Friday, May 29, 2015
This week, the Nebraska legislature passed a bill that abolishes the death penalty in that state. The vote makes Nebraska the 19th state to do so, in addition to the District of Columbia.
This vote is amazing in contemporary U.S. politics. As the New York times reports, Nebraska is the first conservative state to do so in forty years. Yet, what is truly amazing about this legislation is that Independents, Democrats and Republicans worked together to accomplish passage. When initially passed, Nebraska Governor Ricketts not only opposed the bill, but vetoed it. The coalition favoring abolishment held together and managed to gather support sufficient to overcome the veto.
"Whenever anything historic occurs, it's never the doing of one person," said Sen. Ernie Chambers, an independent who introduced a repeal measure 38 times. "I've been pushing for this for 40 years, but all of this time it's never been done." Ricketts, on the other hand, lashed out with the now common vitriol of a politician not getting his way saying "My words cannot express how appalled I am that we have lost a critical tool to protect law enforcement and Nebraska families."
The victory brings a missing maturity to coalition building. While many view the death penalty as a violation of human rights, the reality is that much support for the bill came from conservative legislators who view the death penalty as inefficient and expensive.
Motivation becomes secondary in accomplishing common goals. Frustration over botched executions, the cost of years of appeal or eliminating what many see as a barbaric violation of human rights becomes secondary as legislators unified to defeat the veto. Nonetheless, the vote resulted in re-igniting conversation on the important human rights goal of eliminating punishment by death .
Representatives coming together to address a common goal, without vitriol, is how politics used to be. Thank you, Nebraska, for not only eliminating the death penalty, but in ignoring partisan politics to accomplish a common goal for the good of the state.
Thursday, May 28, 2015
Editors' note: Prof. Sara Rankin submits this post written by students Justin Olson, Kaya Lurie, and Javier Ortiz. This piece is cross posted with the Legislative Law Profs Blog.
Imagine a life where almost everything you did was prohibited. You could not sit, lie down, obtain food, use the restroom, or sleep with any protection from the elements. In effect, your very existence would be a crime. The idea seems reprehensible; yet for a subsection of our community, this is their reality to varying degrees. Throughout Washington State and our nation as a whole, people experiencing homelessness are criminalized for performing the sort of basic, necessary, live-sustaining functions described above. While a vocal segment has actively supported the policy of criminalization, the majority of society has simply been content to look the other way.
In the Fall of 2014, Professor Sara Rankin established the Homeless Rights Advocacy Project (HRAP) at the Seattle University School of Law. Under Professor Rankin’s guidance, the founding cohort of HRAP students undertook the most comprehensive assessment of criminalization in any state in the country. (The four resulting policy briefs may be downloaded from the HRAP webpage.) What the students ultimately found was disturbing and should encourage society to reexamine the impact of these criminalization laws.
The impetus to remove people experiencing homelessness from public view mirrors the same reasoning that led to the enactment of historical discriminatory laws, including vagrancy laws, Jim Crow segregation, and Anti-Okie laws. Many of these historical laws were enacted to prevent members of society from utilizing public space because they exhibited traits that society deemed to be undesirable. This undesirable label criminalized people who were deemed vagrants, ugly, or nuisance. This similar type of criminalization appears in ordinances targeting people experiencing homelessness and how they are enforced.
Not surprisingly, present-day homeless criminalization laws have a discriminatory impact on groups who already suffer systemic marginalization. Certain marginalized groups, including racial minorities, women, LGBTQ youth, individuals with a mental disability, formerly incarcerated individuals, and veterans, are disproportionately represented in homeless populations compared to general populations. This disproportionate impact of homelessness on marginalized groups is caused in large part by systemic discrimination. Society has repeatedly rejected laws that directly discriminated against many of these same marginalized groups, and therefore should be compelled to reexamine the impact of these homeless criminalization laws.
If the moral arguments do not persuade you to think that homeless criminalization laws are bad policy, there is also a compelling financial argument. Criminalizing individuals experiencing homelessness is expensive and ineffective. Many studies around the country, including that of HRAP, have demonstrated significant savings on enforcement, adjudication, and incarceration when funds are directed toward the creation of affordable housing instead of criminalization. For example, Seattle and Spokane could save taxpayers over $2 million annually if funding was directed from criminalizing homelessness to providing housing. While this number is substantial—and quite compelling—it is just the tip of the iceberg of the total cost that cities could save if the funding spent on homeless criminalization laws was directed toward housing.
Notwithstanding the ineffective and unjust nature of these laws, homeless criminalization has been increasingly embraced by local jurisdictions in Washington State. Criminalization efforts have been on a steep rise since the turn of the 21st century and do not appear to be slowing down. This creates big problems for cities because of the wastefulness of enforcement. Individual cities like Seattle and Spokane spent millions of dollars over a five-year span just to enforce these ordinances, and yet homeless numbers continue to rise and the cities are no better off than they were.
Unfortunately, changing course is an uphill battle. Visible poverty makes everyone uncomfortable; it is a reminder of what doesn’t work in our society. Housing is too expensive, there are not enough jobs that pay a living wage, and social and health services are grossly underfunded. People are afraid of what would happen if these laws were repealed, afraid of the discomfort they are sure to feel as the scope of homelessness can no longer be ignored.
