Human Rights at Home Blog

Popes, Presidents, and Redemption

Co-editor Fran Quigley, Clinical Professor, Health and Human Rights Clinic, Indiana University Robert H. McKinney School of Law, writes today with reflections on efforts to remove unfair barriers to employment for people with criminal records:

 Here in Indianapolis, our City-County Council recently joined 50 other cities across the country in passing “Ban the Box” legislation, which limits the effects of a criminal conviction in initial job applications. The Indiana General Assembly last year approved a law that allows dated and comparatively minor offenses to be off-limits from public view.  

When I think of the new laws that work to give persons with criminal histories a fighting chance to get a job, I think of Popes and Presidents.  

The most celebrated person in the world now may be Pope Francis.  Francis’s embodiment of humility and compassion earned him recognition as person of the year for 2013 by Time Magazine. He was also named the person of the year by the LGBT publication The Advocate. That honor for a pope was only slightly more surprising than Francis’ recognition by Esquire as the year’s best-dressed man.  

But Francis was not always so widely admired—nor worthy of it.  

During the 1970’s Dirty War in Argentina, the former Jorge Mario Bergoglio held a position of superiority in the Jesuit congregation. In his country, the ruling military junta was slaughtering tens of thousands of people considered to be opposed to the regime. The victims included students, trade unionists, and mothers of newborn children.  

Fr. Bergoglio held a role of power and influence. But he did not speak out for human rights, nor did he offer public support for those who did.  

One of those who spoke out was a woman who had been an early mentor to Bergoglio.  Like many others, she was kidnapped and dropped from a helicopter into the sea as fatal punishment for challenging the regime. Bergoglio registered no public protest.  

Nor did he speak publicly in opposition to the brutal kidnapping and torture of two Argentine Jesuit priests in 1976. Some people, including one of those priests, believed Bergoglio actually betrayed the priests to the military.  

Adolfo Pérez Esquivel also endured jail and torture for his human rights advocacy in Argentina during that period, and he eventually won the 1980 Nobel Peace Prize for his work. He says that Bergoglio was not an actual accomplice to the dictatorship. But, Pérez Esquivel adds, “I think he lacked the courage to accompany our struggle for human rights in the most difficult times.”  

Francis has regrets about his actions—and inaction--in this era. “To tell you the truth, I made hundreds of errors,” he said in an interview with Argentinian journalists about that period. “Errors and sins.”  

Yet he emerged from a period of mistakes to become a living symbol of grace. And, yes, an outspoken defender of human rights. Francis is the leader of the faith that, through Paul and Augustine, is no stranger to redemption stories. And he is embraced by millions outside of his church as well.  

In all these respects, Francis has distinguished company.  Last year’s responses to the annual Gallup poll question about our country’s most admired men included a top four of Francis along with our three most recent presidents. Like Francis, our leaders have their own unsavory pasts.

 One of the shared moments in the personal histories of Barack Obama, George W. Bush, and Bill Clinton is their possession and use of illegal drugs. For less fortunate young men, the same choices our presidents made have led to arrest, jail, and lifelong stigma. 

 Those young men who follow in presidential footsteps are more likely to be less lucky if they happen to be persons of color. African American men in particular have been demonstrated time and again to be at disproportionate risk of arrest, charges, and imprisonment compared to whites in similar situations.  

For all these reasons, there is reason to applaud the movements to limit the effects of a criminal conviction, especially years down the road. If we believe in redemption, it is right and just to give ex-offender job applicants a chance to redeem themselves.  

After all, Pope Francis is not eligible to cast the first stone. Most of the rest of us aren’t, either.    

UN Concluding Observations: Some Reflections and Resources

On March 27, the UN Human Rights Committee issued its Concluding Observations to the U.S., following the Committee's review of US compliance with its obligations under the International Covenant on Civil and Political Rights.  Many NGOs have already posted their reactions to the Concluding Observations, and have promised to work domestically to move ahead with many of the UN recommendations.  In the past few years since the US has been more active in reporting to monitoring bodies, many in US civil society have become accustomed to this drill:  1st, US Report; 2nd, Civil Society Shadow Report; 3rd, UN Review; and 4th, UN Concluding Observations.

This occasion prompted me to think about the mechanism of Concluding Observations.  A Westlaw search of law journals for the past 10 years yielded 1369 cites to Concluding Observations.  Clearly, scholars are paying attention to these and using them, at least in footnotes.  However, a search for critical analysis of Concluding Observations yielded much less, just a few dozen cites over the past decade.  A library scan also revealed a few books and relevant chapters.  For example, in her 2001 Report: The UN Treaty System: Universality at the Crossroads, Professor Anne Bayevsky devotes several pages to critique and recommendations for improvement of the Concluding Observations mechanism.

The most comprehensive of the articles addressing Concluding Observations is Michael O'Flaherty, The Concluding Observations of United Nations Human Rights Treaty Bodies, 6 Human Rights L. Rev. 27 (2006).  Among other things, O'Flaherty (a longtime member of the Human Rights Committee) notes that the practice of issuing concluding observations began in 1990 as a way to expand and facilitate greater dialogue with States Parties.  He credits the Committee on Economic, Social and Cultural Rights with issuing the first such observations in the course of reviewing compliance with the ICESCR. 

More recent scholarship has evaluated the practice from several perspectives.  Several authors in transcribed remarks, reproduced in  Duplication and Divergence in the Work of the United Nations Human Rights Treaty Bodies, 105 Am. Soc'y Int'l L. Proc. 515 (2011), questioned the substantive overlap between treaty bodies, often reflected in the Concluding Observations.  An example from these most recent Concluding Observations is the Human Rights Committee's comments on the racial impacts of the US criminal justice system, an issue also squarely within the bailiwick of the CERD Committee.

In Secondary Human Rights Law, 34 Yale J. Int'l L. 596 (2009), Monica Hakimi of University of Michigan questions what legal weight should be given the Concluding Observations of monitoring bodies.  Among other things, she argues that State reports and Committee pronouncements talk past each other, doing little to facilitate real dialogue and agreement. 

Finally, in New Proposals for Human Rights Treaty Body Reform, 22 J. Transnat'l L. & Pol. 29 (2013), Joanne Pedone and Andrew Kloster, of the Heritage Foundation, return to first principles to question the legitimacy of Concluding Observations, noting that there is no mention of this mechanism in the underlying treaties themselves.

As we approach 2015, the twenty-fifth anniversary of the date O'Flaherty identifies for the first use of Concluding Observations, perhaps this is a good occasion for taking a longer look at this mechanism for international dialogue.  Are any Human Rights Law Journals still looking for a Symposium topic for 2015?

