Friday, May 30, 2014
Continuing a theme discussed by Hope Metcalf in yesterday's post, the distinguishing hallmark of human rights activism is restoring and sustaining human dignity, individually and collectively. Maya Angelou spent her life learning and teaching us how to empower ourselves by restoring our own sense of self. Ms. Angelou restored a sense of well being to us through her many artistic talents. Her music, dance, poetry and prose soothed and inspired us. Her poem Phenomenal Woman is no doubt one of the most widely circulated and read inspirational works for women who struggle to restore gender identity and gender pride. Ms. Angelou's account of walking protected, as if unseen, through Watts during race riots and observing the chaos with a detached eye gives us an account of a community in distress that could be told only by someone who walked without judgment and who permitted us into her heart in sharing her own distress and grief. Yet Ms. Angelou's influence was not limited to members of her own gender and race.
Ms. Angelou's deep, unique voice reached the hearts of men and women of all races because she spoke of universal longings and needs.
Ms. Angelou spoke of her struggle to restore herself after being raped at a young age. The young girl who did not speak for five years following this horrible experience restored her own health and dignity with the help of her mother, who told her that Maya (then Marguerite) was the most interesting woman her mother knew. Maya used her voice to lead others out of darkness into light and hope.
How to find my soul a home
Where water is not thirsty
And bread loaf is not stone
I came up with one thing
And I don't believe I'm wrong
Can make it out of here alone.
Thursday, May 29, 2014
BY: Hope R. Metcalf, Lecturer, Yale Law School
This week’s ruling in Hall v. Florida was welcome evidence that the U.S. Supreme Court is in the business of policing its own rulings to protect the most vulnerable criminal defendants.
The last decade has seen a cascade of decisions banning the death penalty for people with intellectually disabilities and juveniles and limiting juvenile life without parole (JLWOP). These are the same decisions that have signaled openness on the part of the Court—or at least by Justice Kennedy—that “[t]he opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.” Equally encouraging is the Court’s repeated reliance on an individual’s dignity as a touchstone for Eighth Amendment analysis. As Vicki Jackson and others and others have observed, the concept of dignity provides one point of contact—albeit slight—between U.S. jurisprudence and international human rights norms.
The Court again sounded theme of dignity in Tuesday’s decision. Writing for a 5-4 majority, Justice Kennedy declared that that “[t]he Eighth Amendment’s protection of dignity reflects the nation we have been, the nation we are, and the nation we aspire to be. This is to affirm that the nation’s constant, unyielding purpose must be to transmit the Constitution so that its precepts and guarantees retain their meaning and force.” By that logic, Florida’s formalistic interpretation of the 2002 decision of Atkins v. Virginia, which had banned the execution of intellectually disabled individuals, could not stand.
Petitioner Freddie Lee Hall, who had an IQ test of 71 and a documented history of disabilities, was just shy of Florida’s statutory cutoff of 70 for exemption from the death penalty. Pointing to established clinical guidelines that mental retardation is to be judged on several different bases, the Court held that “Freddie Lee Hall may or may not be intellectually disabled, but the law requires that he have the opportunity to present evidence of his intellectual disability, including deficits in adaptive functioning over his lifetime.”
The Hall decision should stand as a warning to state lawmakers who would use legislative maneuvers to shirk compliance with the Supreme Court’s evident discomfort with the excessively punitive nature of the U.S. criminal justice system. Starting with Roper and continuing with Miller and Graham, the Court has reaffirmed that children – even those convicted of serious crimes – deserve special consideration and cannot be subjected to the death penalty, life without parole for non-homicide crimes, or mandatory life without parole for any crime. Yet some states—Louisiana, for example—have responded by imposing mandatory sentences of 35 or more years, claiming that such sentences are not “life” and therefore outside the reach of Supreme Court jurisprudence.
By contrast, for the past two years, Connecticut’s bi-partisan sentencing commission has pushed for a new approach to juvenile sentencing that would take Roper, Miller, and Graham to heart. Under the proposed legislation, individuals convicted of serious crimes as young people and serving prison terms of 20 years or more would be eligible for a sentence review after they had served 60 percent of their time. The bill would not have guaranteed release, but would have followed the Court’s admonition that juvenile offenders must have a “meaningful opportunity for review.”
The proposed legislation would address the many failings documented by a report by Quinnipiac’s Civil Justice Clinic and Yale’s Lowenstein International Human Rights Clinic, Youth Matters: A Second Look for Connecticut's Children Serving Long Prison Sentences. The report found that Connecticut’s current sentencing practices—which impose mandatory sentences of 50 years or more on juveniles— to be out of step with international law and other nations’ practices. Interviews with some of the men and women who were convicted as children confirm what Roper teaches: that young people are both less culpable and more capable of change. The report gathered stories of individuals who had made tremendous personal transformations, despite having grown up and spent the majority of their lives in prison.
The bill reflected negotiations by the bi-partisan Connecticut Sentencing Commission and included a wide array of views. Mark Levin, of the conservative think tank Texas Public Policy Institute, praised the bill as "a modest step [that] puts Connecticut's law in this area on firmer scientific and legal ground.” The proposal passed the House almost unanimously but, as the Hartford Courant reported, it ran aground in the Senate, not on the merits or due to popular opposition, but election-year politics. Republicans, in a throwback to the 1990s-era “tough-on-crime” posturing, held the bill hostage with a slew of last-minute amendments to upend recent reforms, including the 2012 repeal of the death penalty.
The Sentencing Commission appears undeterred, according to the Courant article. The Supreme Court’s holding in Hall should give them courage that “the nation’s constant, unyielding purpose must be to transmit the Constitution so that its precepts and guarantees retain their meaning and force.” The “second look” legislation would do just that. Connecticut’s children – and the adults they will become –deserve nothing less.
In recognition of not only teaching excellence but the importance of Human Rights law school clinical work, Prof. Tyler Giannini has been awarded Harvard's Sacks-Freund Excellence in Teaching Award.
Giannini is co-director of the law school's Human Rights Program as well as the International Human Rights Clinic. Among other areas of law, Giannini's work focuses on business and human rights as well as the environment and human rights.
You may read more here.