However, avoidance of a problem is never a sustainable solution, and fear is never a valid reason to deny people of their civil liberties. The persistent prevalence of people experiencing homelessness in public spaces, sitting on sidewalks and camping in parks, should alert cities that they have a problem and criminalization is not the solution. Addressing the root of homelessness is a necessary discomfort, one we should all endure in order to reach the same epiphany: homeless people are people, they are mothers and fathers, brothers and sisters, sons and daughters. And we as a society are failing them.
Wednesday, May 27, 2015
Radical Teacher, a "socialist, feminist, and anti-racist journal on the theory and practice of teaching," is soliciting proposals for an issue on teaching about human rights." Past journal issues addressing human rights themes include the current issue on Teaching Across Borders, the 2014 issue on Radical Teaching and the Food Justice Movement, and the 2013 issue on Occupy and Education.
The new Call for Papers on "teaching human rights" explains:
"We imagine a range of responses from exploring how teaching about human rights can be accomplished from a radical point of view to critiques of how and why some human rights education programs, or human rights discourse in general, sideline radical perspectives. We are primarily interested in essays/articles but would also consider interviews, poetry, and other types of submissions."
Submission guidelines are available here.
Tuesday, May 26, 2015
Many years ago I read Miller and Swift's Words and Women (1976). The book demonstrated how language has been used to separate women from men in ways that assign women to lesser status. The authors brought to my consciousness the power routine language has in creating bias in how we view other human beings.
Recently Reality Check published a piece by Victoria Law and Rachel Roth: Names Do Hurt: The Case Against Using Derogatory Language To Describe People in Prison. Law and Roth remind us on the power of language to de-humanize one segment of our population.
The authors write, "The term 'inmate' is the most pervasive of these words; it is widely used by judges, prison and jail officials and staff, and the media. Far from being neutral, this word objectifies and disparages people who are imprisoned."
Desensitization is a tool for those who administer cruelty. In its extreme, administering the death penalty is difficult to manage if the man or woman killed is appreciated for their humanity. Less dramatic, but equally chilling, referring to those who are incarcerated as "inmates" disguises the mission of prisons. Traditionally we understand incarceration to serve two purposes, the first being punishment and the second rehabilitation. Most would agree that rehabilitation is at best a limited goal of most states. De-humanizing those in prison assists those who advocate punishment only and view rehabilitation efforts as luxuries to which those who are in prison are not entitled.
Once we de-humanize the population we have no reason to consider what could be done to respect the humanity of men and women in prison. Our use of culturally accepted prison language, whether unintentional or not, ties us to the conspiracy of those whose goals are punishment, no matter how cruel or counterproductive.
Monday, May 25, 2015
Editor's Note: Continuing their report on the U.N. Human Rights Committee's review of the United States' treatment of juveniles, Prof. Soohoo and students Tawakalitu Amusa and Chelsea Guffy grade and discuss U.S. compliance with HRC recommendations.
[The U.S.] should encourage states that automatically exclude 16 and 17 year olds from juvenile court jurisdictions to change their laws. Grade: C
In July 2014, New Hampshire passed a law requiring that all cases involving individuals under 18 originate in juvenile courts. Nine states, however, still exclude children under 18 from juvenile court jurisdiction. Currently, there are legislative campaigns to raise the age in New York and North Carolina, the only two states that exclude both 16 and 17 year olds from juvenile court jurisdiction. In NY, a governor’s task force recommended comprehensive juvenile justice reforms including expanding juvenile court jurisdiction, and the budget passed in April allocates $135 million towards the reform. The North Carolina legislature is considering a bill that would allow the juvenile system to hear cases involving 16 and 17 year olds charged with misdemeanors, which if passed, would reflect a small but significant step forward for the state.
[The U.S. should ensure] that juveniles are not transferred to adult courts. Grade: C-
All states have transfer laws that allow or require youth under 18 to be tried as adults in certain circumstances. However, some states are making efforts to decrease the frequency that youth are tried as adults. CFYJ reported that in 2013-14, fourteen states and Washington, D.C. engaged in legislative efforts to reform and limit the ways that youth can be transferred into adult courts. Two states, Nebraska and Indiana, passed legislation making it more difficult to try youth as adults for certain offenses. In Indiana, legislation was passed to give juvenile courts jurisdiction over youth charged with gang related activity and to require that youth tried as adults serve their sentences in juvenile facilities.
[The U.S.] should also ensure that juveniles are separated from adults during pretrial detention and after sentencing. Grade: C-
National standards promulgated under the Prison Rape Elimination Act (PREA) require that youth be separated from adults in jails and prisons. In 2014, only two states certified full compliance with these standards, and seven states and one territory refused to comply with PREA altogether. The majority of states (46 states and territories) submitted assurances that they are working toward compliance.
States were due to submit new certification forms last week. As of the May 15, 2015 deadline, 10 states had submitted certifications of compliance and 36 states and 4 territories had issued assurances. Three states that refused to comply with PREA in 2014, Indiana, Florida, and Nebraska, switched to assurances in 2015. Although the switch and the increased number of certifications is a positive sign, there is continuing concern that there is no deadline by which states must come into compliance and that they can continue to issue assurances in perpetuity. Further there are continuing attempts in Congress to change and potentially weaken the financial penalties imposed on states that fail to comply with PREA.