 

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Human Rights and the Environment: A New Report to the UN

Professor John H. Knox of Wake Forest University School of Law is the first UN Independent Expert on human rights and the environment. Appointed in July 2012, he is serving a three year mandate.  On Monday, March 24, Professor Knox presented his annual report to the UN Human Rights Council. In advance of that meeting, Professor Knox circulated the following description of his work:

This year, the report maps international human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment. It is based on an extensive survey of statements by human rights treaty bodies, UN special rapporteurs, regional human rights systems, international environmental instruments, and other sources. Those statements are described in 14 source-specific reports. The chief report and the supporting reports are available at http://ieenvironment.org.

The principal conclusions of the mapping project are:

o The human rights obligations relating to the environment include procedural obligations of States to assess environmental impacts on human rights and to make environmental information public, to facilitate participation in environmental decision-making, and to provide access to remedies. The obligation to facilitate public participation includes duties to safeguard the rights of freedom of expression and association against threats, harassment and violence.

o The human rights obligations relating to the environment also include substantive obligations of States to adopt legal and institutional frameworks that protect against environmental harm that interferes with the enjoyment of human rights, including harm caused by private actors. Although States have discretion to strike a balance between environmental protection and other legitimate societal interests, the balance cannot be unreasonable or result in unjustified, foreseeable infringements of human rights.

o States have a cross-cutting requirement of non-discrimination in the application of environmental laws, and additional obligations to members of groups particularly vulnerable to environmental harm, including in particular women, children and indigenous peoples.

Professor Knox’s report to the Council concludes: “Human rights obligations relating to the environment are continuing to be developed in many forums, and the Independent Expert urges States to support their further development and clarification. But the obligations are already clear enough to provide guidance to States and all those interested in promoting and protecting human rights and environmental protection. His main recommendation, therefore, is that States and others take these human rights obligations into account in the development and implementation of their environmental policies.”

[Editor’s Note (M Davis): The Independent Expert plans a consultation on good practices here in the U.S. in September 2014, as part of conference at Yale on Human Rights and Sustainability planned in conjunction with the UN Institute for Training and Research.   For more information on the conference, see:  http://ieenvironment.org/2014/03/04/human-rights-environmental-sustainability-post-2015-development-and-the-future-climate-regime-conference-at-yale-university/.  Deadline for submission of abstracts is April 1.]

 

 

The Human Right to Education: Moving U.S. Schools from Adequacy to Excellence

Co-editor Mariah McGill, Assistant Director of Northeastern Law School's Program on Human Rights and the Global Economy, comments on the recent state constitutional decision of the Kansas Supreme Court requiring that the state legislature address education inequities.

She writes:

On Friday March, 7^th, the Kansas Supreme Court ruled that funding disparities between school districts violated the Kansas Constitution and ordered the Legislature to address the gap in school
funding. http://www.kscourts.org/Cases-and-Opinions/opinions/SupCt/2014/20140307/109335.pdf

 As in many other states, Kansas schools are funded with a combination of state and federal aid and local property taxes.  The Kansas Constitution requires that the state legislature make “suitable provision” for financing public education. Prior litigation had resulted in increased funding, but in the wake of the 2009 recession, the Legislature began reducing the levels of state school aid and in 2012 passed tax cuts to reduce state revenues by approximately $3.9 billion over the next six years. http://www.nytimes.com/2014/03/08/us/kansas-school-spending-ruling.html?_r=0 At the same time, the Legislature has reduced school spending in a variety of areas, leading to increased class sizes, teacher and staff layoffs and ending services for at-risk students. http://www.khi.org/news/2014/mar/07/kansas-supreme-court-rules-school-finance-case/

In response, four Kansas school districts and 31 individuals sued the state alleging that the Legislature was failing to meet its constitutional duty to provide suitable funding for Kansas schools.  After the plaintiffs won in the trial court, Governor Sam Brownback appealed to the Kansas Supreme Court which  ruled that funding disparities between districts violate the state’s Constitution and ordered the Legislature to come up with a plan to address the inequities either by restoring $129 million in school funding or to craft an alternative solution by July 1.  At the same time, the Supreme Court ordered the lower court to re-examine the question of what  constitutes adequate school spending.

 The Kansas Supreme Court’s ruling is welcome in that it will likely reduce funding disparities and increase overall school funding in Kansas from current levels.  The court’s ruling focused on the principles of adequacy and equity.  According to the court, the adequacy requirement is met “ when the public education financing system provided by the legislature for grades K-12 through structure and implementation is reasonably calculated to have all Kansas public education students meet or exceed” certain minimal standards set forth under Kansas law. The equity requirement is met when school districts have “reasonably equal access to substantially similar educational opportunity through similar tax effort. Simply put, equity need not meet precise equality standards.”

In determining what constitutes an “adequate” education under the Kansas Constitution, Kansas courts may find human rights principles instructive.  While the equity and adequacy standards articulated by the Kansas Supreme Court lay out a minimum standard for educational quality, the human right to education articulated under international law is much more expansive. The right to education is recognized in a variety of international documents including the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child and the Convention on all forms of Racial Discrimination.  The human right to education doesn’t merely require an adequate or appropriate education but one that is “directed at the development of the child’s personality, talents and mental and physical abilities to their fullest potential.” Under international law, every child has the right to a quality education adapted to meet his or her needs and it is the responsibility of states to ensure the equitable distribution of these resources to ensure the right to education is fulfilled.  

Editor’s Note (MDavis):  In contrast to the Kansas decision, international human rights law did play a role in the Iowa Supreme Court’s decision in King v. State, 818 N.W.2d 1 (Iowa 2012), addressing the right to education under the Iowa state constitution. There, the plaintiffs sued the state of Iowa and certain educational officers and agencies alleging a failure to establish and enforce standards, effective educator pay systems, and “an adequate education delivery system.”

 The majority rejected these claims.  However, the dissent argued for use of human rights norms as a tool for interpreting the Iowa constitution.  The dissent cited the UDHR for the proposition that education is essential to the development of an autonomous individual with dignity. While acknowledging that the UDHR is not binding, the dissent noted that Eleanor Roosevelt chaired the drafting committee, and that the United States Senate endorsed it; as such, the dissent argued, the Declaration reinforces the notion that education “is broadly regarded as a basic human right.”

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IACHR Hears Testimony on Stand Your Ground Laws

Working with co-editor Carrie Bettinger-Lopez, students of the U. Miami Human Rights Clinic have been working to train a human rights lens on Stand Your Ground laws.  Below, they provide an update on their work and resources for others interested in this timely issue.

The students write:

Almost one month ago marked the two-year anniversary of Trayvon Martin's killing. His tragic death sparked a firestorm of national attention on Stand Your Ground laws and race in Florida - especially after Martin's killer, George Zimmerman, was treated with kid gloves by the criminal justice system and ultimately acquitted by a jury.

