Human Rights at Home Blog

The Incacerated and Hunger Strikes

By Lesley Wexler

Prisoners and detainees have long used hunger strikes to communicate their dissatisfaction with the conditions of confinement. While such activities and the ensuing government  responses were once closely associated with the British treatment of the Irish prisoners. For background click here. Such practices have come home with recent strikes in places like California as well as Guantanamo and Bagram. Hunger strikers can simultaneously exercise their human right to autonomy and draw attention to detention officials' deprivation of other human rights. In turn, government responses can themselves beget more human rights violations as with worsened conditions of confinement and aggressive force feeding .

            In the wake of the one year anniversary of the California prison hunger strikes involving more than 30,000 individuals, now seems a good time to take stock of the aftermath. California did not offer any major concessions such as abolishing solitary confinement, but it did offer to hold public hearings on the conditions of confinement.  At the same time however, the California Department of Corrections reportedly responded to the strikes by “propos[ing] a new level of censorship, banning any materials coming into or going out of the prison that “indicate an association with groups that are oppositional to authority and society.” Meanwhile, the movement supporting hunger strikers continues with anniversary demonstrations held across California, other states, and even in other countries.  In addition, hunger strikers across the globe have forged ties in other ways as well. For instance, Palestinian prisoners wrote in support of Californian strikers last year and in turn, U.S. hunger strike supporters provided encouragement to Palestinian hunger strikers in May and June of this year. See here  and here.

  
             As the U.S. government has chosen to respond to hunger strikes with force feeding, new and unexpected challenges  have been gathering momentum. 2013 saw the first wave of detainee force feeding litigation, with spring 2014 bringing suits from Guantanamo detainees Emad Hassan and Abu Dhiab who challenge particular force feeding practices. In addition, at least one U.S. government actor has refused to participate in activities designed to subvert the hunger strikers at Guantanamo. Abu Dhiab reported to his lawyers that an unnamed U.S. navy nurse recently ended his participation in the force feeding over ethical concerns about the practices. Numerous organizations have spoken out in support of the nurse's actions including Physicians for Human Rights .

Domestic prison strikes, detainee strikes at U.S. facilities, and international strikes against other governments seem likely to inform and influence one another.  Strikers and governments may learn from one another’s political and legal tactics. Equally important, human rights actors have the opportunity to urge the adoption and implementation of universal standards for detainment that can avoid such strikes in the first place and allay the abuses of governments when they do happen.

The Kind Advocate

by Fran Quigley

 “Kindness wins.”

That was the theme of the early July service for Paul Chase, a longtime Indiana advocate for social justice.

That kindness quote can be attributed to Caitlin Priest, one of Paul’s colleagues at the organization Covering Kids and Families of Indiana, a leader in the ongoing campaign to gain much-needed healthcare for all Hoosiers. But the other speakers at the service, including Paul’s friends and family, echoed the same sentiment.

They reflected on Paul’s lifetime of fighting for the rights of the sick, the marginalized, and the poor. They praised Paul’s pioneering work on behalf of people with HIV/AIDS, insisting that his advocacy saved thousands of lives.

They talked about his subsequent work on behalf of civil rights, improved living conditions for seniors, and protection of the environment. For over three decades, Paul deployed a rare combination of charisma and tireless work ethic to argue the cause for those in the most need.

At the memorial service, Indiana state representative Ed Clere noted that we gathered 50 years to the day from when the Civil Rights Act of 1964 was signed into law. We are celebrating the life of a real champion of equality, he said.

In their remarks, Paul’s loved ones usually drifted away from advocacy talk, circling back to straightforward appreciation for what a genuinely good person he was. They shared stories about the compassion and gentle humor he shared with everyone whose lives he touched. 

A family member said Paul was the most mindful and emotionally intelligent person he had ever known. Paul made us all better, a colleague agreed. You just did not want to be a jerk around him, she said, because he would never act that way. Hundreds of Paul’s friends in attendance, me included, nodded in understanding.

Paul would not have wanted sadness at his service, his close friend Kathryn Williams had told us in her introduction. So we tried to stay positive.

But we could not help mourning the fact that Paul died in a car accident the very day that a U.S. District Court judge ruled that Indiana must allow same-sex couples to marry. Paul and Terry Briner never had the chance to legally solemnize their 40-year partnership that served as a loving model for their friends and families.

That cruel timing was a reminder. Although Paul is no longer with us to push for justice, the campaigns he waged are not yet complete.

At the end of the service, Williams read a letter from Paul’s mother, Lorraine, who was not able to take the podium herself. “Good luck to all of you who continue to fight the good fight,” she wrote.

Message received, both from Mrs. Chase and from the life example provided by her son.

Paul has done his part. If kindness truly is to win out, others will need to take up the struggle now.

Human Rights and International Adoption

Professor Marie Failinger of Hamline Law School recently posted a fascinating new article on the fraught topic of intercountry adoption and human rights.  Published at 39 North Carolina Journal of International Law and Commercial Regulation 523 (2014), the abstract is below.  Additional human rights perspectives on intercountry adoption are available here and here.

Abstract: 

This article articulates rights in existing intercountry adoption conventions as the touchstone for fleshing out substantive human rights expectations in international conventions, centered on the concept of human dignity. It discusses a cluster of meanings that grow out of our recognition of human dignity which are foundational to a just and workable adoption regime across national lines: the realism principle; the global interdependence principle; the family diversity principle; and the vulnerability principle.