The [U.S.] should prohibit and abolish the sentence of life imprisonment without parole for juveniles. Grade: C
Following the Supreme Court decisions in Grahamand Miller, the U.S. Supreme Court significantly limited the imposition of juvenile life without parole sentences. However, the Supreme Court decisions still allow states to sentence youth who are convicted of homicide crimes to be sentenced to life without parole if they have an individualized sentencing hearing (ie they are not given a mandatory sentence).
Last week Vermont passed legislation completely abolishing juvenile life without parole sentences. West Virginia and Hawaii passed similar legislation in 2014 bringing the total number of states that do not impose juvenile life without parole sentences for any offense to 14 states plus the District of Columbia. State courts continue to disagree about whether Miller should be applied retroactively. On March 23, 2015, the United States Supreme Court agreed to hear Montgomery v. Louisiana to resolve the retroactivity question.
[The U.S.] should impose strict limits on the use of solitary confinement . . . and abolish the practice in respect of anyone under the age of 18.
IWHR did not have comprehensive data around changes in solitary confinement laws and policies. However, the following positive developments have occurred in New York. In New York City, Rikers Island, the second largest jail in the U.S., excluded youth under 18 from the punitive segregation and is slated to extend the ban to youth under 21 as of January 1, 2016 contingent on the provision of sufficient resources for staffing and programming alternatives. The HALT Solitary Confinement Act is gaining momentum in the NY State Legislature. The bill would bar the use of solitary for youth under 21 as well as the elderly, pregnant women, LGBTI individuals and those with physical and mental disabilities and would ban extreme isolation for all populations beyond 15 days.
This year, there has been a steady stream of international criticism exposing U.S. youth justice practices that violate human rights. Although the U.S. continues to be in violation of international standards, there have been significant reform efforts at the state level. Many of these efforts recognize that justice policies must respect the human rights of youth and have begun to explicitly push for reforms that meet our international human rights obligations. For instance in New York, Assemblyman Daniel O’Donnell introduced a bill to reform solitary confinement that emphasized the need to comply with recommendations from the U.N. Committee Against Torture. Over the next year, we hope to see increasing activism at the state and federal level to bring U.S. youth justice polices into compliance with international human rights standards.
This post first appeared at Juvenile Justice Information Exchange
Friday, May 22, 2015
by: Cynthia Soohoo, Tawakalitu Amusa and Chelsea Guffy
Editor's note: This post, by Prof. Soohoo and students Amusa and Guffy, is part one of an assessment of the United States regarding treatment of juveniles. Part two will address specific issues and grades assigned to the U.S.
Last spring, the U.N. Human Rights Committee (HRC) reviewed U.S. compliance with the International Covenant on Civil and Political Rights and called out multiple ways that U.S. treatment of youth in conflict with the law violates human rights standards. The HRC review began a year of steady international criticism.
- In September and December and U.N. Committees Against Racial Discrimination and Torture reiterated that the U.S. must reform its youth justice policies.
- In March, the U.N. Special Rapporteur on Torture, Juan Mendez, issued a report emphasizing the use of alternatives to detention to protect children from torture and ill-treatment. The report singled out the U.S. as the only country that imposes life without parole sentences on children.
- Last week, during the U.S.’s Universal Periodic Review (a peer review of the human rights record of each country in the U.N.), several countries emphasized that youth under 18 should not be in the adult criminal justice system and recommended that the U.S. end life without parole sentences for juveniles in all circumstances.
One year after the HRC review, CUNY Law School’s International Women’s Human Rights Clinic (IWHR) and its partners issued a Report Card to evaluate U.S. progress on youth justice issues. The Report Card finds that the U.S. continues to be in violation of its human rights obligations and has not taken satisfactory action to respond to the recommendations. For more in depth information about state reforms check out the Campaign for Youth Justice’s State Trends report.
This post first appeared in Juvenile Justice Information Exchange
Thursday, May 21, 2015
Readers of this blog will be interested in debate currently taking place on the Harvard Law Review website. The May 2015 issue of the law review includes an article by Ganesh Sitaraman and Ingrid Wuerth titled The Normalization of Foreign Relations Law. The Harvard Law Review Forum has, in turn, published series of responses to the article, by Stephen Vladeck, by Curtis Bradley, and by Carlos Vasquez. Other bloggers are also beginning to chime in.
Here is the abstract of the Sitaraman and Wuerth article:
The defining feature of foreign relations law is that it is distinct from domestic law. Courts have recognized that foreign affairs are political by their nature and thus unsuited to adjudication, that state and local involvement is inappropriate in foreign affairs, and that the President has the lead role in foreign policymaking. In other words, they have said that foreign relations are exceptional. But foreign relations exceptionalism — the belief that legal issues arising from foreign relations are functionally, doctrinally, and even methodologically distinct from those arising in domestic policy — was not always the prevailing view. In the early twentieth century, a revolution took place in foreign relations law. Under the intellectual leadership of Justice Sutherland, the Supreme Court adopted the idea that foreign affairs are an exceptional sphere of policymaking, separate from domestic law and best suited to exclusively federal, and primarily executive, control. The exceptionalist approach has dominated foreign relations law since that time, but it has always had questionable foundations.