Though many have expressed outrage at the pernicious effect of Stand Your Ground on black people - and especially black youth - Florida appears to be doubling down on its defense of this flawed law. Advocates nationwide should take action by standing our ground against the deeply flawed and dangerous nature of this law.

Earlier today, on Tuesday, March 26th from 11:30-12:30 at the IACHR (1889 F. St. NW in DC) the Dream Defenders, Free Marissa Now, the NAACP, the University of Miami Human Rights Clinic, and the Community Justice Project of Florida Legal Services produced testimony for the Inter-American Commission on Human Rights for the 150th ordinary session to discuss stand your ground laws and its effects on minority communities.

If you are interested in this area of human rights law, please visit the websites of the organizations listed above to learn about ways in which you can get involved with advocacy on behalf of these efforts. For additional information on the domestic impact of current policies related to domestic violence, gun violence, and "Stand Your Ground" laws, please read the shadow report submitted by the Human Rights Clinic along with the Advocates for Human Rights, Legal Momentum, and Women Enabled, to the United Nations for the UN's review of the United States' compliance with the International Covenant on Civil and Political Rights. Additionally, another shadow report on Stand Your Ground laws submitted by the Dream Defenders, Florida Legal Services, and the NAACP can be found here.

Note: This blog has been adapted from an op-ed drafted by students Charlotte Cassel, Dan Kinney, and Max Tsoy of the University of Miami Law Human Rights Clinic overseen by Director Caroline Bettinger-Lopez: http://jacksonville.com/opinion/premium-opinion/2014-02-27/story/guest-column-miami-law-students-comment-stand-your-ground

 

Comparing Human Rights Practices

In today's entry, co-editor Jonathan Todres, Associate Professor of Law, Georgia State University College of Law and a  leading scholar working on human rights of children, considers how international standards should be applied across nations with very different political systems, cultural practices and economic situations.

Professor Todres writes:

Last week, the U.N. Human Rights Committee held its official session with the United States to review the U.S. government’s progress under the International Covenant on Civil and Political Rights. It is typical during these review periods for US-based opponents of the international human rights system to argue that the United States is a leader on human rights and therefore should not have to be reviewed by others. In the case of the U.N. Convention on the Rights of the Child , the most widely-ratified human rights treaty in history (193 countries are party to the CRC; only the U.S., Somalia, and recently-independent South Sudan are not), a related argument is made by opponents: why ratify the CRC when children in other countries that are party to the CRC are worse off.

Setting aside the accuracy of such accusations (e.g., the U.S. now ranks 40th in under-five mortality), they raise a more fundamental question: what is the right comparison for the United States in terms of progress on human rights? It is certainly the case that children in many low income countries face more significant obstacles to their rights than most children in the United States. However, using a comparative argument to defend U.S. human rights practices is problematic from both a legal and moral standpoint.

From a legal standpoint, human rights treaties impose a mandate on a country to ensure the rights of individuals subject to that country’s jurisdiction. Whether Malawi or Mauritania or any other country has ensured particular rights of its children is irrelevant to an assessment of U.S. compliance with similar human rights obligations, obligations that the U.S. voluntarily undertakes when ratifying a treaty.

From a moral standpoint, the comparative argument is the proverbial slippery slope. Should we really take pride in the fact that our human rights record is better than those of notably repressive governments? Or even when comparing the U.S. with other countries that do reasonably well on human rights, should we celebrate the fact that the U.S. is better even when children within our borders go hungry at night, are subjected to various forms of abuse and exploitation, or suffer other rights violations? The answer is obviously no.

Even though many children are able to realize their rights and develop to their fullest potential in the United States, millions still suffer various violations of their rights. Ernest Hemingway identified the right comparison years ago when he wrote, “There is nothing noble in being superior to your fellow man; true nobility is being superior to your former self.”

As the U.S. government and advocates draw lessons from the ICCPR review, and as the Obama Administration and Senate contemplate action on other human rights treaties (including the CRC, CEDAW, and CRPD), the task should be to identify the steps necessary to ensure that we end up better than we are today.

 

 

Human Rights and Economic Reform

Co-editor Cynthia Soohoo, just returned from Geneva, recommends an article in The Nation:  Economic Reform is a Human Right:

In a recent article in The Nation, Radhika Balakrishnan, Executive Director of the Center for Women’s Global Leadership at Rutgers and James Heintz, Associate Director, Political Economy Research Institute at the University of Massachusetts illustrate how recognition of economic and social rights can have a profound impact on economic policy in the U.S.  In particular, they argue that economic and social rights can provide assessment tools and a blueprint for development of economic policies.

As she has in other work, Professor Balakrishnan focuses on the implications of the human rights baseline requirement "that the state should use the 'maximum of its available resources' to ensure the full realization of [ESC] rights," observing that this has "enormous implications for how budgets are set and how public funds are used." 

A more in-depth treatment of these issue appears in Economic Policy and Human Rights: Holding Governments to Account,  by Radhika Balakrishnan and Diane Elson (Zed Books 2011).

Professor Sarah Cleveland Nominated to UN Human Rights Committee

Columbia Law School reports that the U.S. Government has nominated Professor Sarah Cleveland to membership in the UN Human Rights Committee.  Though she is well-versed in all aspects of international law, much of Professor Cleveland's writing has focused on human rights and international norms in the U.S.  Among her articles is the frequently cited and foundational work Our International Constitution, 31 YALE J. INT’L L. 1 (Winter 2006). 

The Human Rights Committee examines state parties' compliance with the International Covenant on Civil and Political Rights.  If elected as a Committee member by the parties to the Convention, Professor Cleveland would serve a four-year term.  The election will take place on June 24 in New York. 

On South Africa's Human Rights Day: Human Rights and Social Movements

South Africa's Human Rights Day and the International Day for the Elimination of Racial Discrimination -- March 21, commemorating the Sharpesville Massacre -- present an occasion to reflect on the relationship of human rights to social movements in the U.S.  The role of social movements in U.S. constitutional change and rights expansion has attracted considerable attention from prominent legal scholars such as William Eskridge and Reva Siegel.  The role of social movements in promoting and expanding human rights in the U.S. has garnered attention of scholars from a range of fields, including anthropology, sociology, history and, somewhat more recently, law.  It is commonly acknowledged that human rights norms are effective organizing tools, and much of the social science literature has focused on that aspect of human rights.  However, there is certainly room for legal scholars, in particular, to focus greater attention on how that organizing capacity translates into law and policy changes.