Wednesday, May 28, 2014
Poor people live shorter lives, substantially shorter in the certain impoverished communities. A recent New York Times article highlighted the significant gaps in life expectancy among different counties in Virginia: “Residents of Fairfax County are among the longest-lived in the country: Men have an average life expectancy of 82 years and women, 85, about the same as in Sweden. In McDowell, the averages are 64 and 73, about the same as in Iraq.”
The poor are less likely to have access to needed health care and more likely to smoke, be overweight, and to live with constant stress, which we now know is harmful to the human body. It is at this critical juncture (as well as others) that public health and human rights meet. As public health professionals focus on the social determinants of health, relatively few approach these issues through a human rights framework or in partnership with human rights advocates. Likewise, human rights activists miss opportunities to partner with, and build upon the work of, public health.
The social determinants of health implicate human rights, and visa versa. And while highly politicized debates swirl around the causes of poverty among adults, everyone ought to be able to recognize that no child chooses his or her place of birth. Yet where and to whom you are born affects access to health care, education, and ultimately life expectancy. And even within the United States, the ensuing differences can mean an additional decade or more of life. Or the opposite.
The Convention on the Rights of the Child (CRC), the most widely ratified human rights treaty in history, requires countries to “ensure to the maximum extent possible the survival and development of the child” (article 6). It also mandates that governments ensure every child is protected from harm and is able to realize his or her rights to health care, education, and an adequate standard of living necessary to enable the child to develop to his or her fullest potential.
The elephant in the room, of course, is that the United States is one of only three countries in the world (along with Somalia and newly independent South Sudan) that have yet to ratify the treaty. But this is not an article about the U.S. government’s approach to human rights treaties or the domestic politics around the CRC. Rather it is call for public health and human rights professionals to build bridges in their work, much of which has the same aims: harm reduction and the well-being of all individuals.
Whether or not progress is made on U.S. ratification of the CRC in the near term, opportunities exist now to use human rights frameworks to help address the root causes of child exploitation and poor health outcomes for children. Similarly human rights advocates can bolster their efforts by drawing on the significant work already done by public health professionals in identifying and addressing the social determinants of health.
The gaps in life expectancy across communities in the United States should compel us to utilize every tool we have. Both human rights and public health strategies can help address these disparities and their root causes.
Tuesday, May 27, 2014
Force feeding at Guantanamo is in the news again. In the space of less than a week between May 16 and May 22, a federal district judge in Washington, D.C. first granted, then reversed, a temporary injunction barring force feeding of Guantanamo detainee Jihad Dhiab. A Syrian citizen, Dhiab has been detained at Guantanamo for 11 years. He was cleared for release to a third country in 2009, but has yet to be relocated. His lawyer informed the press that Dhiab is engaging in a hunger strike because he feels that he has run out of options. The frustrated federal judge Gladys Kessler reversed her original order after being told that Dhiab's condition was deteriorating quickly and that the federal government would not accommodate his wish to be given the tubal feeding at a hospital.
International human rights law is increasingly clear in its condemnation of force feeding under the circumstances at Guantanamo, where prisoners such as Dhiab engage in periodic hunger strikes as a form of political protest for their indefinite detentions. In May 2013, the UN Office of the High Commissioner for Human Rights released a joint statement of the Special Rapporteurs on Health, Arbitrary Detention and Torture, the Working Group on Arbitrary Detention and the Inter-American Commission on Human Rights decrying the continued detention of individuals at Guantanamo as a violation of international law and stating that "it is unjustifiable to engage in forced feeding of individuals contrary to their informed and voluntary refusal of such a measure. Moreover, hunger strikers should be protected from all forms of coercion, even more so when this is done through force and in some cases through physical violence. Health care personnel may not apply undue pressure of any sort on individuals who have opted for the extreme recourse of a hunger strike. Nor is it acceptable to use threats of forced feeding or other types of physical or psychological coercion against individuals who have voluntarily decided to go on a hunger strike."
Building on this UN statement, Physician for Human Rights elucidates the medical ethics of force feeding and the human rights concerns it raises in a fact sheet here.
U.S. law on force feeding continues to develop. When the Connecticut Supreme Court examined a challenge to force feeding in 2012 in the context of an individual hunger strike in a state prison, it concluded that the international human rights law was not sufficiently clear to constitute binding customary international law. But one year later in the context of the Guantanamo detentions, Judge Kessler credited Dhiab’s arguments that the practice of force feeding violated his human rights. According to Judge Kessler’s 2013 ruling: "Petitioner has set out in great detail in his papers what appears to be a consensus that force-feeding of prisoners violates Article 7 of the International Covenant on Civil and Political Rights which prohibits torture or cruel, inhumane, and degrading treatment. In addition, Petitioner cites in detail statements of the American Medical Association, the World Medical Association, the UN High Commissioner for Human Rights, the UN Rapporteur on Human Rights and Counter-Terrorism condemning the force-feeding of detainees. The American Medical Association in a letter to the Secretary of Defense on April 25, 2013, has declared that the force-feeding of detainees violates "core ethical values of the medical profession."
This was dicta. At that time, Judge Kessler did not believe that her court had jurisdiction to address a challenge to the conditions of confinement at Guantanamo. A recent Court of Appeals ruling, however, clears the way for the court to consider in detail the human rights dimensions of force feeding at Guantanamo. As the Dhiab case unfolds -- with videos of the feedings due to be produced by June 13 -- there may be ample reason to squarely address this issue.
For more resources on force feeding and human rights, see the Law Professors' amicus brief filed in Coleman v. Lantz and the book Interrogations, Forced Feedings and the Role of Health Professionals, by Ryan Goodman and Mindy Roseman.
Monday, May 26, 2014
States Resist Efforts to Implement Prison Rape Elimination Act Standards Protecting Youth in Adult Jails and Prisons
By Cindy Soohoo
Many of the most pressing human rights issues in the United States involve rights violations that occur at the state and local level. Despite the federal government’s responsibility to address all human rights violations in the United States (and in some case outside of the United States), as a practical matter, politics and federalism make it difficult for federal authorities to force states to change laws and practices that violate human rights but fall short of constitutional violations.
Although Congress can pass laws to encourage states to end practices that violate human rights, these efforts will be ineffective unless the laws include meaningful incentives for compliance and the federal government is vigilant about enforcement. The U.S.’s efforts to address the incarceration of youth in adult jails in prisons is a case in point.