Since the end of the Cold War, there has been a second revolution in foreign relations law, one whose scope and significance rival the Sutherland revolution, but one that has gone largely unrecognized. Over the last twenty-five years, the Supreme Court has increasingly rejected the idea that foreign affairs are different from domestic affairs. Instead, it has started treating foreign relations issues as if they were run-of-the-mill domestic policy issues, suitable for judicial review and governed by ordinary separation of powers and statutory interpretation principles. This “normalization” of foreign relations law has taken place in three waves. It began with the end of the Cold War and the rise of globalization in the 1990s. It continued — counterintuitively — during the war on terror, despite the strong case for exceptionalism in a time of exigency. And it has proceeded, during the Roberts Court, to undermine justiciability, federalism, and executive dominance — the very heart of exceptionalism.
This Article documents the normalization of foreign relations law over the last twenty-five years. It demonstrates how normalization can be applied to a wide variety of doctrines and debates in foreign relations law, ranging from the proper interpretation of Youngstown to the applicability of administrative law doctrines in foreign affairs to reforms in the foreign sovereign immunity and state secrets regimes. Ultimately, this Article argues that courts and scholars should embrace normalization as the new paradigm for foreign relations law.
Wednesday, May 20, 2015
The American Association for the Advancement of Science (AAAS) has long been a thought leader in the effort to "bring human rights home" to the U.S. That leadership continues with the Association's monthly Science and Human Rights Report. Check out the May 2015 issue here. Resources highlighted include recommended readings, upcoming conferences, job listings, a webinar series that includes topics like Ecology and Human Rights, and a Human Rights 101 brief for college students.
Beyond its clearinghouse role, a major contribution of the AAAS is the Association's "On-Call Scientists" initiative -- a network of 876 scientists, engineers, and health professionals who are interested in donating their time and expertise to support human rights projects. Further, the AAAS is stimulating new thinking on science and human rights through its essay competition for undergraduate and graduate students, deadline May 22, 2015: the AAAS Science and Human Rights Coalition Essay Competition.
Finally, want to keep up with all of this? You can subscribe to the AAAS Science and Human Rights Mailing List here.
Tuesday, May 19, 2015
By Yujin Chun & Carolyn Wald, Cornell Law School Students in the Appellate Immigration Asylum Clinic (with Professor Sital Kalantry)
Marta Sanchez* has lived in a cell for over a year. She has not seen her parents and three children in even longer. She wears a standard-issue green jumpsuit and sleeps on a standard-issue mat. In the recreation area of the facility, Marta sits among prisoners. From the outside, it appears there are few differences between them. But the prisoners have at least one thing Marta does not: a criminal conviction. Ironically, this distinction affords these prisoners a luxury that Marta, and others like her, are not provided: a lawyer.
Marta is an asylum-seeker from El Salvador who fled to the United States in January 2014 to escape her ex-partner who, during and beyond their five-year relationship, beat, raped, starved, threatened, and stalked Marta despite her attempts to escape him. She also began receiving extortion threats from an infamous gang with which her abuser was associated. Having seen her family friend “pulled to pieces” by the same gang not a year earlier, Marta went into hiding until she began her arduous journey to the United States. She was apprehended at the border, where she claimed asylum. Marta was fortune to have been given bond, but neither she nor anyone she knew could afford to pay the astronomical $7,500. Thus began her detention, with no end in sight. .
At her hearing, Marta explained her story – how her partner savagely beat her and her young children, how the police refused to help her because it was a “private matter” – and the Immigration Judge found her credible. Yet, she was denied asylum. Without a lawyer, Marta was left to represent herself in court. Marta did not know she was supposed to establish that she was a part of a “particular social group” or that she had to show “government acquiescence” to her “past persecution.” She does not speak English and had trouble communicating through a translator. She did not know to argue that her case was nearly identical to Matter of A-R-C-G-, a case decided by the Board of Immigration Appeals in August that held that domestic violence could be a basis for granting asylum. It is an immigration judge’ duty to develop the record when an immigration does not have representation, but immigration judge’s across the country are interpreting Matter of A-R-C-G in a formalistic way to deny legitimate claims. As she began the appeals process (this time with pro bono assistance) she was staring into what seemed like endless detention.
Had Marta been a criminal defendant instead of someone seeking refuge in the United States, the Sixth Amendment of the U.S. Constitution would have guaranteed her the assistance of counsel for her defense. This right applies to all felony prosecutions and to any misdemeanor prosecutions in which jail time or suspended jail sentence is imposed. Despite that Marta has been detained in prison-like conditions and would face serious harm—perhaps even death—upon her deportation to El Salvador, the Sixth Amendment right to counsel does not extend to her because immigration proceedings are not criminal.
Asylum-seekers like Marta have broken no laws. Claiming asylum is a legitimate and legal pathway to residency in the United States, yet the current system subjects people like Marta to prison-like conditions with fewer rights than murderers and rapists. That the United States continues to pretend that immigration proceedings are mere civil proceedings – not serious enough for Sixth Amendment rights to attach – is a travesty of justice. The current method of processing and holding asylum seekers is practically indistinguishable from that of convicted criminals. The detention center where Marta is held is proof of that. The center is owned and operated by Corrections Corporation of America (CCA), the largest private prison contractor in the nation. Further, like the center where Marta is held, many CCA-owned facilities are dual-purpose centers, housing both convicted criminals and detainees awaiting asylum proceeding under the same roof. If our country is going to treat detainees like criminals, shouldn’t we also give them a right to counsel?
* The name has been changed to protect the detainee’s identity.