Important multidiciplinary works examining social movements and human rights in the U.S. include Human Rights in the United States: Beyond Exceptionalism, edited by Shareen Hertel and Kathryn Libal (2011), which addresses topics ranging from post-disaster organizing to welfare rights to domestic violence.  The recent Human Rights in Our Own Backyard: Injustice and Resistance (2013), edited by William Armaline et al., addresses human rights and social movements from the perspective of  sociology.   An earlier work, Bringing Human Rights Home (2007), edited by Cynthia Soohoo, Cathy Albisa and this blog author (2007) collects both first-hand and academic accounts of social movements and human rights in the U.S.  Some of the campaigns described there, such as the campaign of the Coalition of Immokalee Workers for fair wages, are ongoing; the website of the National Economic and Social Rights Initiative, nesri.org, provides more recent accounts of these efforts.  In another important study, legal anthropologists Mihaela Serban, Sally Merry, Peggy Levitt and Diana Yoon examined a local human rights initiative in Law from Below: Women's Human Rights and Social Movements in New York City, 44 Law & Society 101 (2010). 

In the legal literature, the most prominent recent contributions have focused on social movements in the origins of human rights norms, with several scholars debating the provenance of human rights.  Professor Jenny Martinez, in her book The Slave Trade and the Origins of International Human Rights Law (2013), looks to the abolition movement as a source of international law in the service of rights.  Samuel Moyn, in contrast, argues in The Last Utopia (2010) that the international human rights movement first emerged in the 1970s.  Philip Alston, in Does the Past Matter? On the Origins of Human Rights, 126 Harv. L. Rev. 2043 (2013), argues that there are many sources of human rights and that no linear examination can successfully identify the components and origins of these ideas.

While this level of attention from serious scholars is certainly welcome, the Alston- Martinez-Moyn debate does not engage with the question of how social movements in the U.S. do and can use human rights for social change -- an inquiry that Human Rights Day invites.  Readers, have I missed a good resource on social movements and human rights?  Please help by commenting below and sharing recommendations of studies and legal literature on this issue!  

   

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Seeds of Change in Human Rights Acceptance

Several cities have issued proclamations declaring themselves to be Human Rights Cities.  Among the cities making such declarations are Boston; Eugene, Oregon; Pittsburgh; Seattle; and Washington D.C.   In the case of Eugene, the Human Rights Commission was instructed “to embrace the full range of human rights as enumerated in the Universal Declaration of Human Rights.” While other cities and states have not formally declared themselves human rights locations, many jurisdictions have human rights commissions and have been guided by human rights principals in decision-making.  Vermont, for example, enacted universal healthcare as a human right.  As Martha Davis discussed in yesterday’s post, Salt Lake City implemented housing for the homeless on a human rights platform. 

Major advancements in providing for basic human needs are not necessarily related to whether or not the location has declared itself a Human Rights City or State.    But the declarations ignite discussion, as does the empowerment of a city or state’s human rights commission.  As with the civil rights movement, the human rights discussion is seeping into consciousness for those cities who began the discussion through public acknowledgement of fundamental human rights.

In Boston last week, Mayor Marty Walsh refused to march in the city’s St. Patrick’s Day Parade.  Embracing a civil and human rights platform, the Mayor had for weeks attempted to broker negotiations that would have permitted MassEquality members to march in a parade that has excluded them for twenty years.  The issue of the groups’ right to march had been the subject of a 1995 US Supreme Court decision.  

As Mayor Walsh noted, negotiations failed over five letters:  LGBTQ.  The parade organizers, Allied War Veteran’s Council, a small veterans' organization, would grant MassEquality a place in the parade only if the marchers and their banner made no reference to LGBT or Q.  This pocket of equality resistance may be the last public vestige of homophobia in the first state to enact marriage equality through court decision.   The Allied War Veteran Council equality resisters speak without  indication of broad based community support.  South Boston may be best remembered for its resistance to school integration during the 1970’s.  But leadership and community attitudes change over time and eventually equality can become the accepted norm.  For both the civil and human rights movements, major public events created change, for Boston the norm began its shift only after major court decisions and, in the case of race, years of enforcement monitoring.  Cultures can change even if in fits and starts. Human rights can trump despite eruptions of ongoing resistance.

This year the famed South Boston St. Patrick’s Day Breakfast was hosted by Massachusetts state Senator Linda Dorcena Forry, who happens to be a woman of color whose district includes South Boston.   Next year we expect to see MassEquality members marching in the St. Patrick’s Day Parade.      

Mr. Becker (the Mayor of Salt Lake City) Goes to Geneva

The U.S. delegation to the recent UN review of U.S. compliance with the ICCPR included an unusual member: Mayor Ralph Becker of Salt Lake City, Utah.  In the recent past,  U.S. delegations have consisted of federal representatives from, for example, the Department of State and the Department of Justice.  That makes sense, since the federal government is the sovereign that is obligated to ensure compliance with international treaty norms.  So what was Mayor Becker doing  there?

As reported from Geneva by Eric Tars of the National Law Center on Homeless and Poverty, a major topic of the Committee's questioning concerned the criminalization of homelessness in the U.S.  While U.S. officials offered vague assurances that they were working on the issue, Mayor Becker testified concretely concerning Salt Lake City's progressive policy of building housing rather than resorting to criminalization, an approach which has reportedly reduced homelessness by 75%.

Mayor Becker's testimony to the Human Rights Committee hints at the rising interest of local governments, both in the U.S. and internationally, in developing policies informed by human rights.  In addition to its homelessness policies, the Salt Lake City Human Rights Commission website also links to excerpts from the Universal Declaration of Human Rights and the Mayor readily embraces human rights approaches.  While the prime example of local engagement with international norms in the U.S. remains San Francisco's adoption of CEDAW, there are a growing number of other models.  For example, cities like Chicago, have pledged to hold themselves to the standards of the Children's Rights Convention in adopting local policies.  The Columbia Human Rights Institute's excellent report titled Bringing Human Rights Home: How State and Local Governments Can Use Human Rights to Advance Local Policy provides a roster of  relevant case studies of such local initiatives.

It's easy enough for U.S. cities and other localities to offer examples of successful policies and engage with human rights reviews through shadow reports or even as members of official federal delegations.  But as the Human Rights Committee observed in Geneva, a few successful local models are not enough to satisfy the comprehensive federal obligations under the ICCPR. 

At the same time, even localities that have embraced human rights norms are rarely under any enforceable obligation to observe those norms.  Some U.S. cities have joined the Human Rights Cities movement and touted their commitment to human rights, yet status as a  Human Rights City doesn't require any external assessment or review of local processes.  Further, the UN itself doesn't reach localities in any formal way.  For example, when the UN Special Rapporteur on the Right to Water and Sanitation intervened in Sacramento, California, to press for recognition of the rights of a homeless community there, it was a rare instance of international involvement in local policymaking.  But even then, the Special Rapporteur had no legal mechanism to invoke, but could simply highlight Sacramento's negative example on the international stage. 