The four core principles of the Convention of the Rights of the Child - non-discrimination; devotion to the best interests of the child; the right to life, survival and development, and respect for the views of the child - can be re-anchored to the concept of human dignity to inform these concerns about the value and limitations of intercountry adoption.

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For more ideas on Human Rights at Home, check back later this week for posts by Fran Quigley ("The Kind Advocate") and Jonathan Todres (Children's Literature and Human Rights)!

 

Sample Human Rights Syllabi

Many of us in academia spend part of each summer working on syllabi.  There are some great resources on the web to support development of law school human rights courses, including many that provide coverage of human rights issues in the U.S.

The Pozen Family Center for Human Rights at the University of Chicago spearheaded the creation of a syllabus bank a few years ago.  The bank has a good mix of syllabi from law schools, other graduate programs and undergraduate classes.  For example, the syllabus bank includes Iowa Professor Amy Weissman's syllabus for Human Rights Advocacy, which includes some excellent readings on local human rights ordinances including Iowa City's human rights ordinance.  The syllabus bank is here: https://humanrights.uchicago.edu/page/syllabus-bank.

University of Califonia at Berkeley has also compiled a syllabus bank, with little overlap with the U. of C. bank.  The Berkeley Bank is called "Human Rights Syllabi for the College Classroom," but it includes a number of graduate classes as well, including a dozen or so syllabi used in law schools. The Berkeley bank is here: http://learning.berkeley.edu/AIUSA-syl/toc.html

Finally, the UN History Project has compiled syllabi on UN themes, which include many law school human rights syllabi as well as syllabi developed abroad.  One example is a syllabus from Professor Elizabeth Pendo's course on Human Rights and Health at St. Thomas School of Law, which sets up  human rights analyses of human health experiments conducted in the U.S. such as the Tuskegee and Plutonium experiments.  The UN compilation is found here: http://unhistoryproject.org/teach/syllabus-themes.html#_Toc304900497.

With these resources, no one has to reinvent the wheel to bring "human rights at home" into their classroom.

 

Implementation of Lenahan v. US and a Tribute to Jessica Lenahan

By Carrie Bettinger-Lopez

 

In May 2014, Colorado Senator Irene Aguilar presented a Tribute to Jessica Lenahan (formerly Gonzales), a domestic violence survivor from Colorado whose three children were killed in 1999 after police failed to respond to her calls to arrest her estranged husband, who had kidnapped the children in violation of a restraining order. (Click here for a short video about Ms. Lenahan’s case). The tribute commends Jessica’s "determined crusade, validated by a favorable ruling from the Inter-American Commission on Human Rights in her case,” and “reaffirm[s] the fact that freedom from domestic violence is a basic human right that government must ensure for all." Here is an image of the Tribute in its entirety.

Here is a photo  of Senator Aguilar (right) and Jessica Lenahan (left), and here is a video of Senator Aguilar reading the Tribute to Jessica.

That same month, Boston became the 11^th municipality to adopt a resolution declaring that “freedom from domestic violence is a fundamental human right.” “DV Free” resolutions like the one in Boston are inspired by Jessica Lenahan’s case (many cite specifically to her case) and have cropped up across the country, in municipalities as diverse as Cincinnati, Baltimore, Miami, Washington, D.C., and Travis County, Texas. Many of these resolutions contain a charge to governmental agencies to incorporate the ““freedom from domestic violence is a fundamental human right” principle into the agencies’ policies and practices, and some go even further, assembling task forces or working groups for further follow up.  (Note: If you are interested in working on such a resolution in your municipality, please email me offline and I can add you to a listserv I am hoping to put together with colleagues).

To understand why the Colorado Senate Tribute to Jessica Lenahan and the “DV Free” resolutions are such a big deal (at least for some of us “human rights at homers”), let’s rewind to 2011, when the Inter-American Commission on Human Rights issued a landmark decision in Jessica Lenahan (Gonzales) vs. United Statesthat found the United States responsible for human rights violations against Ms. Lenahan and her children, on account of the failure of the police to respond to her repeated calls for help and the U.S. judiciary’s failure to provide her a legal remedy.  The Commission issued several recommendations focused on policy and individual-focused remedies in its decision. On the policy level, the Commission recommended that the United States adopt legislation, resources, regulations, training, and model protocols concerning the enforcement of domestic violence restraining orders, protection measures for children, and law enforcement investigation into missing children in the domestic violence context.  The Commission also urged the United States to adopt “public policies and institutional programs aimed at restructuring the stereotypes of domestic violence victims, and to promote the eradication of discriminatory sociocultural patterns that impede women and children’s full protection from domestic violence acts.”

On an individual level, the Commission urged the United States to conduct “a serious, impartial and exhaustive investigation” into both the systemic failures by the Castle Rock Police Department and into the cause, time, and place of the deaths of the girls. (Note that it is still unknown to this day who killed the children, as I discuss below). Additionally, the Commission urged the United States to provide “full reparations” to Ms. Lenahan and her son.

Indeed, a lesser-known fact in Ms. Lenahan’s case is that, despite her repeated requests, the authorities never investigated the cause, time, and place of Ms. Lenahan’s daughters’ deaths.  In fact, according to an expert report by Professor Peter Diaczuk, a forensic crime scene expert witness retained by Jessica Lenahan’s legal team, Colorado authorities erred in several areas of their investigation: the collection and preservation of physical evidence; crime scene photography; analysis and reporting of forensic evidence; the chain of custody of the evidence and evidence that appears to be lost or missing; trajectory analysis; and blood spatter analysis. Despite these conclusions, no investigation has occurred.  To this day, Ms. Lenahan does not know whether her estranged husband Simon Gonzales killed the children or whether they were casualties of the gunfire between Mr. Gonzales and the police. She has never been able to put a date of death on her daughters’ headstones.