During the U.N. Human Rights Committee’s (HRC) review of U.S. compliance with the International Covenant on Civil and Political Rights (ICCPR) in March 2014, the U.S. was strongly criticized for state laws that permit, and in some cases, require that youth (defined as individuals under 18) be tried and criminally punished as adults. Human rights standards recognize that youth are different than adults and should not be subjected to adult criminal justice systems that fail to take their age and the goal of rehabilitation into consideration. ICCPR Article 10 also explicitly prohibits incarceration of youth with adults.
At the review, U.S. representatives did not meaningfully respond to the HRC’s criticism of state laws that push youth into the adult criminal justice system. A Department of Justice representative, however, repeatedly asserted that regulations implementing the federal Prison Rape Elimination Act (PREA) would address the issue of incarceration of youth with adults.
Some background on PREA is in order here. PREA was passed in 2003 to stop prison rape and prevent custodial sexual violence. A key provision of PREA is the creation of national standards, set forth in federal regulations, to detect and prevent sexual violence. In promulgating the regulations, the Department of Justice recognized that youth incarcerated in adult prisons are at grave risk of sexual violence -- citing statistics indicating that from 2005-2008, youth under 18 were eight times as likely to have a substantiated incident of sexual abuse. As a result PREA standards require “sight and sound” separation between “Youthful Inmates” and adult inmates.
PREA’s Youthful Inmate separation requirement was a substantial achievement in efforts to protect youth incarcerated in adult facilities. However, the federal government faces significant challenges in using the standards to actually achieve separation of youth and adults in prisons. Youth in adult prisons are a state, not a federal, problem. (The Federal Bureau of Prisons contracts with juvenile facilities to house the few inmates under 18 in its custody). And PREA does not require state compliance.
The only penalty states face if they fail to comply with PREA standards is the potential to lose 5% of federal funding for prison purposes from the Department of Justice and to have their names appear on a list of states that are not in compliance. Pro Publica recently reported that Texas governor Rick Perry has indicated that he’d rather lose federal funds than comply with the PREA standards. Indiana governor Mike Pence has also opted out indicating that it is cheaper for the state to lose federal funding than to comply.
While other states haven’t gone as far as Texas and Indiana, they don’t have to. PREA permits states that have not complied with PREA standards to avoid the loss of funding if they provide an assurance letter stating that they will use the 5% to bring facilities into compliance. Currently there is no limitation on how long states can submit assurance letters before being forced to either comply or lose funds. The Department of Justice has indicated that states can rely on assurance letters for at least three years and do not have to conduct facility audits that are required by the standards during that time period.
It’s important to note that some state and local authorities are taking steps to comply with PREA. New York’s Department of Corrections recently requested a budget allocation to comply with the PREA standards’ sight and sound separation requirements. However, whether or not youth are afforded PREA’s protections and separated from adult inmates as required under international human rights law should not turn on the state in which they live.
Youth justice activists are waiting to see how many states outright refuse to comply with the PREA standards and whether the DOJ will get serious about enforcing the funding penalty and audit requirements, but the U.N. will have another opportunity to consider U.S. claims that PREA standards will result in improved state compliance with human rights standards soon. The U.S. has held up the PREA standards as an example of how the U.S. reviews and modifies state and local laws to comply with the Convention on the Elimination of All Forms of Racial Discrimination (CERD). The U.N. review of U.S. compliance with CERD takes place this August.
Friday, May 23, 2014
Kelsey Hayden continues her discussion of Florida's failure to comply with Human Rights conventions in their treatment of children in the criminal justice system.
International human rights law dictates that juveniles are entitled to special measures of protection because of their age and developmental stage. Although the United States has not ratified the American Convention on Human Rights or the Convention on the Rights of the Child (“CRC”), the Inter-American Commission on Human Rights (“IACHR”) has emphasized that “member States, [such as the United States], that have not yet ratified the American Convention are just as bound by the corpus juris on children’s rights.” Thus, administration of juvenile justice within the United States must be guided by not only international human rights instruments that the United States has ratified, but by the general international body of law on children’s rights, even those instruments that it has not yet ratified. Notably, because the CRC has been ratified by most other countries, the U.S. remains an outlier having only signed and not ratified the instrument.
These international frameworks exist to ensure that juveniles are afforded the specific protections to which they are entitled, in all aspects of life, including the criminal justice system. Examples of human rights instruments delineating these protections include treaties to which the U.S. is a party, such as the ICCPR, the Convention on the Elimination of all Forms of Racial Discrimination (“CERD”), the Convention against Torture, and the American Declaration on the Rights and Duties of Manas well as instruments that the U.S. has not ratified, such as the American Convention on Human Rights and the CRC. Human rights organs—including the Inter-American Commission on Human Rights and the United Nations Human Rights Committee—examine alleged violations of some of these instruments and monitor the compliance of member States.
Despite the federal system of government in the U.S., the United States is obligated to ensure that all its states are in compliance with relevant international human rights law. While some states have made efforts to ensure that domestic laws comply with international standards on juvenile justice, there is still often a disparity between the language of the law and the reality that juveniles accused of violating the law encounter in the justice system. Florida is one state that consistently falls short.
The UNHRC expressed its opinion that far-reaching legal reforms are needed to adapt member States’—including the United States—domestic laws to international human rights norms on juvenile justice. Many organizations are working hard on the ground to find ways to engage with the U.S. government and ensure that Florida, the rest of the states, and the federal government all comply with these norms on juvenile justice. It is with measured optimism that we hope that soon the whole of the United States—including all of its states and territories—are fully in compliance with these international obligations, and that all juveniles will be treated fairly and with full respect for the special protections they deserve, especially when facing the loss of their liberty.
Thursday, May 22, 2014
Carrie Bettinger-Lopez sends this post written by student Kelsey Hayden. In this two part post, Ms. Hayden addresses Florida's shocking disregard of the human rights of juveniles in the criminal justice system.