As local governments become more active internationally, there is an opportunity to learn from the models that they generate, both positive and negative.  Mayor Becker's testimony demonstrates the value of shining a light on local successes.  But without any federal mechanism for generalizing the successful policies and without any regular process for external scrutiny of local compliance with human rights norms, any progress on expanding human rights protections may be ephemeral.  Mayor Becker's trip to Geneva should prompt us to consider whether there are new and better ways to engage localities directly in the full range of international human rights mechanisms.

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Domestic Violence Survivors and Board of Immigration Appeals

Co-Editor Sital Kalantry addresses the difficulties that domestic violence survivors encounter when attemtpting to fit into a classification under which they might find relief through the Board of Immigration Appeals Process.

 The Jury is Out:  Do the new Board of Immigration Appeals’ Decisions Give Victims of Domestic Violence a Stronger Basis to Claim Asylum?

 by Sital Kalantry

The Board of Immigration Appeals on February 7, 2014 released a twin set of decisions—Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014) and -,  Matter of W-G-Rec. 20 26 I&N Dec.20 (BIA 2014)— in which it repackaged what constitutes a “particular social group.”  In order for someone to obtain asylum, she must prove that she has a well-founded fear of persecution based on religion, nationality, race, political opinion, and particular social group.   Survivors of domestic violence must fashion themselves into a “particular social group” to be considered for asylum since gender is not included as a separate category.  Prior to these decisions, a group such as “married Guatemalan women unable to leave their relationships” would be considered a “particular social group,” if it can be shown that (1) is composed of members who share a common immutable characteristic, (2) is defined with particularity, and (3) has “social visibility.”  The Board’s recent decisions changed the requirement of “social visibility” to “social distinction.”

 Many have pointed out that victims of domestic violence found the “social visibility” requirement difficult to satisfy, because such victims are not typically clearly visible in society.  (See for example, Fatima Marouf, “The Emerging Importance of Social Visibility in Defining Particular Social Group, 27 Yale Policy Review 47(2008)).  In adopting the “social distinction” concept, the Board rejected the UNHCR and other advocates’ position that the Board return to the test it articulated in 1985 in Matter of Acosta, which included only the immutable characteristics requirement.  In other words, they wanted the Board to remove the “particularity” and “social visibility” requirements all together.   In response to the new Board decisions, the National Immigrant Justice Center recently issued a statement saying that “the new BIA decisions undermine U.S. obligations to protect asylum seekers.” .

 Claiming asylum for domestic violence survivors is like putting a square peg in a round hole.  The standard for asylum used in the United States comes from the 1951 UN Convention Relating to the Status of Refugees, which never anticipated these kinds of claims.   Acknowledging that domestic violence should entitle someone from asylum, in 2000, the DOJ proposed regulations that articulated clearer asylum standards. However, to date no final regulations have been released.

 Whether or not the standards articulated in the new BIA decisions will benefit victims of domestic violence is not entirely clear, but there is at least one success story.  The Cleveland immigration court applied the new standards to grant asylum to a domestic victim. The opinion entered on February 24, 2014. To view the Cleveland case click here. The truth is that there will continue to be inconsistent immigration judge decisions and those domestic violence victims who appeal will be placed in limbo by the Board until the U.S. government articulates a coherent policy. 

 

Challenging the Notion of "Property" Interests in Civil Protection Order Enforcement

For those of us promoting a human rights perspective in United States cases involving domestic violence, we often revisit Jessica (Gonzales) Lenehan's cases against Castle Rock, Colorado and later against the United States.   For those unfamiliar with the facts of the case, Jessica, a resident of Castle Rock, obtained a protection order restraining her husband from any contact with her.  Jessica was awarded custody and the father had certain rights of visitation with the three young daughters.  In violation of the visitation schedule and other terms of the protection order, Simon Gonzales removed the three girls from their yard and during the following early morning he drove into the police station parking lot and began shooting at the police. The police officers responded in kind.  Simon was killed.  Immediately after the exchange of gunfire, the Castle Rock police found the bodies of the three girls in the truck.  Each was killed by gunshot.

During the ten or so hours that the children were missing, Jessica called the police numerous times.  The police did not take any meaningful measures to find Simon and the girls.  Jessica’s concerns were minimized.  At one point she was told that the children were with their father and would be safe. 

In re-reading the US Supreme Court decision, I was struck again with the odd language used in our US opinions when we discuss enforcement or entitlement to enforcement.  The court found that Jessica did not have a “property” interest in the civil protection order issued by the state of Colorado.  Because she lacked a property interest, Jessica had no right to expect enforcement despite the mandatory enforcement language of Colorado’s civil protection order statute. 

Property in this context is anathema to a human rights perspective.  Much of US legal culture revolves around the notion of “property."  The protection of land and money is embedded in our legal system.  In this instance, to reduce the concept of police protection where a valid court order has entered to a “property “ interest must seem odd to foreign observers. More accurate language is that the state made an agreement with Jessica. The agreement was made clear through the language of the enforcement statute.  That agreement demands mandatory arrest when a violation of a protection order is known to the police.  Even the language of a state "promise" on which the mother relied is more descriptive of the legal dilemma.

Keeping children and their mothers safe involves basic human rights.  Protection by the state and enforcement of orders intended to keep the protected parties safe, are fundamental human rights.   Women and children being viewed as “property” is a concept that US based domestic violence and child advocates have been confronting for well over a century and half.  The very language of child “custody” connotes parental ownership rights. 

It is difficult to eliminate the concept of ownership over women and children while our language continues to reflect jurisprudence based the “property“ interests of its citizens.  The language of the Inter-American Human Rights Commission report in addressing the traumatic events suffered by Jessica is focused on her needs as a human being, particularly as a parent.  By contrast the language of the Inter-American Commission shifts the  legal language from one of abstract and artificial constructs of “property interests” to human rights' language of restoring dignity and addressing the anguish of a mother who daily endures unspeakable pain.

 

 

 

Expanding the US Right to Counsel

Co-Editor Lauren Bartlett discusses the growing US movement to expand the right to counsel beyond felony cases and limited civil areas.  The movement, often referred to as Civil Gideon demands expansion of the legal counsel in compliance with the International Covenent on Civil and Political Rights.  In part the Covenant demands that "all persons shall be equal before the courts and tribunals."  (Art. 14) The right to civil counsel is a growing movement of advocacy and literature that recognizes the need for counsel in order to meaningfully secure basic human needs.

Expanding  the  Right to  Counsel  in  the  U.S.