 A human rights framework is based in principles of accountability, empowerment of survivors, and structural solutions to address root causes. The “DV Free” resolutions and the Colorado Senate Tribute take important steps forward in concretizing these principles and realizing the Inter-American Commission’s policy and individual-focused recommendations in Lenahan. To be sure, much more needs to happen to fully implement the decision and vindicate Ms. Lenahan’s rights (I have written more about this theme here). Next up in Colorado: we need a full-fledged investigation into the deaths of Rebecca, Katheryn, and Leslie Gonzales. Getting that investigation underway will take significant time and effort, but it is of paramount importance to Ms. Lenahan, and the Senate Tribute nods toward its import. Additionally, advocates in Colorado are trying to develop a statewide “DV Free” resolution, which would be a first – and a symbolically important one at that – amongst the 11 municipal resolutions.  Stay tuned for more in the coming months.

 

 

Local Officials Seek Human Rights Guidance from the State Department

On July 22, a group of mayors and local human rights officials -- including the Mayors of Salt Lake City, Utah; Austin, Texas; and Memphis, Tennessee -- sent a letter to Assistant Secretary of State Tom Malinowski, seeking guidance from the federal government on local implementation of U.S. human rights obligations.

A link to the letter is here.

Guest blogger JoAnn Kamuf Ward of the Columbia Human Rights Institute posted this cogent commentary on Huffington Post:

http://www.huffingtonpost.com/joann-kamuf/equipped-to-innovate-stat_b_5610394.html

Importantly, this domestic dialogue is proceeding on a parallel track with developments at the UN.  The UN Human Rights Council has established an advisory committee charged with preparing a research-based proposal on the role of local governments in the promotion and implementation of human rights. A status report on that process is expected this fall.

Mass Incarceration in America

By David Singleton 

Consider for a moment the explosion in Ohio’s prison population over the past thirty years.  In 1929, when Dr. Martin Luther King, Jr. was born, Ohio’s prison population was 8,804.  In 1955, when Dr. King led the Montgomery Bus Boycott, 10,483 people were imprisoned in Ohio.  In 1963, the year of Dr. King’s “I Have a Dream” speech, Ohio incarcerated 11,644 people.  And in 1968, the year Dr. King was assassinated, there were 10,189 people in Ohio’s prisons.  Ten years later, Ohio incarcerated approximately 12,000 prisoners.  But soon thereafter Ohio’s prison population began to soar.  By the time I joined the Ohio Justice & Policy Center in 2002, there were 35,000 prisoners in Ohio. Today, Ohio’s prison population is 50,600, and the correctional budget is a staggering $1.6 billion.  I am convinced that if Dr. King were alive today, he would be working to end mass incarceration in America. 

So what happened? How did we get here? Ohio’s story is not unlike other states across the country. In the early 1970’s, we rewrote our criminal code. We followed the popular politics of the Rockefeller drug laws in New York and the tough on crime mandatory minimums. Prisons packed with drug offenders and low level offenders soon followed.

The way in is often the way out. We can reduce our prison populations through sentencing reform that emphasizes safety and risk versus retribution. We can return resources, money and also people who are fathers and mothers, to efforts to restore the damage that has been done and build a better a future. 

Recently I had the opportunity to discuss possible solutions to Ohio’s mass incarceration problem on WOSU’s All Sides.  http://wosu.org/2012/allsides/mass-incarceration-social-economic-costs/.  Also joining me on the program were Jeremy Travis, President of the John Jay College of Criminal Justice and  Melissa Kearney, Director of The Hamilton Project at The Brookings Institution.

US reporting and the Convention Against Torture

In advance of a webinar discussing the topic, guest blogger Rebecca Landy, Outreach Coordinator of the Human Rights Network writes this post on US obligations and advocacy under the Convention Against Torture and US.  She writes:

 Under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), State parties are required to submit reports every four years to the United Nations review body, the Committee Against Torture (CAT Committee). The US ratified CAT in 1994 and its last review under the treaty was in May 2006. The 1996 review highlighted US human rights violations such as: torture at Abu Ghraib and Guantanamo Bay, secret prisons throughout Europe, the use of rendition and torture for suspected Al Qaeda operatives, and the Bush administration's changing interpretations of what constitutes “torture.”

The US was late in submitting their most recent report (a combination of their third (2000), fourth (2004), and fifth reports (2008)) to the CAT Committee; they finally submitted in August 2013, and will be reviewed by the Committee in Geneva this November. In response to these government reports, social justice groups and other NGOs will submit alternative reports, also known as shadow reports, which give an on-the-ground assessment of how the government is complying with CAT.

 The US Human Rights Network (USHRN), where I serve as the Human Rights Outreach Coordinator, is a network of organizations and individuals working to grow a human rights movement and culture in the US, USHRN engages grassroots and national groups in the use of human rights standards, laws, and mechanisms to advance domestic advocacy and organizing goals; it is the primary organization coordinating the participation of groups in the review of the US Government on its compliance with CAT.

 For example, grassroots groups like Justice Now, an organization in California that works with women prisoners and local communities to build a safe, compassionate world without prisons, will be utilizing the CAT review to advance their domestic work. Justice Now will show how violations of incarcerated women’s reproductive rights amount to torture, like the hundreds of cases of sterilization abuse in California prisons. Sharing stories of women like ‘Sheri,’ who was sterilized without her knowledge or consent, can be used on the international stage as a tool for human rights advocacy at home.