Kelsey Hayden writes:
Juveniles accused of crimes in the United States are sometimes stripped of the protections that they should be afforded at a time when they are most vulnerable. Florida is perhaps one of the worst offenders when it comes to the deprivation of children’s rights in the criminal justice system. While most U.S. states permit the transfer of juveniles alleged to have committed certain crimes to adult criminal court for prosecution, Florida transfers more children under 18 to adult court than any other state. In Florida alone, more than 12,000 children were transferred to adult courts between 2008 and 2012. Florida is one of only 15 states to allow for prosecutorial discretion—and 1 of only 3 states to remove the possibility of any judicial review upon transfer—for all kids aged 14 and up who have been charged with certain enumerated crimes. Prosecutorial direct file removes all judicial discretion and is not in compliance with the corpus juris on children’s rights which provides that when alleged to have violated the penal law, a child has the right to have any potential measures reviewed by an impartial authority or judicial body. Following the March 2014 review of the United States’ compliance with the International Covenant on Civil and Political Rights (“ICCPR”), the United Nations Human Rights Committee (“UNHRC”) recommended that the U.S. ensure that juveniles are not transferred to adult courts.
In Florida, one particularly troubling consequence of such transfers to the adult system is that juveniles who have been charged as adults are automatically detained pre-trial in adult county jails. As a result of a federal and state mandate that juveniles be held out of the sight and sound of adults, juveniles in adult facilities are sometimes held in administrative solitary confinement where they can languish for months, or longer. In the recent review of the United States’ compliance with the ICCPR, the UNHRC also expressed concern about the continued practice of holding juveniles in prolonged solitary confinement, including during pre-trial detention, and recommended that the United States impose “strict limits on the use of solitary confinement, both pretrial and following conviction . . . and abolish the practice in respect of anyone under the age of 18.”The use of solitary confinement on juveniles is a particularly critical concern in light of the mental harm that isolation causes to children. Some of the mental health consequences in juveniles include self-harm, suicidal thoughts/attempts, and hallucinations.
Ms. Hayden continues her discussion of this disregard of the right so juveniles in tomorrow's post.
Wednesday, May 21, 2014
A new report, Human Trafficking & Native Peoples in Oregon: A Human Rights Report (May 2014), makes a significant contribution to understanding, documenting and beginning to address this devastating domestic human rights issue. The report was prepared by the International Human Rights Clinic at Williamette College of Law, under the leadership of Professor Gwynne Skinner. Kudos to the students and Professor Skinner for taking on this important domestic human rights work.
Research on trafficking and Native Americans has been sparse until very recently, and continues to be limited. As reported on the website of the Washington State Department of Commerce, “[i]n the U.S., research on sex trafficking of Native women and girls is limited but findings suggest that Native women and girls are over-represented among trafficking victims.” For example, one study cited in a research round-up compiled by the U.S. Department of Health and Human Services found that Native women in Hennipin County, Minnesota, were arrested for prostitution at 12 times their rate in the general population. In her 2012 student note, A Perfect Storm: The U.S. Anti-trafficking Regime's Failure to Stop the Sex Trafficking of American Indian Women and Girls, 43 Columbia Human Rights Law Review 617 (Spring, 2012), Andrea Johnson identified studies only in Alaska, Minnesota, Oregon, Washington, and South Dakota. Johnson linked the absence of data, as well as the disproportionate impact on Native women, to the long history of public and private sexual exploitation of Native women. As recently as 2011,no U.S.-based research on this topic had been published in peer-reviewed journals.
Activists in Minnesota and Alaska have taken the lead in documenting and publicizing this issue. In particular, research developed by the Minnesota Indian Women’s Sexual Assault Coalition led to the publication of Melissa Farley, et al., The Garden of Truth: Prostitution and Trafficking of Native Women in Minnesota (2011). This powerful and disturbing report, based on interviews of 105 Native women involved in prostitution, supported a re-examination and re-envisioning of state public policies to take into account the women’s cultural backgrounds.
As the issue emerges from the shadows, it is garnering more attention in Washington, D.C. as well. For example, in September 2013, Lisa Brunner testified on “The Devastating Impact of Human Trafficking of Native Women on Indian Reservations” at the Hearing on “Combating Human Trafficking: Federal, State, and Local Perspectives” before the Senate Committee on Homeland Security and Governmental Affairs.
Notably, though Native peoples are present in every state, and there are small reservations in Maine, New York, Connecticut, Rhode Island and Massachusetts, eastern states have lagged behind in documenting the issue of trafficking and Native peoples. Further, even in states where documentation has started, communities are still grappling with what supports might better address the issue. In short, important work remains to be done to protect human rights.
Tuesday, May 20, 2014
What's on your summer reading list? I've just added three new historical essays from the current (May 2014) issue of the Law and History Review on human rights in the U.S. and Great Britain.
Elizabeth Dale, editor of the Review, blogs that the articles "put the relationship between human rights protections, migration, and problems of racial discrimination into historical context. The result is sometimes surprising."
According to Dale, in the first of these essays, The Right to Asylum: Britain's 1905 Aliens Act and the Evolution of Refugee Law, authors Alison Bashford and Jane McAdam "reconsider the debates over the asylum provision of Britain’s 1905 Aliens Act. Their article traces the evolution of the right to asylum from that Act to the UDHR in 1948, situating the right at the crossroads of international and domestic law and exploring why the broad asylum provisions in the 1905 Act were not copied in the UDHR."
Two other articles, Race versus Religion in the Making of the International Convention Against Racial Discrimination, 1965, by Ofra Friesel; and Making the World in Atlanta's Image: The Student Nonviolent Coordinating Committee, Morris Abram, and the Legislative History of the United Nations Race Convention, by Timothy Lovelace, offer close looks at the passage of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) in 1965. Dale writes that Friesel’s study "provides a detailed analysis of why CERD did not cover religious discrimination as well as race. Finally, the article by Lovelace looks closely at the role civil rights activists in the United States played in the drafting of that Convention, reminding us that the idea of universal, as opposed to constitutional, rights has a history even in the United States."
What's on your summer reading list?
Monday, May 19, 2014
Just over a year ago, Rana Plaza factory building in Bangladesh collapsed, killing 1137 garment workers, many of whom were working on contract for U.S. clothing manufacturers. The Pittsburgh-based Institute for Global Labour and Human Rights reports that of the thirty-two U.S., Canadian and European manufacturers linked to Rana Plaza, only eighteen have contributed to the Rana Plaza Trust Fund established to assist the families of those killed or injured in the collapse. According to the Institute, Walmart and The Children's Place have contributed, and the Gap has offered financial support even though its manufacturing was not linked to Rana Plaza. In contrast, U.S.-based companies J.C. Penney, Cato Fashions and the Ascena Retail Group have failed to make any financial contribution.