By Lauren E. Bartlett

Last year, institutions across the U.S. celebrated the fiftieth anniversary of Gideon v. Wainwright, 372 U.S. 335 (1963) with events, reports, and more. After the excitement over the anniversary of this groundbreaking right to counsel decision died down, what became clear, as it has after past anniversaries, is that there remains a right to counsel crisis in the U.S.  The right to counsel is not being fulfilled for many low-income people, not only in the criminal justice system, but also in civil cases and immigration proceedings in the U.S.   Today, public defenders offices across the U.S. cannot keep up with demand and individuals are not getting the defense they need, which exacerbates our mass incarceration problem.  Although the right to counsel for juveniles charged with serious crimes was established soon after Gideon, many youth are not able to exercise the right or are pressured to waive the right.  At other times counsel is appointed so late in the process that the right becomes meaningless.

 Tens of thousands of immigrant children may face deportation proceedings in the coming year, there is no right to counsel for immigrants in detention (but see Franco-Gonzales v. Holder).  Moreover, there has been a growing movement towards a civil right to counsel, or Civil Gideon, with growing evidence that providing counsel to low-income families in civil cases, such as housing and child custody cases, provides extraordinarily better outcomes for the low-income individuals involved and saves courts a good deal of time, frustration, and money. Many possible solutions to this crisis have been proposed, and a couple of local jurisdictions have taken it upon themselves to try out new ideas. Yet, individually and structurally, barriers to the right to counsel crisis persist.

In an effort to charge the conversation and use international pressure to push the movement forward, U.S. advocates have begun using the human rights framework to advocate for the expansion of the right to counsel in both the misdemeanor criminal and civil contexts. Human rights law provides for more expansive protections for access to justice.  For example, human rights law has been cited as requiring the right to counsel to apply for certain cases for civil litigants, individuals detained at police stations, and immigrants in detention. Although much of human rights law is not directly enforceable in U.S. courts, advocates can make policy and comparative law arguments using human rights that can be quite persuasive to some judges and policymakers.

As Risa Kaufman mentioned in her post earlier this week, this is the year of U.S. human rights reviews at the U.N. and access to justice is key to the discussion.  Here at home, U.S. advocates have the chance to directly engage with the U.S. government on how access to justice can help promote the implementation of United States human rights obligations and commitments.  On April 1, 2014, the Local Human Rights Lawyering Project at the Center for Human Right and Humanitarian Law at American University Washington College of Law will host a Civil Society Consultation with the U.S. Government on Access to Justice. This is the first-ever consultation with the U.S. government focusing on access to justice in the human rights context.  The consultation will allow U.S. advocates, as well as persons directly affected, to directly address U.S. government officials both regarding the upcoming Universal Periodic Review and the review by the Committee on the Elimination of All Forms of Racial Discrimination. By the time the sixtieth anniversary of Gideon rolls around, we hope to move leaps and bounds closer to fulfilling our human right of access to justice for all.  This consultation provides a unique platform to launch us towards that goal.  Please join us in D.C., or at least tune into the live webcast of the consultation.  All are welcome.

UK Court Dismisses Human Rights Challenge to Housing Benefit Cap

It has been more than a decade since advocates challenged New Jersey's "Child Exclusion" in state court arguing in an amicus brief in Sojourner A. v. New Jersey Dep't of Social Services that the denial of welfare benefits to children born on welfare violated human rights.  While dismissing the plaintiffs'  domestic law claims, the New Jersey Supreme Court gave only glancing attention to the merits of the human rights argument, concluding in a footnote that international law claims of birth order discrimination failed under its analysis.

Recently, the UK Court of Appeal considered a similar case, S.G. v. Secretary of State for Work and Pensions.  In the UK case, the challenged policy was a general cap on housing benefits, more akin to the family cap policy challenged in Dandridge v. Williams than the Child Exclusion policy at issue in Sojourner.  However, the UK litigants challenged the housing cap on the grounds that it particularly discriminated against women, with special burdens on single mothers facing domestic violence.  As in Sojourner, the plaintiffs raised human rights concerns under the Children's Rights Convention.

Unfortunately, the outcome of the UK case tracked the results in both Dandridge and Sojourner.  The court found that the government's actions were rational, and that human rights law did not create any affirmative right to housing.  An excellent blog by Rosalind English on the UK Human Rights Blog provides more details.  As this case highlights, direct enforcement of ESC rights norms through litigation continues to be an uphill battle on both sides of the Atlantic.

 

Clearing the Slate for Trafficking Victims

In today's post, Co-editor Cynthia Soohoo, Director of the International Women's Human Rights Clinic at CUNY Law School, reports on new and promising approaches to address the criminalization of trafficking victims in the US, while also suggesting that more resources should be focused on prevention.  Additional information on the international human rights obligations relating to trafficking is available from the UN Special Rapporteur on Trafficking in Persons, Especially Women and Children,

By Cynthia Soohoo

In late February, the International Women’s Human Rights Clinic at the City University of New York,  released a report on the criminalization of victims of sex trafficking.

The clinic’s work on this issue started with a collaboration with the Legal Aid Society’s Trafficking Victim’s Advocacy Project to represent clients under a groundbreaking 2010 New York law that allows individuals who have been trafficking into the sex trade to vacate prostitution related convictions.  Since 2010, 15 other states have passed similar vacatur laws.

Human trafficking is a severe human rights abuse, and because prostitution is illegal, trafficking into the sex trade raises the additional threat that victims will face arrest and prosecution for acts they were forced to commit.   Criminal convictions can continue to haunt victims long after a trafficking situation has ended preventing them from education, employment and housing and forcing them to live with the stigma of criminal convictions.

The report discusses the impact of the NY vacatur law and best practices for states thinking about adopting similar laws.

The report also looks at why individuals trafficked into the sex trade end up with criminal convictions in the first instance.  The report describes how policing policies often focus on high rates of prostitution arrests without adequate training or resources to identify sex trafficking victims. Faced with high volumes of defendants and inadequate resources, the courts and defense attorneys face tremendous pressure to move low level offenses quickly, often resulting in guilty pleas before there is adequate opportunity to identify trafficking victims.

Human right standards recognize that governments have an obligation to protect trafficking victims and to ensure that they are not criminally penalized for acts they were forced to commit. 
It is promising to see new approaches, like the vacatur laws, to address the criminalization of trafficking victims.  However, the report discusses the need for greater emphasis on and resources for providing services and assistance to trafficking victims before arrest and outside of the criminal justice system.

Addressing the State's Failure to Provide Post Conviction Justice

Co-Editor David Singleton writes about the detention of Tyra Patterson for the past 19 years after she fled the scene of a crime which ultimately ended in a killing.  Despite having made efforts to stop the crime and despite overwhelming evidence that Tyra was not involved in the killing, Tyra remains incarcerated.  Under Article Ten of the Universal Declaration of Human Rights, “Everyone is entitled in full equality to a fair and public hearing…”. Likewise, the state is obligated not to tolerate rascism under the International Convention on the Elimination of All Forms of Racial Discrimination.  The author discusses defense counsel’s racism in not permitting Tyra to testify  and the police deception that deprived Tyra of a fair hearing. The case raises the issue of the state’s obligation to do justice post-conviction where the state is informed of  substantial new evidence including the ineffectiveness of counsel in the lower court..  