 The USHRN CAT Taskforce has organized a webinar for July 22^nd, at noon ET to help our preparation for the review; it will provide an overview of the treaty, the review process, shadow reporting, and information on how to get engaged and involved. The CAT Taskforce is co-chaired by Antonio Ginatta of Human Rights Watch and Claire Leslie Johnson of the University of Minnesota Human Rights Program.

 How can you get involved in the CAT review process? You can write a shadow report (or sign-on to another organization’s report)! Reports are due to USHRN on September 17, 2014, and we will write an executive summary of all reports submitted to us and send them to the CAT Secretariat. You can also join an issue area working group. These groups serve three main purposes, to: 1) organize shadow reports; 2) advocate in Geneva; and 3) advocate at home.

 We encourage you to register and attend Tuesday’s webinar and participate in the CAT review process. You can also join USHRN’s CAT Listerv to receive periodic updates on our work related to the CAT review.

 Special thanks to my former Professor Margaret Drew for inviting me to write this piece and for continuing to serve as an inspirational human rights advocate.

 

California Death Penalty Struck Down based on "Death Row Phenomenon"

Last Wednesday, a federal judge in California declared the state's administration of the death penalty to be unconstitutional.  Critical to the decision are the delays in exercise of the dealth penalty in California, which currently run up to 25 years after sentencing.  Finding such delays to violate the 8th's amendment's prohibition on cruel and unusual punishment, the Court looks only to domestic precedent and does not explicitly address human rights law.  However, as litigation of this issue continues in California and elsewhere, we can expect that the human rights arguments will gain wider attention.  

The delays in California are well-documented and have even been the subject of human rights investigations.  For example, in 2013, the International Federation of Human Rights Organizations (FIDH) and the Center for Constitutional Rights conducted a fact-finding mission in California and Louisiana to investigate human rights violations in administration of the death penalty.  A section of the report specifically reviews the extraordinary delays in the California system, some of which are caused by the dearth of qualified attorneys to handle the prisoners' post-conviction appeals.

There is also substantial international jurisprudence on the human rights impact of prolonged time on death row.  The European Court of Human Rights has found excessive delays in death penalty administration to constitute torture and inhumane treatment in violation of the European Convention of Human Rights. According to Columbia Professor Sarah Cleveland, quoted in the New York Times in 2011, “the ‘death row phenomenon’ — including lengthy time on death row — has been recognized as inhuman punishment and illegal throughout Europe since the 1980s.”  A number of scholarly articles and advocacy reports synthesize this research on the "death row phenomenon."

Past efforts to challenge delays in California have been unsuccessful, and state courts have repeatedly rejected assertions that the delays in death penalty administration violate federal, state and international human rights law. However, last Wednesday's ruling may signal a dramatic change in that posture. Importantly, the relevant international law makes clear that there is even more support for the District Court's position than is apparent on the face of the decision. 

Related articles

"Federal judge strikes down California death penalty"

Stereotyping Asian Americans As Misogynist

Sital Kalantry sends along her post which captures the promotion of misogyny through cultural stereotyping.  This piece also appeared in Huffington Post.

 In recent years, politicians in almost half the states in the country as well as a majority of the U.S. House of Representatives have tried to pass anti-abortion laws to, purportedly, address a bias against girl children among Asian Americans and eight states have passed such laws. At this moment, the Asian American population is the fastest-growing racial group in the country, in part due to the growing number of Asian immigrants -- which now surpasses the number of immigrants from Latin American countries.  This legislation has been fueled by a combination of implicit bias, factual inaccuracies and harmful racial stereotypes that Asian Americans have a preference for sons. People assume that just because there are so many more boys than girls born in some Asian countries that when people from those countries migrate to the United States, they also abort female fetuses due to a preference for sons.

Setting aside abortion politicking, political ideology and religious dogma, we set out to closely examine the claims fueling legislation banning sex-selective abortion in the United States. Legal scholars from the University of Chicago Law School led a multidisciplinary team that undertook an exhaustive review of U.S. census data and conducted field-work in India, and recently published a new study that finally unravels the "evidence" fueling this anti-Asian campaign.

In our new report, Replacing Myths with Facts: Sex-Selective Abortion Laws in the United States, we find that this legislation is based on myths and misinformation. In fact, while sex-selective abortion bans have proliferated based on a supposed concern over Asian immigrant birth patterns, the reality is that Asian Americans tend to have more girls than white Americans.

The main empirical data on which legislators have relied to pass laws banning sex-selective abortion is a study of 15-year-old U.S. census data. In analyzing more recent U.S. census data from 2007 to 2011, our team of economists found that Asian Americans do not exhibit a preference for sons (or an aversion for daughters). These birthing patterns are very different than what is happening in India and China.

While it is true that certain foreign-born Asian American groups are more likely to have boys when they already have two girls, they are also more likely than white Americans to have girls when they already have two boys.  When white American parents seek a baby of a certain sex so that their family has both boys and girls many consider that desire "family balancing."  When Asian American parents act on the same desire, it's being called "gendercide."

Among the myths dispelled by the report is that the United States lags behind the rest of the world in prohibiting abortion motivated by sex selection. "Experts" in state after state have claimed that the United States is the only "advanced" country in the world that does not prohibit sex-selective abortion.  That is flatly untrue.  Only four countries other than the United States explicitly ban this practice: China, Kosovo, Nepal and Vietnam. Most countries that are concerned about sex selection have laws that ban the use of assisted reproductive technologies for sex selection purposes. None of the legislation introduced or enacted in the United States addresses the use of assisted reproductive technologies to sex select. This omission suggests that the primary motivation behind sex-selective abortion bans is to limit access to abortion generally.