Reflecting on sweatshop conditions exemplified by Rana Plaza, co-editor Sital Kalantry submits today's blog, authored by clinic student Paige Scheckla, suggesting both corporate and individual actions in the U.S. that can contribute to better working conditions worldwide.
Paige Scheckla writes:
American economists hail factories abroad as successes for both economic development and the promotion of human rights. They claim that citizens of less-developed countries (LDCs) who work in factories fare much better than their non-factory working counterparts, who make less money, face worse employment conditions, and have fewer opportunities. However, recent incidents in Bangladesh and Pakistan reveal just how grim conditions often are for factory workers in LDCs. These incidents have provoked international backlash against the corporate entities that manufacture clothes and other products in the factories. In this blog post, I outline a number of ways western corporations can modify their international factories and change their practices to comply with international employment law established by the International Labor Organization (ILO). In addition, I delineate several ways in which the world can facilitate further expansion of employment options for citizens of LDCs.
Earlier this year, Ed Miliband, the leader of the Labour Party in the United Kingdom, declared it necessary to address corporate abuses of employment law by ending the UK’s “chronic dependency on low-skill, low wage labor” from abroad. This statement comes amid an international controversy over “sweatshops,” or factories in LDCs that aim to produce cheap goods by paying low wages to workers and otherwise avoiding pro-employee regulations. For example, in April 2013, Rana Plaza, an eight story garment factory in Bangladesh, collapsed and killed more than 1,000 people. The top four floors of the factory were built without a permit. Many workers had noticed the building’s structural defects and cracks, but were forced to come to work anyway. The factory produced clothing for several major international stores, including Mango, Benetton, The Children’s Place, and Walmart. Just a few months earlier, almost 300 workers at a textile factory in Karachi, Pakistan faced the same fate when a fire broke out and the doors and exits of the factory were locked or barred. That same day, another fire killed 25 people in a shoemaking factory in Lahore, Pakistan when a fire blocked the sole exit of the factory.
All three incidents raise serious questions about the lack of worker safety regulations in LDCs. The conditions of the factories involved were in direct violation of the ILO’s Labour Inspection Convention. In addition, these and many others continue to allow very young children to work many hours a day and to deny workers the right to collective bargaining, in contravention of the Right to Organise and Collective Bargaining Convention of 1949 and the Minimum Age Convention of 1973.
While it may seem almost impossible for everyday citizens to prevent employment rights violations, especially since employment regulation is so embedded in the fabric of the nation-state, there are some ways in which individuals can help promote the human rights of workers in LDCs. For example, one can boycott stores which utilize “sweatshop” labor and elect to shop instead at second-hand stores or buy from budget-friendly companies that use sweatshop-free labor. One can also advocate for LDCs to enact and enforce greater employment regulation in line with ILO conventions. However, these methods have a minimal effect on the actual activities of international corporations that use sweatshop labor. To accomplish real change, individuals, governments, and international organizations need to work together to further expand employment options for LDC citizens. Individuals and companies alike can easily invest in micro-loans through companies like Kiva in order to help the world’s poor become entrepreneurs and provide for themselves through their individual skills and innovations. Similarly, governments and international organizations can increase their funding for education in LDCs in order to provide people with the knowledge they need to start their own companies or obtain high-skilled jobs. Lastly, international immigration policy reform can have a positive effect on job opportunities for citizens of LDCs. If it becomes easier for people to immigrate to richer countries that more closely abide by ILO conventions, governments in LDCs might be incentivized to enact and enforce policies that protect the human rights of workers.
Human rights violations in the employment sphere are directly tied to the realization of human rights in areas like education and economics. It will take an immense amount of work on behalf of the world’s citizenry, nation-states, and international organizations like the ILO to fully address these violations. However, incidents in Pakistan and Bangladesh prove how necessary it is that we take these steps immediately. Through a mixture of investment, policy reform, and demonstration, it is eventually possible to create a sweatshop-free world and to improve the human rights of all workers.
Saturday, May 17, 2014
As the nation marks the 60th anniversary of the unanimous Supreme Court decision in Brown v. Board of Education, many forget the international context in which it was decided and its impact outside of the United States. In a speech at the University of Pretoria in 2006, Justice Ruth Bader Ginsburg reviewed these impacts and observed that Brown "both reflected and propelled the development of human rights protection internationally." The speech is available here and through the link below:
Friday, May 16, 2014
Guest blogger JoAnn Kamuf Ward of the Columbia Human Rights Institute reports on the work of the Tennessee Human Rights Commission, holding a series of statewide hearings on the status of human rights. JoAnn writes:
In 1967, just a year before he was assassinated, Dr. King proclaimed that “we have moved from the era of civil rights to the era of human rights." Almost 40 years later, basic human rights remain elusive for many Americans.
In many communities, human rights are even met with open hostility. If you read the local Tennessee papers, this would become apparent. The Tennessee Human Rights Commission, celebrating its 50th anniversary this year, is itself under threat. Legislation has been introduced to change its name to the “Tennessee Affirmative Action Commission.” That bill has yet to garner the support to pass, but a recent vote reduced the number of Commissioners from 15 to 9.
The Tennessee Commission has demonstrated that it is rightly named a Human Rights Commission – a name that should be celebrated and protected. As the state agency charged with preventing and eradicating discrimination, the Tennessee Commission’s mission (like many other commissions’), aligns with universal human rights principles: ensuring dignity, well-being and equality for all. Indeed, in 2011, the Tennessee Commission was highlighted in a report that the United States submitted to the United Nations, which emphasized how these agencies, “play a critical role in U.S. implementation of the human rights treaties to which the United States is a party.”
Just this Monday, I returned from Nashville, where I was able to see the Commission put its name into action – taking the pulse of human rights in Tennessee. Since January, the Commission has held four hearings across the state – in Memphis, Nashville, Chattanooga and Knoxville. The hearings have brought together Commissioners, community groups, national organizations and mayors to discuss how the lives of Tennesseans are measuring up against the Universal Declaration of Human Rights.
The Tennessee Commission undertook these hearings in an effort to forge a path forward - a path that builds on a deep history of connecting the struggle for justice, democracy and equality as a struggle for human rights.