Monday, May 18, 2015
The trial of Michael Johnson in Missouri has been watched by those living with HIV and their advocates. Johnson, 23, was charged with one count of recklessly infecting a person with HIV, one count of attempting to recklessly infecting a person with HIV and three counts of recklessly exposing partners to HIV. It is impossible to separate racism and homophobia from other motivations in the prosecution.
According to a statement issued by Aids United, Johnson is African American and his accusers are white. Only one of the 12 jurors was African American. The vast majority of jury pool members believed homosexuality is a sin. Half the jury pool believed that homosexuality is a choice.
Even more troubling were prosecution witnesses who called witnesses who referred to HIV as terminal. Thirty states have laws criminalizing exposure behavior. "Most states have not updated their laws to reflect our modern understanding of the effectiveness of today’s antiretroviral therapies and prevention strategies like consistent condom usage and pre-exposure prophylaxis (PrEP)" Some states have laws criminalizing spitting and scratching even though there is no evidence that either action is a method of infection.
Catherine Hansenns is Executive Director of The Center for HIV Law and Policy and has spoken extensively on the criminalization of HIV. In response to the verdict, which could carry a decades long sentence, she said: "Michael Johnson's conviction for exposing one of his sex partners to HIV and attempting to expose four others... reinforces public hysteria and misconceptions about HIV." Hansenns points out that those with human papilloma virus are not held to this criminal standard even though the virus is known cause cancers.
Dr. Wendy Armstrong of Emory University School of medicine noted that “HIV is no longer a death sentence. Like herpes, it is an incurable but treatable viral infection. With treatment, a person living with HIV will in all likelihood live a normal life span.”
Criminalization raises issues of autonomy. Absent an abusive relationship, each partner is determined to make his or her own choices around sex, including safe sex. American discomfort with sex as well as the refusal to accept science is implicated as well. But more concerning is that criminalization is punitive without regard to consequences. Fewer individuals are likely to be tested. Without knowledge, one cannot be criminally charged.
Friday, May 15, 2015
Students in the Homeless Rights Advocacy Project, led by Professor Sara Rankin, at the Seattle University School of Law, have just published four issue briefs on homelessness in Washington. Among their findings are:
- Washington cities are increasingly criminalizing homelessness. Since 2000, communities have enacted laws that create over 288 new ways to punish visibly poor people for surviving in public space.
- Millions of dollars could be saved if cities would redirect funds used for enforcement of these laws toward affordable housing.
- Homelessness and poverty disproportionately impact people of color, women, LGBTQ youth, individuals with mental illness, and veterans.
- The greater the income gap between the rich and the poor, the higher the rates of enforcement of these laws.
- Modern anti-homeless ordinances share the same form, phrasing, and function as historical discrimination laws, such as Jim Crow.
HRAP researchers surveyed the municipal codes of 72 cities across Washington to identify ordinances that essentially criminalize homelessness in each jurisdiction. From this survey, researchers created a chart tracking every ordinance they could find. Seven of the cities were selected as case studies for closer examination of the enforcement and citations of these ordinances. The findings reveal that homeless criminalization exists regardless of where you live. From densely populated urban cities to scattered rural townships, city councils are increasingly passing these laws, often drafting them in a way that raises serious legal and policy concerns about how Washington treats its most vulnerable residents.
This brief shines a spotlight on the problems with these laws: how they are written, how they impact the homeless community, and how easily cities can fall into the trap of vilifying already vulnerable populations in the name of safety and public health. This report shows that the problem of criminalizing homelessness, so often buried in municipal codes, is both widespread and systemic.
Thursday, May 14, 2015
Arrest and criminal prosecution; civil protection orders; judicial trainings. Necessary band aids resulting from our refusal to address cultural change . As sincere as individual state actors may be in extending relief to those who experience intimate partner abuse, the efforts are overstated in significance. Legal process is responsive to immediate need and danger, but is inadequate to provide long term help or autonomy. Intimate partner abuse largely impacts the lives of women. Current legal responses permit systemic players and the public to believe that they are protecting a vulnerable population. And in part, we do address some of the needs of those who experience abuse. As a culture, we are good at "rescuing" women when they are in crisis but rarely provided them with the supports that will actually help them attain autonomy.
Appearance drives public consciousness.
Unseen is how the experience of intimate terrorism ultimately boomerangs on the target. Survivors are provided with insufficient financial support. The result is that the stress of financial insecurity and other adverse conditions are not relieved. Largely, the limited legal remedies do not free the psychic and emotional energy that permits individuals to implement realistic options to escape poverty and abuse.
If we truly wish to end intimate partner violence and gender discrimination, more radical remedies are needed. We need to change how we raise our boys. Are we willing to take that on?
Wednesday, May 13, 2015
Title IX is the foundation for the progress of female students on campus.
With the recent controversies around campus sexual assault, Title IX is the standard (and indeed the enforcement remedy) through which we view appropriate and effective responses. Some schools do better than others. As do some faculty.
Most schools consider faculty as responsible employers under Title IX.. This means that if a student discloses sexual harassment on campus the faculty member is required to make a report to the campus employee designated to receive Title IX complaints. But nowhere in Title IX is there an obligation to report the names of the parties when making reports. The Department of Education interprets the mandatory reporting obligation as including the obligation to name the parties involved. The Department is not insensitive to concerns of survivor autonomy. DOE suggests that faculty members warn students that faculty have an obligation to report the details, including names, of allegations of sexual harassment, including sexual assault. The Department then suggests that the faculty member refer the students to campus resources that provide confidentiality. Suggested referrals are to campus medical a counseling centers.