In all, our report identifies six major myths being used to promote sex-selective abortion bans in the United States. Once these myths are exposed and the facts are brought to light, all that remains in support of these laws are harmful stereotypes about Asian Americans. We do not support sex selection, but we oppose laws that are passed based on racial stereotypes.

Co-Author: Miriam Yeung, Executive Director, National Asian Pacific Women's Forum

On Call Scientists for Human Rights

Is There a Scientist in the House?

by Risa Kaufman

I just returned from a meeting of the American Association for the Advancement of Science’s Science and Human Rights Coalition. This Coalition of the AAAS is a network of engaged scientists and scientific and engineering organizations dedicated to promoting and protecting human rights. At the meeting, I learned about “On-call Scientists,” a project of AAAS’s Scientific Responsibility, Human Rights & Law Program. On-call Scientists is a remarkable resource for the domestic human rights legal advocacy community. Through it, AAAS matches volunteer scientists from a broad spectrum of disciplines (including statistics, psychiatry, public health, sociology, geography, economics, engineering, and mathematics), with human rights organizations needing specific scientific expertise. The volunteers provide technical assistance to human rights organizations in all aspects of advocacy, such as monitoring and reporting, survey design, and litigation. Imagine the possibilities: a seasoned geographer mapping housing segregation; a public health expert helping to craft recommendations to effectuate the right to health; an economist analyzing government expenditures on education. AAAS facilitates the relationship by matching host organizations with volunteers. Human rights organizations interested in availing themselves of this unique and valuable service begin by filling out an on-line form. The full process can be found here. I encourage domestic human rights advocates to share examples of successful collaborations.

Challenging Sex-Based Citizenship Laws in the U.S.

A few weeks ago, a consortium of international activists convened in Geneva to launch a global Campaign the End Sex Discrimination in Nationality Laws.  The campaign announcement followed on a report issued by Equality Now earlier this year chronicling sex-based inequities in citizenship laws as well as attention to the issue by the UN Refugee Agency.  The U.S., which treats foreign-born out-of-wedlock children differently depending upon whether their citizen parent is a mother or a father, is one of the countries targeted for reform by the Equality Now campaign.

The U.S. Supreme Court most recently upheld this sex-based treatment in Flores-Villar v. United States, and in Nguyen v. INS, 533 U.S. 53 (2001), the majority (5-4) of the Supreme Court opined that the sex-based distinction was justified by innate biological differences between men and women. Justice O'Connor offered a pointed dissent, joined by Justices Ginsburg, Breyer and Souter. The dissenters' position is now strengthened by an excellent article by Professor Kristin A. Collins, Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation, 123 Yale L. J. 2134 (2014), which draws on close readings and careful analysis to powerfully challenge that Supreme Court majority's conclusion -- and the perpetuation of sex-based citizenship distinctions -- on historical grounds.

According to the article abstract:

The citizenship status of children born to American parents outside the United States is governed by a complex set of statutes. When the parents of such children are not married, these statutes encumber the transmission of citizenship between father and child while readily recognizing the child of an American mother as a citizen. Much of the debate concerning the propriety and constitutionality of those laws has centered on the extent to which they reflect gender-traditional understandings of fathers’ and mothers’ respective parental roles, or instead reflect “real difference.” Based on extensive archival research, this Article demonstrates that an important yet overlooked reason for the development of gender- and marriage-based derivative citizenship law—jus sanguinis citizenship—was officials’ felt need to enforce the racially nativist policies that were a core component of American nationality law for over 150 years. The complex interaction of gender, race, family law, and nationality law charted here demonstrates that gender-based jus sanguinis citizenship is not a biologically inevitable feature of American nationality law, as has been argued, but is in important respects the product of choices made by officials engaged in a racially nativist nation-building project. This history also suggests that what is at stake in modern challenges to gender-based citizenship laws is not only the constitutionality of those statutes, but a mode of reasoning about citizenship, family, gender, and race that continues to shape the practice and politics of citizenship in ways that are often obscured in modern citizenship debates.

 

Related articles

Collins on Jus Sanguinis Citizenship

Women's nationality is focus of new campaign for gender equality

Civil Society, Human Rights and the U.S. Government

Proposals for Civil Society to Help Improve Human Rights Consultations with the U.S. Government

 By Lauren E. Bartlett

About a decade ago, a broad group of human rights advocates in the U.S. began actively engaging the U.S. Government through human rights consultations.  These consultations are designed to provide an opportunity for civil society to engage the U.S. Government directly about its international human rights obligations and commitments.  Under the Universal Periodic Review process, these consultations between government and civil society are specifically “encouraged” by the U.N. Human Rights Council.  For example, in 2010 human rights consultations have included a series of consultations documented on the humanrights.gov website including the consultation on access to justice previously mentioned on this blog, a consultation on indigenous human rights issues held in Oklahoma, and the racial discrimination consultations held earlier this week. 

 There has been quite a bit of advocacy by human rights advocates with U.S. government officials organizing the consultations, including by the U.S. Human Rights Network in particular, to improve the efficiency and efficacy of the consultations.  That advocacy has let to substantial changes, including but not limited to the addition of oral responses by government officials to civil society presentations during consultations, the inclusion of some local and state officials as well as federal officials present at consultations, and some consultations being held outside of D.C. 