These hearings were an opportunity to take stock and think about creative solutions to the issues facing Tennesseans. Monday's hearing was the last, and the agenda was jam packed. Speakers discussed a range of issues, including criminalization of homelessness, discrimination against Muslim community members, felon disenfranchisement and the impact of deportations of non-citizens and their families. Mayor Karl Dean began the day, describing Nashville’s efforts to foster equity and inclusion in the face of shifting demographics and a growing immigrant population, noting that diversity and increased prosperity go hand in hand. Caroline Stover, a human rights clinic student, and I offered a national perspective on state and local initiatives to advance human rights across the country.
The dialogue, which lasted four hours, was rife with examples of human rights concerns, but more importantly, it was a platform to offer positive visions for change.
Suggestions included ways the Commission could more effectively address discrimination on the basis of sexual orientation and gender identity through increased documentation and outreach, even though these are not protected under the current Tennessee Human Rights Act. Legislative changes, such as removing financial and procedural barriers that limit the ability of persons with criminal records from voting, were also addressed. (Tennessee has some draconian standards, and is currently the only state that requires full payment of child support payments before the vote can be restored). Almost all participants emphasized the need for government and community collaboration to foster sustainable change.
These hearings, which identify and document human rights concerns, are just one example of the myriad ways that state and local human rights agencies across the country are advancing human rights protections.
But Tennessee also illustrates the constraints facing state and local governments across the country, and human rights agencies, in particular. (We have documented these in a 2013 report to the United Nations’ Human Rights Committee.)
Indeed, there are many challenges facing state and local government efforts to promote and protect human rights. The lack of staff, funding and political support makes advancing civil and human rights an uphill battle. But institutional change cannot occur without sustained focus on ways to further human rights, eradicate discrimination and promote equal opportunity. And this is the role of local agencies at their core. They address injustice and inequity through outreach, research and public education on pressing issues and policy recommendations.
Along with its partner agencies and other local agencies and officials, the Tennessee Commission represents part of an established infrastructure that can advance policies that foster dignity and opportunity.
As human rights advocates, we play an important role in supporting and strengthening local government efforts to identify and address human rights concerns. Further, we must press the federal government to live up to its obligations and provide state and local governments with the training and education, funding and support to do this work –steps numerous human rights experts and treaty bodies have called for. Without sustained support, including financial resources, the Tennessee Human Rights Commission, and others, will be unable to reach their full potential to advance human rights for all.
If you are interested in learning more about the Tennessee Commission’s hearings, all speakers’ presentations can be found here and the testimony will be compiled in a forthcoming report.
Thursday, May 15, 2014
Co-editor Lauren Bartlett writes with an update on the Local Human Rights Lawyering Project and a plea for pro bono assistance on a unique human rights housing project this summer.
For the past few years I have directed the Local Human Rights Lawyering Project at the Center for Human Rights & Humanitarian Law at American University Washington College of Law. The Project aims to normalize human rights at the local level by providing legal aid attorneys and other public interest advocates in the U.S. with tools, resources, and technical assistance to integrate human rights into their everyday work. The Project began with two Project Partners, Maryland Legal Aid and Texas RioGrande Legal Aid, and later expanded to work with legal aid organizations and other public interest advocates across the U.S. The Project now has a Handbook that has been used by over 1,000 U.S. attorneys and a listserv that is part of the Bringing Human Rights Home Lawyers’ Network. After much training, advice and assistance, legal aid attorneys have begun comfortably using human rights arguments in local courts and before local policy makers. Others have used human rights in community education and for the first time ever, legal aid attorneys have brought complaints to the U.N. and the Inter-American Commission on Human Rights.
As part of the Local Human Rights Lawyering Project, Maryland Legal Aid has developed a housing rights project to systematically study and document rent court practices across the state with an interesting human rights angle. Poor tenants facing eviction in rent court in Maryland have long faced egregious problems regarding equal recognition before the law. Too many tenants with a proper defense go unheard and face immediate homelessness, leading to costlier outcomes for both the tenants and the State of Maryland. Maryland Legal Aid has developed a survey tool to collect and analyze almost 1400 randomly selected rent court cases from 2012. A report will then be compiled using the human rights framework and human rights arguments, to be presented to the Maryland judiciary later this year. Their hope is that the data, along with strong human rights arguments to reframe and clarify this as a right to housing issue, will push the judiciary to make much needed changes in rent court systems and processes. Maryland is lucky to have judges like Catherine Serrette, who actively support the use of human rights arguments in Maryland.
Law student volunteers and interns, as well as the Columbia Law School Human Rights Clinic, have been involved with this project already. This summer Maryland Legal Aid is seeking additional assistance with this human rights project. Interested law students and lawyers willing to volunteer at least 20 hours+, especially before July 2014, can contact me at firstname.lastname@example.org or (202) 895-4556.
Tuesday, May 13, 2014
In 2011 Boston declared itself to be a human rights city. On May 7, 2014 Boston’s City Council unanimously adopted a resolution declaring freedom from domestic violence a fundamental human right. The resolution was part of a nationwide law student movement to encourage cities to recognize domestic violence as a violation of human rights. The movement grew out of human rights advocates' efforts to implement the decision of the Inter-American Commission on Human Rights in the case of Lenahan v. US. In that case the Inter-American Commission found that the United States violated Jessica Lenahan’s human rights when the town of Castle Rock Colorado failed to enforce the protection order that was outstanding against her husband. Ms. Lenahan’s three daughters died as a result of the failure.
Since 2011, ten other cities have enacted some form of the resolution. Only Austin and Boston demanded some form of proactive implementation as part of adoption. In Austin, a biannual domestic violence audit was structured in response to the resolution’s passage.
In Boston, Councilman Charles Yancey, who co-sponsored the resolution along with Councilwoman Pressley, indicated that he wanted to see affirmative results from its passage. He rightly insisted that the resolution be implemented as a proactive means of affirming Boston's Human Rights City status as well as its commitment to protect surviovrs. Consequently, Mr. Yancey will convene a panel on domestic violence next month. In addition, Mr. Yancey will seek funding that will permit the law students to develop a resource guide identifying survivor resources available in each of Boston's neighborhoods. In addition, the guide will explain the fundamentals of obtaining a civil protection order.
The Boston resolution cited a variety of categories of violence against women including sexual assault and teen dating violence as well as noting that domestic violence is not gender specific. Councilman Yancey revised the resolution, making it even stronger. The last paragraph of the resolution states:
Resolved: That the Boston City Council, in meeting assembled, acknowledges that there is no singular, stereotypical example of domestic violence and that this issue affects every segment of society regardless of gender, age, ethnicity, sexual orientation, religious affiliation or annual income and recognizes that freedom from domestic violence is a fundamental human right that no person shall infringe upon.
