certainly play a role in opening the door to gender-based violence. Local health authorities can help through public education campaigns, partnerships with public schools and other institutions, and interventions with youth, hopefully before the violence begins.
How can local authorities encourage more women entrepreneurs and support women-owned businesses?
Equal pay initiatives would, of course, indirectly assist with this, since entrepreneurial women would have more access to the seed funds necessary to start a business.
Role models, mentoring programs and support groups, prioritizing these initiatives at the local level, can have a tremendous impact. Similar programs have been very effective in, for example, encouraging women to run for office.
A number of studies have indicated that many women are not great negotiators, that women in general are more ready than are men in general to accept an initial offer even if a better deal is available. Negotiating is a teachable skill. Local authorities could help by mediating negotiations and by offering training to women to equip them to negotiate in a wide range of settings.
What programs should local authorities develop in order to make their cities more women friendly?
San Francisco is the only city in the country that has adopted the international Convention on the Elimination of Discrimination Against Women as its local law and it has made an important difference there.
City agencies have conducted gender audits and found a lot of low-cost reforms that they can implement that make a big difference for women. For example, they expanded the hours when people could apply for various permits so that they did not always conflict with school drop-off and pick-up times; they added street lighting to enhance women's safety and job options; they created new programs to support young girls, and so on. Now, the SF Women's Commission has spearheaded the development of guidelines for city contractors to ensure that they meet international standards for women's equality. Adoption of CEDAW has been a vehicle for SF leaders to discuss, prioritize and integrate women's equality into local policies.
How can local authorities encourage more civic engagement among women, including running for political office?
Again, role models, mentors and support groups are critical. The Women in Public Policy Program at Harvard is a good model for this approach. In today's election climate, however, it's money that ends up being more important. Women can learn how to ask for money and connect with supporters, but workplace equality will also make a difference here, as women have more leadership positions and receive equal pay at a level that will enable them to consider a run for office.
Friday, March 6, 2015
Strangulation is a method of torture used in intimate relationships by abusive men against women. That information may be no surprise to advocates for women who experience abuse. Anecdotally, those who advocate for abused women are informed that men strangle their female intimate partners at an alarming frequency. While not every case involves strangulation (often describe by clients as "choking"), the use of strangulation is disturbingly common.
While more work remains to be done on strangulation in same sex relationships, we know that in heterosexual relationships, strangulation proves to be an indicator of high danger in male-female intimate relationships.
Over the past ten years, strangulation has been studied in a significant way and the results have changed how the crime is treated in criminal charging decisions, in medical treatment and in safety planning.
Of 300 strangulation cases reviewed by Attorney Gael Strack of San Diego, 299 were committed by men against women. The results were published in 21 Journal of Emergency Med.Vol. 21 (2001). The criminal justice system frequently failed to pursue prosecution of strangulation because it is often an invisible crime, leaving no external indications of harm. The consequences are often unrecognized and delayed. Complicating charging decisions further was the lack of information and training in the field. A few of the lesser known facts of strangulation are: even fatal strangulation can leave no external evidence; women who are strangled by intimate partners are 800% more likely to be victims of homicide (Non-fatal Strangulation Is An Important Risk Factor for the Homicide of Women, 35 J. Emergency Med. 314 (2008)); serious health consequences, including stroke, can occur decades after the strangulation.
Female strangulation is a world wide phenomenon that until recently has been misunderstood. Those of us who have advocated enhanced inclusion of violence against women under the Convention Against Torture , and who have promoted CEDAW and other conventions, have not addressed strangulation in the gender context. Our advocacy must keep pace with science on this heinous act of violence against women. Worldwide education on strangulation is needed. We became familiar with recent forms of torture through those seeking elimination of water boarding. We understand the methods and goals of that particular type of torture. We can do the same for strangulation, which globally impacts many thousands more of our population and is both an ancient and contemporary form of torture.
Thursday, March 5, 2015
Yesterday's Supreme Court argument in King v. Burwell focused on the interpretation of just four words -- "established by the state" -- buried in the mega-statute that is the Affordable Care Act (ACA). Hanging on the Court's interpretation of this phrase is whether people in states where the federal government runs the health insurance marketplaces are eligible for subsidies that help them afford insurance. In short, the fate of the ACA -- and the health of millions -- is at stake.