Most universities fail to provide faculty information on warning the student survivor early in the conversation,however, so many faculty do not know of the suggested caution. Those of us who are attorneys can claim privilege, as can faculty members who are therapists. But the majority of faculty are not so fortunate.
The lack of survivor autonomy in whether to disclose is disturbing. Nearly all university and colleges students have reached the age of majority. Yet faculty are obligated to report the most intimate details of a student experience simply because the student trusted that faculty member in disclosing what happened.
While the campus Title IX officer may decide whether or not to take the claim further, that decision is not the student's. The campus Title IX officer has a dilemma. The officer may honor student requests for anonymity and face possible public repercussions should the same perpetrator repeat the offensive behavior. Typically, protection of the employer will prevail and a complaint pursued by the Title IX investigator.
Presumably, if the student's initial thought was to pursue a complaint through the criminal justice system, s/he would report to the police in the first instance rather than engage the school's administrative process. As with domestic violence survivors, the police are often not the desired first step in disclosure or remedy. Students understand the complications that arise when a survivor reaches out for help. But most do not recognize that their trusted faculty advisor will be part of those complications.
I advocate for policy change so that faculty Title IX reporting obligations permit reporting that does not include the parties' names, if that is what the student chooses.
Tuesday, May 12, 2015
Editor's Note: Recently the US Human Rights Network completed a report on human rights abuses across the country. They have issued the following:
“With these [human rights] hearings and the report - Testimonies of Human Rights at Home: Documenting Injustice in the United States - we want to raise awareness about human rights concerns and violations that are under the radar. We are sharing one another’s stories and building our collective voice and power. This is human rights movement building—people coming together to talk about rights being violated and how to get justice.” –Ejim Dike, Executive Director of the US Human Rights Network
In 2012 and 2014-2015, the USHRN held human rights tours, hearings, and trainings in partnership with local organizations in five locations across the United States: Detroit in 2012; Gallup and Albuquerque, NM, Phoenix, AZ, New Orleans, LA in 2014 and McAllen, TX in 2015. These cities were chosen in part because they represent different regions across the United States that all have high rates of poverty, and the hearings were able to bring communities together to support families and children living in poverty and uphold and advance their human rights.
This report shows that because there is a systematic lack of enforcement structures across the United States we lack a strong human rights regime. The result is that we end up with similar rights violations time and time again across the United States from policies and practices that particularly effect the most vulnerable. The systemic issues covered in the report - violence and harassment; abuse of power by police - targeting of black and brown communities, immigrant communities, and transgender people; environmental racism and access to basic utilities; and access to reproductive health - all stem from the lack of enforcement structures and accountability mechanisms at both the state and local levels to protect human rights in the United States.
These hearings gave community members opportunities to share their lived experiences and to place them within the context of a larger human rights movement in the United States, thus helping build our collective voice and power for justice and human rights.
In order to advance the enjoyment of the full spectrum of human rights in the United States, USHRN makes the following recommendations:
1. The U.S. Government should authorize an independent National Human Rights Institution to institutionalize and expand the mandate and effective use of the Equality Working Group as a federal focal point for coordination and implementation of human rights obligations.
2. The federal government should adopt a National Plan of Action for Racial Justice to address systemic forms of racial discrimination.
3. The U.S. Government should comprehensively coordinate and advance implementation of ICCPR, CERD, and CAT and the recent concluding observations from 2014 of each of the related treaty body committees at all levels of U.S. Government, as well as the 2011 UPR recommendations.
4. The U.S. Government should take a strong position in favor of economic, social, and cultural rights in recognizing these rights as key human rights that make up the full spectrum of human rights in the United States.
5. The U.S. government should ratify without any reservations, understandings, or declarations (RUDs) the International Covenant on Economic, Social and Cultural Rights (ICESCR), as well as the Convention on the Rights of the Child (CRC); the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW); the Convention on the Rights of Persons with Disabilities (CRPD); and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.
6. The U.S. Government should implement all resolutions adopted by the United Nations Human Rights Council, the findings of Commissions of Inquiry, special procedures, and the Universal Periodic Review related to human rights in the United States.
Share the report! #HumanRightsAtHome #DocumentingInjustice
Monday, May 11, 2015
by Risa Kaufman, Columbia Law School Human Rights Institute
Writing from Geneva:
How does the United States account for its human rights record?
That was today’s question at the UN Human Rights Council in Geneva, as the United States government appeared for its Second Universal Periodic Review (UPR). The UPR is a "peer review" conducted through the UN Human Rights Council and requires that the human rights record of each country belonging to the UN be reviewed once every four years. The U.S.’s first UPR occurred in 2010.
I’m privileged to be participating in a civil society delegation of over 40 U.S. advocates, coordinated by the US Human Rights Network, in Geneva to observe the review. (If you weren’t awake at 3:00 am EDT to catch the live webcast, you can view an archived video of the review here.)