By David Singleton

For the past 19 years, Tyra Patterson has been incarcerated in the Ohio prison system for aggravated murder and robbery, crimes Ohio’s former Attorney General Jim Petro says she likely did not commit.  Tyra’s saga began during the early morning hours of September 20, 1994, when she, at age 19, and a friend found themselves at the scene of a robbery in Dayton, Ohio.  What began as a robbery of five young women sitting in a car became a murder when one of the robbers  shot fifteen-year old Michelle Lai in the head.  Tyra did not know three of the robbers and only knew the fourth casually.  Playing the role of peacemaker, Tyra actually tried to stop the robbery but left with her friend after the shooter refused.  After hearing a shot fired, Tyra and her friend ran back to her apartment where she called 911 to get help for the shooting victim. 
Tyra did make a mistake that night.  On her way back to her apartment, before the shot was fired, she saw a necklace lying on the ground.  Thinking it was pretty she picked it up, even though she knew it had been thrown there by one of the robbers, who had grabbed it from one of the victims. 

After hearing that someone had been shot, Tyra panicked and flushed the necklace down the toilet because she worried that it might implicate her in the robbery and shooting.
Because witnesses identified Tyra as one of the people at the scene, the police questioned her later that day.  Most of the two-hour interrogation was not recorded.  During the un-recorded portion, the lead Detective yelled at Tyra, telling her she was lying when she told the truth about picking the necklace off the ground. Finally, after the detective told Tyra that it would better to go down on robbery by admitting she grabbed the necklace from one of the victims than it would be to get convicted of murder, Tyra confessed to robbery, a crime she did not commit.  The detective then charged her with both robbery and murder, under the  felony-murder  doctrine.

At trial, Tyra’s defense was ineffectual.  Her lawyers refused to introduce thea  911 call she had made  police to the crime, and discouraged her from testifying because she , in their words, “talked like she was from the ghetto” and would not be understood by the jury.  Not surprisingly the jury convicted her.

The Ohio Justice & Policy Center has been handling Tyra’s case for over a year in an effort to get her clemency.  In addition to the 911 call, which Tyra made from her home as the actual robbers fled to a motel to smoke crack and have sex, the following evidence points strongly to her actual innocence:  (1) one of the victim’s testimony at the trial of one of the co-defendants that it was the co-defendant, not Tyra, who robbed one of the victims of the necklace;  (2) the affidavits of three of Tyra’s co-defendants  and two  witnesses, all of whom corroborate Tyra’s innocence claim; (3) the results of polygraphs taken by Tyra, her four co-defendants and her friend showing that Tyra is telling the truth when she says that she did not participate in the robbery, tried to intervene on the victims’ behalf, and came into possession of a necklace by picking it up from the ground.  After hearing the 911 call,  six of the trial jurors submitted affidavits stating that they would likely not have convicted Tyra had that evidence come out at trial.

To learn more about this case and how you can help click here, where you can read all of the case documents that have been filed with the Parole Board as well as listen to Tyra’s 911 call.  To sign Tyra’s change.org petition click here.    You may listen here to Tyra talking about her false confession.

 

Access to Justice and the Bringing Human Rights Home Challenge

Writing from Geneva, Co-Editor Risa E. Kaufman, Executive Director, Columbia Law School Human Rights Institute, surveys new data that paints a devastating picture of lack of access to civil justice in the U.S.  Then she spells out the challenge:  how to translate international attention to this issue into progress at home. 

by Risa E. Kaufman

In her post last week, Cindy Soohoo discussed the challenges of coordination for the 80-plus advocates who have converged in Geneva this week for the U.N. Human Rights Committee’s review of the U.S. for its compliance with the International Covenant on Civil and Political Rights (ICCPR). Another challenge for the U.S. advocates gathered in Geneva is figuring out what to do when they return. How do we translate success in Geneva into real change at home?  It’s a challenge I am puzzling over as I work the halls of the U.N.’s Palais Wilson to talk about access to justice concerns in the U.S.

The just-released World Justice Project’s 2014 Rule of Law Index places the United States towards the bottom of the list of industrialized nations on access to justice, especially civil justice issues. The National Center for Access to Justice’s recently launched Justice Index provides a more detailed picture of the situation on the ground and across the country, at http://www.justiceindex.org/.

Mindful that the civil justice gap disproportionately harms racial minorities, immigrants and women, prior to this week’s in-person review, the U.N. Human Rights Committee asked the U.S. to provide information on what steps it’s taken to improve legal representation in civil proceedings for litigants belonging to racial, ethnic, and national minorities, and for victims of domestic violence. 

This isn’t the first time that a human rights treaty body has questioned the United States’ record on access to justice. In 2008, the U.N. CERD Committee expressed concern over the disproportionate impact the civil justice gap has on vulnerable communities in the U.S. and recommended that it allocate sufficient resources to remedy the gap.

In response to the Human Rights Committee’s concerns over access to justice, the Obama administration is touting its 2010 Access to Justice Initiative, which works within the U.S. Department of Justice, across federal agencies, and with state and local justice systems to increase access to counsel and legal assistance in civil and criminal matters.  I agree, the ATJI is a positive development.  But let’s call it a promising start.  There is much more that the federal government can and should do.

In preparation for this week’s review, a broad group of U.S. civil justice advocates submitted an Access to Justice shadow report to the U.N. Human Rights Committee, suggesting recommendations for the Committee to pose to the U.S. delegation. These include conducting research to analyze the impact of counsel in civil cases, identifying and disseminating state and local “best practices” to improve meaningful access to civil legal services, and supporting state-level efforts to establish a right to counsel in certain civil cases.  In addition, the report urges the Committee to recommend that the U.S. ease restrictions and increase funding for the Legal Services Corp, and enact legislation establishing a right to counsel in federal civil cases implicating basic human needs, and a right to appointed counsel for detained immigrants facing deportation.  The report was widely endorsed. 

At the end of this month, the Committee will issue “concluding observations” from the review and recommendations to the U.S. government for ways in which it can improve compliance with the ICCPR.  Should the Committee voice concern over the civil justice gap in the U.S. and adopt some of the   recommendations in the Access to Justice shadow report, it will further develop the international record on the U.S.’s crisis in unmet civil legal needs.  Next comes the CERD review, scheduled for August 2014.  Groups are already gearing up to inform the CERD Committee of growing disparities in access to justice.  And then comes the UPR in 2015. 