As human rights advocates search for ways to implement the Lenahan decision, partnering with local public representatives might provide an unexpected source of suggestions and resources.
Monday, May 12, 2014
Co-editor David Singleton updates his post chronicling recent developments on transgendered, incarcerated women:
Last month I posted about the Ohio Justice & Policy Center’s victory on behalf of Antione “Whitney” Lee, a transgender inmate who brought suit against the Ohio Department of Rehabilitation (“ODRC”) to obtain estrogen hormone therapy. At the time of my last post, OJPC had just won a TRO hearing at which a federal court judge ordered ODRC to place Ms. Lee on hormone therapy pending a preliminary injunction hearing. On May 2, 2014, after a two-day hearing, the judge granted a preliminary injunction requiring ODRC to continue to provide Ms. Lee with hormone therapy pending trial. Ruling from the bench, the court stated that the defendant, Dr. Andrew Eddy, had acted with deliberate indifference – the standard for Eighth Amendment medical claims – in denying estrogen to Ms. Lee. Click here to read the Associated Press’ coverage of the preliminary injunction ruling. At this time it is unclear whether ODRC will appeal, or whether the case will settle or go to trial.
Meanwhile in Massachusetts, Michelle Kosilek’s effort to get the Massachusetts Department of Corrections (“MDOC”) to pay for gender reassignment surgery was back in court last week. Ms. Kosilek, given the birth name Robert, is presently serving a life prison term for killing spouse Cheryl Kosilek in 1990. Earlier this year, a three-judge panel of the federal First Circuit Court of Appeals affirmed a federal district judge’s order requiring the MDOC had to perform and pay for the surgery. However, the full appeals court voted to reconsider the case and heard arguments on May 8, 2014, as reported by the Associated Press. Stay tuned
Friday, May 9, 2014
Continuing his analysis of a recent study addressing the percentage of wrongfully convicted, Brian Howe writes the following:
As stated yesterday, the National Academy of Sciences study's authors found the rate of wrongfully convicted at 4%. But the authors assume that of the 1320 defendants executed since 1977, none of them have been actually innocent. The authors also assume a perfect success rate for exonerations of innocent defendants who have been on death row for at least 21 years.
Some jurists, even (or perhaps especially) at the highest levels, actually believe this to be true. To Justice Scalia, for example, the fact that no one has conclusively proven the innocence of an executed person is good enough; remarkably, the number of exonerations of people on death row simply shows, in his mind, that the system (the post-conviction system, anyway) is working. See Kansas v. Marsh.(Scalia concurring).
What is especially remarkable about this view is that, for the most part, actual innocence has no place at all in most vehicles for post-conviction review. The study notes that judges are prone to commuting death sentences to life sentences where doubt exists as to the veracity of the conviction. While this certainly happens, these are not decisions that are about "innocence" on their face. Death sentences are typically overturned on procedural bases, and if commutations on procedural grounds benefit the arguably innocent more than others, it is not a function of the actual law, but naked (if perhaps commendable) activism.
As far as the law is concerned, once the trial and direct appeal are over, guilt is presumed and the actual merits of the case are beyond review. Under federal habeas review, for example, strong proof of innocence would have been completely irrelevant until 1995. In Schlup v. Delo, the US Supreme Court decided it would eliminate some (but not all) procedural barriers for federal habeas review in rare and "extraordinary" cases where an inmate could give strong proof of actual innocence. For purposes of this study, then, any procedurally defaulted inmate who filed for federal habeas review prior to 1995, even with strong proof of innocence, would have lost and been counted as actually guilty (again, unless he or she received help from a district court operating outside established law).
Even since Schlup, the Supreme Court has yet to find an explicit independent constitutional violation occurs when someone is wrongfully convicted (although it has presumed one would exist under the right circumstances). Under current SCOTUS precedent, then, innocence will simply get a person's foot in the door to argue other constitutional violations at trial, assuming any occurred. Perversely, procedurally defaulted inmates have to first convince a federal judge of their innocence before being allowed to argue that their conviction should be overturned... based not on their innocence but perhaps on some minor deficiency of trial counsel or other minor constitutional error at trial. In other words, the post-conviction review system that Scalia and others believe will infallibly uncover wrongful convictions is almost exclusively concerned with procedural violations of the constitution, and not at all with whether an inmate is actually innocent.
If actual innocence is undervalued in post-conviction review, and our post conviction system is not infallible at exonerating those on death row, then the percentage of those wrongfully convicted and sentenced to death is actually greater than 4%, and the number of innocent inmates who are actually executed or still awaiting death is unknown.
Thursday, May 8, 2014
Co-Editor Brian Howe of the Ohio Innocence Project discuss a recent study on the rate of false convictions. Part two of this discussion will post tomorrow. Brian writes:
There has been a lot of press coverage recently about a new study published by the National Academy of Sciences estimating the number of wrongful convictions: Rate of false conviction of criminal defendants who are sentenced to death. SR Gross et al., Proceedings of the Nat'l Academy of Sciences.
First, the punchline:
"We present a conservative estimate of the proportion of erroneous convictions of defendants sentenced to death in the United States from 1973 through 2004, 4.1%."
This is tricky business for a number of reasons. The raw figures on capital cases, executions and exonerations (depending on the definition) are widely available. There are so many variables involved in each of these, however, that simply dividing exonerations by the number of inmates on death row to calculate the rate of wrongful convictions would be of little use. The benefit of this study is that it attempts to incorporate the numbers into a general model that approximates the actual workings of our legal system, and can therefore be used to provide a broadly applicable number.
This requires plenty of assumptions, of course, all of which are fascinating and deserve posts in and of themselves.
First, the authors do note the possibility that capital cases may perversely be more likely to produce wrongful convictions, since police and prosecutors are under more pressure to convict for sensationalist murders than minor felonies. Unfortunately, without data, there is no way to test for or incorporate this hypothesis into the conclusion.