Over the course of this morning’s three and half hour session, approximately 120 countries asked questions of and offered recommendations to the U.S., on issues ranging from race discrimination in the criminal justice system, restitution for victims of the CIA torture program, accountability for civilian deaths from U.S. drone strikes, and privacy from arbitrary digital surveillance, to the gender pay gap, access to health care, and protection of the rights of migrant agricultural workers. While many delegations prefaced their comments by acknowledging the U.S.’s strong commitment to human rights and commending the U.S.’s engagement with the UPR process, each country noted areas where the U.S. can improve its record on human rights. Country after country urged the United States to abolish the death penalty, establish a National Human Rights Institution in accordance with international principles, and ratify core human rights treaties.
Twenty-five government officials from seven federal agencies and the Attorney General of Illinois were on hand to answer questions and receive the recommendations. In response, the government noted U.S. efforts in areas such as combatting violence against women, eliminating discrimination against LGBT persons, addressing discriminatory policing, releasing the Senate Intelligence Committee report on CIA torture, and supporting the UN Declaration on the Rights of Indigenous Peoples, among others, while acknowledging continuing human rights challenges, including in the administration of justice.
Throughout the review, the U.S. highlighted the role of civil society in holding the government accountable for its human rights commitments. After the morning session, the government hosted a consultation with members of U.S. civil society in Geneva for the review. (The government offered a call-in option for people to listen in from outside of Geneva, and an email address to send questions in advance.)
At the post-review consultation, U.S. advocates asked hard questions and urged reforms which were in many ways similar to the recommendations that emerged during the UPR. Advocates stressed the need for the federal government to eradicate racially biased policing and excessive use of force by law enforcement, to align the U.S.’s counterterrorism practices with human rights, to issue a National Plan of Action on racial justice, and to end family detention of immigrants. Other issues were raised, as well, including the need to end long term solitary confinement, fully implement the Universal Declaration on the Rights of Indigenous Persons, end violence against sex workers, address discrimination and violence against transgender people, and establish a right to appointed counsel in immigration proceedings. Martinez Sutton made an impassioned plea for justice and accountability for the death of his sister, Rekia Boyd, who was killed by a Chicago police officer in 2012.
Of particular note, during the post-review consultation advocates registered strong disappointment with the Administration’s approach during the review to economic, social and culture (ESC) rights. A number of countries raised ESC rights concerns during the review, including access to clean water, education, housing, and maternal health care. Recently, the Administration appeared to take steps towards a more explicit embrace of ESC rights, including in a high profile speech given by former Assistant Secretary of Democracy, Human Rights, and Labor, Michael Posner, in 2011. In contrast, in the U.S.’s 2015 report, submitted in the advance of its second UPR, the Administration made reference to economic, social and cultural “measures.” During the consultation, the Administration explained the change by stating that it indicated no change in the U.S.’s stance on ESC rights, but rather was intended to encompass a broader scope of ESC issues than covered by the U.S.’s existing commitments. Yet, advocates emphasized the importance of naming ESC rights as “rights,” to empower marginalized communities to claim them as such.
Another issue that emerged during the post-review consultation was the need to engage in meaningful dialogue about the human rights review with civil society back in the United States. Disappointed that the post-review consultation only allowed for callers to listen-in, and did not follow the “town hall” format of the first UPR, U.S. advocates urged the U.S. to hold a more interactive state-side session as soon as possible, and to allow for wide participation. In addition, several of us urged the federal government to disseminate the recommendations that emerge from the UPR to state and local officials, and to facilitate appropriate follow up and implementation of human rights at the state and local level.
Is the UPR process perfect? No. Is it useful? Yes. As I’ve noted in a previous post, the process provides an important opportunity for U.S. social justice advocates to build the international record on the full range of human rights concerns within the United States while raising greater public awareness at home about pressing issues. It also offers opportunities to engage in conversation with officials, at every level of government, through a human rights framework. And the UPR offers an opportunity to keep up the pressure and reinforce the recommendations generated by other human rights mechanisms, including the three UN human rights treaty reviews that the United States recently participated in, and by the Inter-American Commission on Human Rights.
Later this week, the United States will receive the outcome report from today’s session, providing a summary of what transpired during today’s review. It will then have a few months to contemplate how to respond before returning to Geneva to formally accept or reject each of the recommendations it received today. Between now and then, advocates can urge the government to accept those recommendations reflecting U.S. civil society’s concerns, and to commit itself to implementing meaningful reforms in response. Perhaps when the third UPR comes around, the U.S. will be able to report more progress on human rights at home.
Sunday, May 10, 2015
The second Universal Periodic Review of the United States will take place in Geneva on May 11, 2015. The U.S. report was made public in February 2015 and is available via the State Department website: http://www.state.gov/j/drl/upr/2015/index.htm
The review, scheduled for the morning (Geneva time), will be webcast live on webtv.un.org.
The United States is represented by a multi-agency delegation, with representatives from HUD, State, Homeland Security, DOJ and others. The Heads of the Delegation are The Honorable Keith Harper, U.S. Ambassador to the Human Rights Council, and Mary McLeod, Acting Legal Adviser
Office of the Legal Adviser, Department of State. The State Government Representative is Lisa Madigan, Attorney General of Illinois. A complete list of the U.S. delegation is available here.
Many representatives of U.S. civil society are in Geneva to participate in the review process. Late in the day on Monday, we will be publishing a report on the proceedings by blog contributor Risa Kaufman of the Columbia Human Rights Institute, live on the scene. Check back for updates!