However, there is still room for improvement.   Many of us leave these meetings feeling like our time could have been spent more effectively elsewhere.   It is more or less the same cast of characters advocating for the same issues on the civil society side.  On the government side, it is a lot of the same officials listening to the same presentations, though there are some new officials at each meeting.  Often the government reports and responses at the human rights reviews in Geneva are not, or only somewhat, responsive to the civil society presentations at these consultations and other meetings.  

With the perfect storm of U.N. human rights reviews taking place this year, there will be many additional human rights consultations with the U.S. Government in the months ahead.  With more than a decade of experience with these consultations behind us, I propose that human rights advocates in the U.S. step back, take stock, and look at what we could be doing differently, towards more effective and impactful consultations and advocacy in general. 

 Below, I propose just a few steps that civil society should take.  These proposals aim to bring the consultations more in line with the human rights framework and human rights principles, such as the rights to civic participation, equality, and self-determination.  I also want to encourage others to weigh in with their own proposals, as well.

 Towards more effective and impactful human rights consultations with the U.S. Government, civil society should:

 1)      Prioritize supporting persons directly affected by human rights issues to speak during the consultations.  Too often the civil society presenters are academics, students, lawyers, and others speaking on behalf of persons directly affected.  We, as civil society, need to do a better job of making sure that the voices of the people directly affected are brought to the table.  Not only because presentations made by persons directly affected are more impactful, but because it is empowering and fulfilling for the people presenting.  Presentations by persons directly affected can be recorded and played during the consultation, video conferencing technology should be available, and, as a last resort, testimony can be read aloud if travel is impossible and technology fails.

 2)      Offer to host human rights review consultations outside of D.C.  The U.S. Government should be organizing most, if not all, human rights consultations outside of D.C.  Persons directly affected by the human rights issues are most often not in D.C. and it is difficult and expensive to have civil society travel to D.C.  Moreover, technology is available to live stream consultations to government offices in D.C., making travel for the government officials less of a problem.  To encourage consultations to be held outside of D.C., civil society should offer to host the consultations.  For example, universities across the U.S. could host the human rights consultations.  Universities have large event spaces that go largely under used during the summer months, as well as the necessary communications technology to live stream the events.  Universities also have an interest in having their students benefit from observing and participating in these consultations. 

 3)      Make thoughtful and tangible recommendations and asks of the government.  Civil society presenters can do a better job of making requests that keep in mind which government agencies are participating in the consultation and what policies are within their reach to change or effect.  We may not know exactly which government officials are present, but we should know which agencies are present and recent advocacy by civil society has led to a broad group of agencies and high-level officials being present at consultations.  Presenters can tailor requests keeping in mind the audience.  Requests in shadow reports and written submissions can be and should be broader, but with many civil society members desiring to present and limited time for presenting, requests made during consultations should be relevant to the officials in the room.  

 

 

 

 

 

 

"Gruesome Spectacles" and Other Recent Scholarship on Domestic Human Rights

Two new publications (one authored by, and one edited by, Austin Sarat) offer perspectives on two important human rights issues facing the U.S.: the death penalty, and efforts to rebuild New Orleans post-Katrina.

On the death penalty: Austin Sarat's new book Gruesome Spectacles: Botched Executions and America's Death Penalty (Stanford UP 2014)  is noted here.  Sarat's investigation, a careful historical analysis, uncovers that "about three in a hundred American executions over the past century or so have gone badly wrong."  The botched execution in Oklahoma is perhaps the most recent example.  Note that the above book link includes a fascinating, in-depth interview with Sarat about the book and his investigation.

On Katrina issues, Austin Sarat is the editor of Studies in Law, Politics, and Society (Volume 63), Emerald Group Publishing Limited.  Jean Carmalt's contribution to this volume, Human Rights in Context: International Law and Spatial Injustice in New Orleans, Louisiana, describes the impact of NGO advocacy post-Katrina in shaping UN official's understanding of the relationship between geography and human rights, and the spatial dimensions of the human rights violations. Carmalt previously wrote on the uses of geography in human rights work in the Human Rights Quarterly, here.

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Business and Human Rights: American Exceptionalism or Corporate Protectionism?

In case you missed it, the Atlantic ran a terrific essay on May 28 titled Companies Commit Human-Rights Abuses in America, Too: And Yet Americans Tend Not to Describe the Exploitation that Way, by Christine Bader.  We could call this another instance of American exceptionalism - and the comments posted to Bader's article bear out the idea that many readers find minimum wage violations, work exploitation and even trafficking unworthy of the "human rights violation" appellation when the abuses happen in the U.S.

In the weeks since this article appeared, the UN has approved negotiation of a binding treaty on business and human rights for transnational corporations.  However, exceptionalism appears to run deep.  The U.S. voted against initiating these negotiations and has urged other nations to boycott the process.  The European Union is also opposing the treaty proposal.  For a fascinating, in-depth look on where things stand with this contentious process, see this July 10 article by reporter Carey Biron.

Meanwhile, many transnational companies -- such as Sodexo and Christine Bader's former employer BP -- have embraced human rights language and the existing Guiding Principles on Business and Human Rights (plus public pressure) have clearly had some impact in encouraging and promulgating such analyses.  The question is not whether businesses have identified the human rights issues that intersect with their work, it's accountability. 

One of the U.S.'s arguments against the treaty is that there are legal difficulties with holding a private party accountable under international law, which generally binds nations rather than private actors.  But there are no such impediments to implementing human rights standards in domestic law, or -- on the international level -- to holding nations accountable for establishing and enforcing such binding domestic standards. The U.S. resistance to a binding treaty suggests, in fact, the the government is fully aware of the many corporate human rights violations in the U.S. that would come to light with more rigorous domestic enforcement of human rights standands.  And that more rigorous scrutiny and enforcement might frustrate the modus operandi of many companies in the manufacturing sector and others. 