While statutory interpretation seems like a quintessential issue for purely domestic legal analysis, it's worth remembering that U.S. health policy is scrutinized on the international stage as well as at home. This May, the U.S. will send a delegation to Geneva to participate in the Universal Periodic Review (UPR) of U.S. compliance with human rights obligations. In its February 6 , 2015, UPR submission, the U.S. touted the positive impacts of the ACA from a human rights perspective, as follows:
100. The United States has undertaken many initiatives domestically to promote food security and expand health care. The Affordable Care Act has increased health coverage options and quality through new consumer protections, the creation of the Health Insurance Marketplaces—a new means for uninsured people to enroll in health coverage—and additional support for state Medicaid and Children’s Health Insurance Programs. It requires most health plans to cover ten categories of essential health benefits, including preventive services, maternity and prenatal care, hospitalizations, and mental health and substance use disorder services. It also reauthorized the Indian Healthcare Improvement Act, to address some of the health care access concerns in indigenous communities.
101. We are committed to expanding access to health care to all our citizens and as such, have made efforts to strengthen and protect our social and health care programs: Medicare for the elderly and disabled, and Medicaid for low-income individuals and families. Under the ACA, Medicare beneficiaries have saved billions of dollars on prescription drugs and have seen no increase in rates since 2013. Additionally, Medicare beneficiaries no longer have to pay cost- sharing for preventive services, and nearly nine million individuals have enrolled in coverage in state-run Medicaid programs since October 2013.
This submission follows the federal government's many other representations in international fora concerning the benefits of the ACA -- a litany that was set out in a human rights amicus brief filed in the original Supreme Court ACA case.
While it certainly is not the gold standard of universal health care, the ACA at least represents a step toward progressive realization of the right to health in the U.S., and provides a response to international critics of the U.S. record on economic and social rights. A crabbed reading of the four words at issue in Burwell v. King will harm millions and set back the cause of more comprehensive health care; it will also expose the U.S. to international criticism, undermine U.S. ability to credibly critique other nations for their ESC rights violations, and hamper U.S. leadership efforts on ESC rights. It is hard to believe that was the drafters' intent in 2010.
Wednesday, March 4, 2015
A friend, who is in Lithuania to teach an international litigation course, recently shared photos of his visit to the Ninth Fort in Kaunas. The Ninth Fort was the site of Nazi executions of Jews and others. His photos reminded me of my visit to the Ninth Fort in 2004, when I was a visiting professor at Vytautus Magnus University School of Law. I taught a course on human rights law, and more than 100 students were enrolled. In addition to being professionally enriching, it was a profound experience personally: There I was teaching human rights and listening to students talk openly about their human rights concerns in the very place where just two generations earlier many of my relatives had perished during one of the worst human rights atrocities in history -- the Holocaust.
The students interest in and engagement with human rights was a reminder that there is progress. Often, as human rights advocates, we focus on all of the trouble spots. That’s both understandable and important to do. There are too many places where human rights violations persist and they demand our attention. While much work remains, it is worth reminding ourselves that in the 67 years since the adoption of the Universal Declaration of Human Rights, there has been great progress. Millions of lives have been saved, previously silenced groups now are allowed to participate in their countries’ governance, and tens of millions of marginalized individuals have secured access to the basic necessities of life (health care, education, housing, etc.).
Recognizing progress is important to sustaining our effort. When we pause to reflect, we also should recognize and honor the many brave individuals (both famous and largely unknown) who sacrificed greatly to improve human rights for all, around the globe and here in the U.S.
This coming weekend (March 5-9), Selma hosts a 50th anniversary commemoration of Bloody Sunday, the Selma-to-Montgomery March, and the Voting Rights Act of 1965. From the courts (Shelby County v. Holder) to the curbside (Ferguson and many other locales since), we see threats to a breadth of basic human rights. Significant challenges remain and require a sustained commitment to address, but we should not allow the work-to-be-done to completely overshadow the important achievements to date and the courageous individuals responsible for the progress we now enjoy.