Friday, May 8, 2015
The state often ignores evidence that could prove innocence. We know this. Nonetheless, each revelation is shocking. Recent revelations that the FBI acknowledged hiding evidence that likely would have led to innocent verdicts were the latest disturbing discoveries . According to a New York Times article, the FBI's forensic scientists confirmed that the testing "was scientifically indefensible in nearly every one of more than 250 cases reviewed."
These recent disclosures stem from suppressed DNA hair results. One defendant was executed on the FBI claim that hair found at the scene of a murder matched that of the defendant. In truth, the hair sample in question belonged to a dog. After this and other cases which exposed flawed FBI forensic testing, the FBI reached an agreement with the Justice Department (motivated by the work of The Innocence Project) to review the forensics in over 2500 cases.
The quality of justice is mediocre. Common goals should converge. If the government is not interested in whether the convicted are actually guilty, surely it is concerned with reducing crime in our communities. Wrongful convictions mean that the perpetrators are left free to commit additional crimes. Ensuring integrity of forensic evidence is one way to meet the needs of citizen protection and avoid wrongful convictions and executions.
Thursday, May 7, 2015
Two recent publications address the domestic impact of human rights law, both focus on the International Covenant on Economic, Social and Cultural Rights (ICESCR) -- a treaty that the U.S. has signed but not ratified. While economic and social rights are often characterized as aspirational in the U.S. domestic context, these authors find that the ICESCR has practical impacts in those countries that ratify it.
First, based on a study of more than one hundred countries over a 25 year period, Professor Ward Cole of the University of Utah concludes membership in the ICESCR is an effective approach to reducing domestic income inequality His article, International Human Rights and Domestic Income Inequality: A Difficult Case of Compliance in World Society, appears at pp. 359-90 of the April 2015 issue of the American Sociological Review.
Here is the article abstract:
Much research finds that human rights treaties fail to improve domestic practices unless governments are held accountable in some fashion. The implication is that noncompliance can be attributed to insincere commitments and willful disobedience. I challenge this claim for a core but overlooked treaty: the International Covenant on Economic, Social, and Cultural Rights (ICESCR). Few analysts have studied the ICESCR because its terms are difficult to implement and suitable measures for judging compliance are hard to find. I analyze its association with income inequality, using data for more than 100 countries (1981 to 2005) and methods that account for the possibility of reverse causality. ICESCR membership reduces inequality in both developed and developing countries, although the relationship is stronger for developed countries—precisely those with the greatest capacity to implement their obligations. Other key determinants of income inequality and treaty compliance—left partisanship, union density, workers’ rights, and democracy—do not systematically condition the effects of ICESCR membership. The ICESCR is therefore quite effective in reducing inequality, an outcome likely explained by renewed global attention to socioeconomic rights during the neoliberal era.
More information on the article is available here.
Second, Professor Diane Desierto of Richardson School of Law, University of Hawaii, also acknowledges this potential for ESC rights in her new book, Public Policy in International Economic Law: The ICESCR in Trade, Finance, and Investment (Oxford University Press, Feb 2015), but she criticizes states for failing to fully translate their ICESCR commitments into practical actions under international economic law. The publisher describes the book as follows:
"States reject inequality when they choose to ratify the International Covenant on Economic, Social and Cultural Rights (ICESCR), but to date the ICESCR has not yet figured prominently in the policy calculus behind States' international economic decisions. This book responds to the modern challenge of operationalizing the ICESCR, particularly in the context of States' decisions within international trade, finance, and investment. Differentiating between public policy mechanisms and institutional functional mandates in the international trade, finance, and investment systems, this book shows legal and policy gateways for States to feasibly translate their fundamental duties to respect, protect, and fulfil economic, social and cultural rights into their trade, finance, and investment commitments, agreements, and contracts.
It approaches the problem of harmonizing social protection objectives under the ICESCR with a State's international economic treaty obligations, from the designing and interpreting international treaty texts, up to the institutional monitoring and empirical analysis of ICESCR compliance. In examining public policy options, the book takes into account around five decades of States' implementation of social protection commitments under the ICESCR; its normative evolution through the UN Committee on Economic, Social and Cultural Rights, and the Committee's expanded fact-finding and adjudicative competences under the Optional Protocol to the ICESCR; as well as the critical, dialectical, and deliberative roles of diverse functional interpretive communities within international trade, finance, and investment law. Ultimately, the book shows how States' ICESCR commitments operate as the normative foundation of their trade, finance, and investment decisions."
Wednesday, May 6, 2015
Detroit water shut-offs are in the news again. On May 5, the city announced that 20,000 - 25,000 delinquent accounts would be receiving shut-off notices by May 11, giving the customers a 10 day window to get assistance or make a payment. At the same time, the Detroit City Council took steps to start consideration of an affordability plan that would take income into account in determining water rates. The Detroit Water Brigade and other local advocacy groups have long urged the development of such a plan. In fact, a water affordability plan for Detroit was developed in 2005, but never implemented.
Activism on this issue continues to gain momentum. Food & Water Watch is sponsoring an on-line petition to the Mayor and City Council supporting an affordability plan. And in a few weeks, on May 29-31, the Michigan Welfare Rights Organization and other local activists will convene an International Gathering of Social Movements on Water and Affordable Housing in Detroit. Among other things, the activist gathering will consider federal water affordability legislation.
First things first, though -- the social movement gathering will provide an important opportunity to keep the pressure on local politicians to move quickly and positively to develop and implement an affordability plan to alleviate the suffering in Detroit.