Maybe the U.S. position is not a case of American exceptionalism, after all, but more accurately, corporate protectionism.

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Part II: Historic Perspectives on Racial Discrimination

Co-editor Brian Howe continues his discussion of disturbing human rights violations when US defendants are denied racially balanced jury pools.  Writes Brian:

 

In 2009, McLynnerd Bond Jr. confessed to a murder he claims he didn't commit.  That year, a Gary, Indiana detective sat down to interrogate Bond, in connection with a 2007 murder.  Bond, who is black, repeatedly denied any involvement in the crime.  About two hours into the interrogation, the detective turned up the pressure: 

 

    "Don’t let twelve people who are from Schererville, Crown Point—white people, Hispanic people, other     people that aren’t from Gary, from your part of the hood—judge you. Because they’re not gonna put     people on there who are from your neck of the woods. You know that. They’re not gonna be the ones to 

    decide what happens to you. You know that. I know that..." 

 

The ploy was effective:  Bond confessed less than an hour later.  He very quickly recanted the confession, however, and moved to suppress it as involuntary.  The issue wasn't actually whether Bond would have received a fair trial, but whether the threat of a biased jury was unconstitutionally coercive.  Bond argued that the detective's threat-- to put him before an all white jury and implicitly deprive him of a fair trial-- was improper. Although the trial court explicitly condemned the detective's threats as inappropriate, it failed to find any precedent explicitly on point, and therefore refused to throw out the confession.   The appellate court also upheld the confession.  Although it also disapproved of the "racial overtones" in the detective's interrogation, the appellate court noted that most varieties of police deception have been upheld.  According to the court of appeals, because Bond had been read his rights, and was a reasonably  intelligent person, the deception here could not have directly caused an involuntary confession.

 

The decision prompted a brief but scathing dissent from Court of Appeals Judge Kirsch.  It reads, in its entirety:

 

    "A police officer sworn to enforce and uphold our laws in a fair and impartial manner calls an African     American man an obscene name and screams at him that he is not going to get a fair trial in Crown         Point, Indiana because there will be white and Hispanic people on the jury who are not from Gary,     Indiana—his 'part of the hood.'

    The trial court stated that the officer's comment 'causes great concern to the Court, and is strongly     discouraged.' My colleagues 'do not approve of the comment.' Our Supreme Court has stated it does     not condone 'deceptive police conduct.'

    Yet, each time courts allow such conduct, they implicitly sanction it and encourage the next police         officer in the next interrogation to go a bit further, to be more offensive, more racist and more deceptive.

    I would go beyond expressing “concern,” “discouraging,” “not approving” and “condoning,” and I would     expressly condemn the police conduct that occurred here. Accordingly, I would reverse the trial court's     decision to deny the motion to suppress and remand for further proceedings."

 

Bond appealed to the Indiana Supreme Court, which on May 13, 2014, reversed the court of appeals and held that the confession should have been suppressed as involuntary. The decision, well-written and sharp, is here:  http://www.in.gov/judiciary/opinions/pdf/05131402SHD.pdf.

 

 Multiple parts are quote-worthy, but this one reaches to the core of the matter:

 

    "So today we do not find ourselves reviewing a case in which an officer misled or deceived a suspect as     to the evidence held against him, or one in which the police falsely claimed that the victim of a murder     still lived, or one in which police had a good faith basis for making a technically false statement. We     have upheld the voluntariness of confessions despite the police deception in such cases. 

 

    "Instead, in this case Bond was intentionally deceived as to the fairness of the criminal justice system     itself because of the color of his skin. Regardless of the evidence held against him or the circumstances     of the alleged crime, he was left with the unequivocal impression that because he was African American     he would spend the rest of his life in jail. Unless he confessed. And in unfortunate days gone by, this     might have been the case. But no one wants to go back to such a time or place in the courtroom, and     so we will not allow even the perception of such inequality to enter the interrogation room." 

 

It's hard for me to know how to  react to this case from a human rights perspective.  Should one be relieved that the Indiana Supreme Court held these threats to be unconstitutionally coercive?  Or upset that two lower courts were prepared to let the conduct stand?  It's comforting that a detective in Indiana can no longer use the threat of an unfair trial against a black man to coerce a confession.  But it seems more disturbing that this was even a hard question in 2014.  

 

 

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Historic Perspective on Racial Discrimination in Police Interrogation and Prosecution

Co-editor Brian Howe discusses the lengthy US history of racial discrimination in jury pool selection and the contemporary consequences of actual and threatened denial of a racially balanced jury to defendants of color.  Writes Brian:

The impact of race on the US criminal justice system has been one of the most significant human rights issues in our country's history.  

Barely one hundred years ago, in 1906, a black man named Ed Johnson was charged with raping a white woman in Hamilton County, Tennessee.  According to his later habeas petition, the Tennessee prosecutor intentionally removed all blacks from the jury and grand jury, and local whites threatened his defense attorney with violence.  Johnson was quickly convicted and sentenced to death.  He filed a habeas corpus petition to the local federal district court, claiming that the State's deliberate racial stacking of the jury deprived him of his due process rights to a fair trial.  The district court denied his petition, which Johnson ultimately appealed to the US Supreme Court.  The Supreme Court, rallied by Justice Harlan, agreed to hear the case and stay Johnson's execution.  Later that same day, a white mob stormed into the jail where Johnson was held, dragged him to a nearby bridge, and lynched him.  A leader of the mob pinned a note to Johnson's body reading: "To Justice Harlan.  Come and get your n____r now."