This all builds momentum and brings critical attention to access to justice concerns.  The trick, of course, is translating the recommendations from Geneva into progress on the issue back home.  The charge for access to justice advocates is to turn what might read as “U.N. speak” into language that persuades state and federal legislators, judges and policy makers to stand by the U.S.’s international commitments to uphold civil and political rights, including access to justice for all.  It’s the case for each issue that advocates are raising in Geneva this week, and the challenge for us all. 

 

 

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Rights Advocates See 'Access To Justice' Gap In U.S.

The Wrongly Imprisoned Are Often Left Without their Dignity Restored

Co-Editor Brian Howe, staff attorney with the Ohio Innocence Project, writes about the difficulties faced upon release by the wrongfully convicted who are often left without funds, without housing and without work.  Most damaging of all may be that they leave without either the state's apology and compensation.

By Brian Howe:

Thank you to Martha Davis and Margaret Drew for inviting me to be a co-editor of this blog. I am honored to participate. 

The New York Times recently published an in-depth article exploring at the aftermath of exonerations.  In post-conviction work, it is tempting to see an inmate's exoneration and release as the end of the story.  To the public, the release is a comforting conclusion to (and maybe distraction from) otherwise uncomfortable narratives about our legal system.  Even for exonerees , the moment of vindication and release may have been the sole focus of much of their adult life.  Everyone wants a Hollywood ending, and you couldn't script it better than the hero fighting injustice and winning, against the odds. Reuniting with family and loved ones, ready to live a long and happy life.  Roll credits.

As the Times reports,  “A sprawling literature exists describing the challenges of re-entering society after serving time in prison, an experience that is marked by depression and disorientation, and is hard enough for those who have been rightfully punished for their crimes. But what about those who are wrongly sent away as the victims of mistaken identity or prosecutorial error? The justly incarcerated are likely to have access to a battery of post-release services like health care, housing aid and social-work assistance, but those who should not have been locked up in the first place are rarely given treatment to address their special needs, and are often left to fend for themselves, finding the cure for their “disease” in one another’s company.”

Credit the Times for looking at this neglected aftermath of an exoneration, for exploring and exposing what happens to many exonerees after the cameras and reporters have left.  Some exonerees are fortunate enough to have family support, including housing.  Few have any marketable job skills.  The services provided by local innocence projects, along with larger programs like the article's Jeffrey Deskovic's, are commendable and necessary, particularly in providing the opportunity for the exonerees to meet and support each other.  But in the long term, it's not enough.  The Times exposes a critical problem:

”It is widely assumed that exonerated inmates can simply make a claim against their jailers and walk away, like Mr. Deskovic, financially set for life. But only 29 states have laws that permit the wrongfully imprisoned to sue for compensation, and even in those states, the cases often languish in court for years.”

“In New York, for example, only prisoners who contested the charges against them can sue for damages, although the state attorney general, Eric T. Schneiderman, recently proposed allowing people who had confessed or pleaded guilty to sue.”

While it is good to see an agent of the state creating a path for remedy, a fundamental question is why is an exoneree required to sue in order to have a means to support himself with dignity.  From a human rights perspective, the state has an obligation to ensure that a wrongfully convicted inmate is provided with adequate financial, mental health and employment resources.  Simply opening the cell door is insufficient.   The state’s acknowledgment of its role in the wrongful conviction would serve as a solid foundation for restoring the exoneree to the maximum extent possible,   The state cannot do justice to these men and women while disowning or disregarding the damage done and then placing the burden on the exoneree to sue for compensation, where compensation is permitted.  A real Hollywood ending for exonerees requires that all of them have a fair and universal path for just compensation.

Maryland Moves Toward Ending the Practice of Shackling Pregnant Inmates

by Leigh Goodmark and Lisa Piccinini

[Editor's Note:  In the blog below, Professor Leigh Goodmark and Lisa Piccinini report on their current advocacy work to move Maryland toward greater protection of pregnant inmates from shackling during childbirth.  U.S. policies of shackling pregnant inmates will be before the UN Human Rights Committee next week as it reviews US compliance with the ICCPR.  Two of the Shadow Reports submitted on this topic are available here  and here.  Perhaps this timely international attention can contribute to the momentum in Maryland.]

Leigh Goodmark, Professor, University of Maryland School of Law, and Lisa Piccinini report:

The Gender Violence Clinic at the University of Maryland Francis King Carey School of Law is teaming up with the ACLU and non-profit Power Inside to advocate on behalf of a bill that would protect pregnant inmates from shackling during labor, delivery, and postpartum recovery. The bill, entitled the “Healthy Births for Incarcerated Women Act,” is co-sponsored by Delegate Mary Washington and Senator Jamie Raskin. Eighteen other states have passed similar legislation, and it is this bill’s second round in Maryland after significant amendments weakened the bill last year.

The Maryland bill prohibits the use of physical restraints on pregnant inmates during labor and delivery unless such restraints are deemed necessary by the medical professional caring for the inmate. There is also an exception allowing such restraints, including during postpartum recovery, in instances where the correctional facility has made an individualized determination that restraints are necessary for safety and security reasons.

During hearings in the both the House and Senate committees, medical professionals agreed that a woman in labor or delivery poses minimal flight and safety risks for the obvious reason of being physically incapable of much movement.  Medical professionals also noted that restraints themselves pose significant health risks, including limiting movement during labor, which is necessary for the health of the mother and child, and increasing the chances of falling. 

Proponents for the bill argue that it would help protect women inmates, the majority of whom are incarcerated for non-violent offenses, from suffering unnecessary trauma.  The Gender Violence Clinic testified that shackling pregnant, delivering, and postpartum inmates could be particularly devastating to the large number of inmates who have suffered previous abuse. In particular, using restraints to limit a woman’s control of her own body during the uniquely intimate process of birth can both dehumanize the individual and exacerbate previous trauma she has experienced, such as Post Traumatic Stress Disorder and depression.

The bill also requires correctional facilities to develop policies regarding the use of physical restraints on a pregnant inmate in and outside of the facility, as well as to report to the Governor each instance where such a restraint is used.  This reporting requirement addresses a point of contention—that is, how often pregnant inmates are actually shackled.  The Gender Violence Clinic submits such shackling is underreported because inmates do not believe it is illegal.  Our contacts with hospitals around the state made it clear that inmates in labor and delivery are routinely shackled during their hospital stay.  The bill’s reporting requirement will help to illuminate how often this practice occurs and under what circumstances.

The bill has passed out of Judiciary Committee in the House, and is currently being considered in the Judicial Proceedings Committee in the Senate.  For more information, or to sign the Statement of Opposition, please visit http://daretobepowerful.com, or check out Moms Rising for a summary of similar legislation in other states.

 

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Md. Bill Would Limit Shackling of Pregnant Inmates