In addition, and more importantly, the authors acknowledge the relative frequency at which death sentences are commuted to life in prison. This practice has two effects on the estimate of wrongful incarceration. First, the authors assume that the rate of innocence of those who receive commutations is slightly higher than those who do not-- the thinking goes that if a reviewing court has any doubt about a person's actual guilt, but not enough doubt to actually exonerate, the easiest solution is to void the sentence or commute it directly to life in prison. Second, the authors assume that the heavy amount of litigation required for exoneration stays steady for those under a current threat of execution, but declines rapidly if the inmate does manage to successfully reduce his or her sentence.
As a result, under this analysis, the authors assume that most exonerations are likely to happen for those currently under threat of death, even if a higher proportion of wrongfully convicted inmates will have their sentences commuted and subsequently be forgotten.
In my opinion, the most interesting assumptions-- and they are big ones-- weigh in favor of a more conservative estimate of the actually innocent. First, the authors assume that of the 1320 defendants executed since 1977, none of them have been actually innocent. The authors also assume a perfect success rate for exonerations of innocent defendants who have been on death row for at least 21 years. In other words, the estimate of wrongful convictions is only as low as 4% insofar as we assume our post-conviction system has been 100% infallible at spotting and exonerating the innocent.
Tomorrow's post will continue the analysis.
Wednesday, May 7, 2014
In today's entry, co-editor Risa E. Kaufman reports on a timely new collection of articles on the human right to housing. International attention to U.S. homelessness has increased at the same time that domestic activists are also framing lack of adequate housing as a human rights issue. This new collection builds on -- and contributes to -- this momentum.
Risa E. Kaufman writes:
The most recent issue of the Columbia Law School Human Rights Law Review offers an important resource for lawyers and other advocates interested in efforts to advance the right to housing in the United States. The journal has made this special issue available for free on the website of the National Law Center on Homelessness and Poverty.
The articles in the special issue add to the growing momentum for human rights-based responses to the housing crisis in the United States and examine some of the legal strategies that advocates are engaging to promote the human right to housing. The articles include an examination of how lawyers can draw on international and foreign law to urge U.S. courts to expand available remedies in litigation challenging the criminalization of homelessness; a discussion of the implications of advocacy efforts to link the right to counsel in civil cases with a housing rights strategy; an exploration of recent constitutional and statutory jurisprudence from the Constitutional Court of South Africa regarding the right to housing in South Africa; and a human rights analysis of unequal development and investment in cities’ urban cores.
The issue also contains the transcript of a conversation between Columbia Law School Professor Olatunde Johnson and Evan Wolfson, the executive director of the Campaign for the Freedom to Marry, suggesting lessons that U.S. housing advocates can draw from the effort to secure the freedom to marry for same-sex couples. The special right to housing issue is an outgrowth of a 2013 national symposium entitled “Bringing Economic & Social Rights Home: The Right to Adequate Housing in the U.S.,” co-sponsored by the Columbia Law School Human Rights Institute, the National Law Center on Homelessness & Poverty (NLCHP), the Northeastern University School of Law Program on Human Rights and the Global Economy (PHRGE), and the Columbia Law School Human Rights Law Review. The day-long event, sponsored by Skadden Arps, brought together attorneys, advocates, and federal, state, and local government representatives to explore cutting edge and creative strategies to establish a right to housing in the United States. Together, the articles in the special issue offer a unique insight to the range of work being done in the United States to advance the right to housing, and to promote economic and social rights within the United States more generally.
Tuesday, May 6, 2014
Governments around the world are assuming greater responsibility for ending violence against women. In fact, a ground-breaking European treaty on violence against women will enter into force on August 1, 2014. But co-editor Leigh Goodmark asks, given the devastating statistics on officer-involved domestic violence, should governments be delegating front-line implementation responsibilities to the police? Professor Goodmark writes:
Last month, Javier Acevedo shot his wife, then himself, in a murder-suicide. Earlier in April, Ryan Anders broke into his ex-wife’s home and shot her before killing himself. Murder-suicides, though not a common occurrence, are hardly unknown to those of us doing domestic violence work. What makes these two incidents less ordinary is that in both cases, both the perpetrator and the victim were police officers.
Domestic violence, even fatal domestic violence, is far from an isolated incident within police communities. Research shows that intimate partner abuse is two to four times more prevalent in the families of police officers than in the overall population. The media regularly reports on officers who have been suspended or arrested for engaging in intimate partner abuse. In recent years, the murder of Crystal Brame, by her husband, Tacoma, Washington police chief David Brame, and allegations of domestic violence against San Francisco sheriff Ross Mirkarimi have made national news. Brame committed suicide after killing his wife; after pleading guilty to the false imprisonment of his wife, Mirkarimi was reinstated as sheriff.
Because of their training, police officers can be particularly dangerous abusers. As Diane Wetendorf, an expert in officer involved domestic violence, explains, police officers are taught how to intimidate suspects, conduct surveillance, find someone who doesn’t want to be found, and interrogate suspects. Police officers expect compliance with their orders, bolstered by the authority granted to them by the state. Officers learn how to use force without causing serious bodily injury. When used to protect the public, these are all valuable and important skills. When used against an intimate partner, they can be devastating.
The partners of police officers may have few options available to them for addressing their abuse. Most police departments have no specific policy for responding to intimate partner abuse perpetrated by one of their own, despite the efforts of the International Association of Chiefs of Police, which promulgated a model policy in July 2003. Officers’ intimate partners fear calling the police, because he is the police; they are well aware of the culture of silence that cloaks officers’ actions. They know that their partners are well-versed in courtroom procedure and known and respected by judges and prosecutors, making the prospect of court proceedings daunting. Their abusers have access to information systems that allow them to track their partners. They know where the shelters are and often have working relationships or are engaged in collaborations with shelter staff and service providers. Officers’ partners also know that pursuant to federal law, a domestic violence conviction means the officer will lose his gun, and therefore his job, making him that much more vindictive and dangerous. In a society in which the primary response to domestic violence is through the criminal legal system, the partners of police officers often have nowhere to turn.
How can we better protect the intimate partners of police officers? Urging local police departments to adopt strong policies for addressing intimate partner abuse by officers would be a good start. But it is also worth questioning the nature of our response to intimate partner abuse more generally. Should the criminal justice system be the primary response to domestic violence in a country where police officers are disproportionately committing such abuse? Providing options beyond the legal system would benefit many people subjected to abuse, but few would benefit as much as the partners of abusive police officers.
(Adapted from an earlier blog post on the NYU Press Blog, From the Square)