Tuesday, March 3, 2015
Professor David Sloss of Santa Clara Law School, has just posted a fascinating study and re-thinking of the relationship between U.S. constitutional race jurisprudence and international human rights law, titled How International Human Rights Law Transformed the U.S. Constitution.
Forthcoming in 37 Human Rights Quarterly, 2015, the article is currently available at Santa Clara Univ. Legal Studies Research Paper No. 415 and through SSRN.
Here is the Abstract:
Monday, March 2, 2015
Leigh Goodmark, University of Maryland Francis King Carey School of Law
Dr. Alesha Durfee, Associate Professor, School of Social Transformation, Arizona State University
Sarah Drewer had a protective order against her husband when he shot and killed her after dragging her outside their home on February 3, 2015. This, of course, was the first question that most people asked: Did she have a protection order? Did she ever try to get one?
We often talk about domestic violence homicides as if the murder could have been avoided if only the protective order had “worked.”
At the same time, in interview after interview, survivors, advocates, lawyers, judges and police officers say that protective orders are “just a piece of paper.” And a piece of paper can’t stop a bullet.
This was true in 1998, when Carlton Edwards killed Melanie Edwards (who had a valid protection order) and her two-year-old daughter Carli during a supervised visitation exchange in Seattle. It was still true 15 years later when Mike Sanders shot and killed his wife, Carol Sanders, her 16 year old daughter Audra, and her brother in Phoenix shortly after the hearing where Carol was awarded a protection order.
Time and time again, women are killed despite being granted the court’s protection.
For some women who have been abused, protective orders provide safety and essential resources, including temporary custody determinations, orders removing their partners from the home and economic support. For others, whose partners are not deterred by the threat of an arrest, protective orders are just a piece of paper.
In some cases, particularly those cases in which threats have been made but physical abuse has not yet occurred, judges are unwilling to grant the orders, despite the very real fear of the women who are asking for them. For some women, the prospect of going to court to get a protective order is daunting enough to make securing an order impossible.
So do protective orders “work”? That’s a complicated question with no easy answer.
Protective orders are not a one-size-fits-all solution. Sometimes they “work,” sometimes they don’t. Part of this is because the “protection” of a protection order is only the threat of an increased criminal justice response. A better name for them might be “enhanced response orders”—then we would have more realistic expectations about how they operate and what they can actually provide to victims. If we really want to protect victims, we need to think about how to provide the services and supports that each individual woman needs to stay safe.
Protecting victims means taking proactive steps to give victims the kinds of resources that are not often available through the legal system. In addition to an enhanced criminal justice response to violations, protection orders should provide victims with access to resources that they can use to protect themselves.
Courts should offer access to safety planning for anyone given a protection order. Orders could provide access to economic resources for victims to move to a new residence, purchase an alarm system, change the locks to their home, and/or have someone supervise visitation transfers. Police could remove firearms from the home and escort a victim home so that she is safe while she picks up her belongings to go to a safe location. These are specific, concrete things that victims can use immediately to protect themselves and their children.
Some courts are able to provide these services, often funded by federal grants or supported by local domestic violence organizations. When the grant ends, the services are gone. These more protective parts of protection orders have not been funded by the state of Arizona in any permanent, systematic way or incorporated into any statute. When grants end, we are only left with the threat of a response—and over and over again, that threat does not work.
The legal system holds out the promise of safety, but can't always deliver on that promise. And that failure to deliver leads to an even greater vulnerability for victims—and, in the most extreme cases, like that of Sarah Drewer, to death.
The expectation is still that every woman who has been abused will ask for and receive a protective order and that protective order will keep her safe from future harm—even as that order is dismissed by everyone involved in the system as just a piece of paper. There is a strange disjuncture between the solution we’ve offered to domestic violence survivors—get a protective order—and our belief in whether that solution will work. It’s as if we told people who are drowning to grab life jackets that have no flotation material, and then are surprised when these people drown, again and again.
We need to acknowledge that even when a woman does everything “right,” she can’t stop an abuser who is determined to kill her. Place responsibility for those deaths where they belong—on the abuser, not the woman who has been abused—and give her tools that she can use to achieve safety.
Editor's Note: A prior version of this post was published in the Arizona Republic.