 

Hamilton County sheriff Joseph Shipp was ultimately charged and convicted of contempt, for violating the stay of execution by allowing the lynching (to this day, the only criminal trial held before the Supreme Court in its original jurisdiction).  He served less than three months in prison for his role in Johnson's death, and received a hero's welcome on his return home to Tennessee. For more information on the trial, see:

 

http://law2.umkc.edu/faculty/projects/ftrials/shipp/trialaccount.html 

 

The US Supreme Court would eventually hear the issue Johnson raised.  In a series of cases culminating in Batson v. KY, the Court explicitly held that the Constitution does not allow the State to intentionally exclude minorities from a jury pool using preemptive strikes

 

Part II will discuss the 2014 Bond case addressing issues of racial jury exclusion nearly 100 years post-Johnson in the context of police interrogation.

  

 

A Different Kind of National Human Rights Institution

In just a few months, on September 20, 2014, Canada will open its new Human Rights Museum, reputedly the first museum of its kind in the world.  Located in Winnipeg, the Canadian Museum for Human Rights is supported by private donations, the national Canadian government, the provincial government of Manitoba and the city government of Winnipeg.  The Museum was created through national legislation passed in 2008, with the purpose of exploring "the subject of human rights, with special but not exclusive reference to Canada, in order to enhance the public's understanding of human rights, to promote respect for others and to encourage reflection and dialogue."

At a time when "human-centered design thinking" is in vogue, the museum is putting those principles into practice in designing its educational exhibits.  A major focus  of the initial exhibits will be storytelling, and thousands of interviews were conducted around the country in preparation for mounting these exhibits.  The museum's website promises, for example, that "equality rights are relayed through stories about Indigenous Peoples, women, children, persons with disabilities and the LGBTTQ* community."

The museum has not been completely without controversy, however.  A number of groups have expressed concern that the exhibits will privilege some human rights violations over others, through the placement and relative size of the exhibits. Recently, First Nation groups in Winnipeg have criticized the museum's reliance on a water source traditionally used by native tribes; the museum has responded that the city of Winnipeg made that choice, not the museum.

Should there be a space on the Washington Mall for a U.S. counterpart to this Canadian innovation? Is it preferable to leave human rights to be addressed through private, independent museum initiatives such as the planned Armenian Genocide Museum of America, which can be more openly critical of the U.S. government's actions?  Or are U.S. human rights issues already adequately addressed through the Holocaust Memorial Museum and the National Museum of the American Indian, among other national institutions?

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How the Hobby Lobby Decision Compounds Intimate Partner Abuse

by Leigh Goodmark

The Supreme Court’s recent decision in Burwell v. Hobby Lobby Stores, Inc. is an affront to all women’s human rights, but may pose particular challenges for women subjected to two particular forms of intimate partner abuse—economic abuse and reproductive abuse.  Huge numbers of women subjected to abuse report that their partners restrict their access to economic resources.  Reproductive abuse—which includes denying women access to birth control—is a lesser known but powerful form of abuse.  As Alyssa Peterson at the Center for American Progress explains (http://talkpoverty.org/2014/07/03/hobby-lobby-supreme-court-harms-survivors-domestic-violence-low-income-women/), for those women who are denied access to economic resources, an employer’s refusal to cover contraception as part of their insurance plan may mean that those women are unable to access contraception at all.  As the Court recognized in Planned Parenthood v. Casey, and as Justice Ginsburg began her dissent in Hobby Lobby, “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 856 (1992).   The Court’s decision in Hobby Lobby will operate to deny some women subjected to both economic and reproductive abuse the rights of full citizenship.

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John Adams and the Law of Nations: A Fourth of July Blog

On this July 4, it's appropriate to note that founder John Adams' influence persists today, and supports U.S. examination of comparative and international law.

In late 2013, the Massachusetts Supreme Judicial Court decided Diatchenko v. District Attorney.  The issue in the case was whether the U.S. Supreme Court's decision in Miller v. Alabama, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), was retroactive.  In Miller, the Court held that imposition of a mandatory sentence of life in prison without parole on individuals who were under the age of eighteen at the time they committed murder is contrary to the prohibition on "cruel and unusual punishments" in the federal Constitution's Eighth Amendment. 

Determining that the Miller ruling was substantive, the Massachusetts court accorded retroactive effect to the U.S. Supreme Court's decision in Miller.  And in footnote 16 of its retroactivity decision, the Massachusetts SJC put the Diatchenko opinion in an international and historic context:

"In concluding that the imposition of a sentence of life in prison without the possibility of parole on juveniles under the age of eighteen violates the constitutional prohibition against "cruel or unusual punishment[]" in art. 26, we join a world community that has broadly condemned such punishment for juveniles. The United Nations Convention on the Rights of the Child, "ratified by every nation except the United States and Somalia, prohibits the imposition of life imprisonment without the possibility of release . . . for offences committed by persons below eighteen years of age" (quotations omitted). Graham v. Florida, 560 U.S. at 81, quoting United Nations Convention on the Rights of the Child, art. 37 (a), Nov. 20, 1989, 1577 U.N.T.S. 3. As John Adams recognized over 215 years ago, we belong to an international community that tinkers toward a more perfect government by learning from the successes and failures of our own structures and those of other nations. See J. Adams, Preface, A Defence of the Constitutions of Government of the United States of America (1797)."

Happy Fourth!