Human Rights at Home Blog

The Irrationality of Anti-LGBTQ Legislation

by Jeremiah Ho

According to sources at the Human Rights Campaign, there are currently more than 100 anti-LGBTQ bills filed in 29 state legislatures across the country.  But the one bill that has gained the most notoriety in the national spotlight is North Carolina’s bill—HB 2—banning transgender individuals from using the bathroom of the gender with which they identify.  In the shadow of last year’s marriage equality victory, the controversy of the HB 2 has sparked conversation about transgender rights—a group within the LGBTQ umbrella that previously received the least amount of attention and the group that did not benefit from the repeal of Don’t Ask, Don’t Tell.

Given that one of iconic instances of discrimination that prompted the Civil Rights Movement was the segregation of public restrooms between white and other races, it feels as if the return to the restroom as the stage for discrimination symbolizes a regression from progressive politics.  The issue, however, is so much more complex than that.  As with racially-segregated public restrooms, the supporters tout a negative essentialist rhetoric that is firmly grounded in the politics of disrespect.  For instance, during the Civil Rights Movement, a common reason that pro-segregationists used to resist integration of public restrooms between white and other races was the protection of white women from the venereal diseases carried by African-American women.  In comparison, in the contemporary debate, we have supporters of bathroom bills—who also largely denounce expansion of anti-transgender rights—use the protection of young children from child predators as one of the primary reasons for these bathroom bills.  Just like venereal disease, here is now another peril that has been brought into the debate without any evidentiary basis—alas pedophilia!  But even despite the lack of statistics, the possibility of child predators is enough to gather support from family groups to prevent restroom integration at the expense of the restroom rights of a particular group.  Along the way, the ones left out of the stall—i.e. transgender individuals—now have either an inappropriate connotation of pedophilia attached to their image or way of life that facilitates an argument favoring their third-class citizenry.  Beyond the segregation, the pro-bathroom bill rhetoric is a cleverly designed campaign that uses anti-transgender essentialism—in the form bodily functions and biological sex—to discredit the pro-transgender constructivist aspects of gender identity.  All of this rhetoric and debate reveals the tension and hatred that the supporters of bathroom bills hold for transgender people.                        

Although in the context of schools, these bathroom bills have been legally challenged on the basis of Title IX violations, much of this debate makes me think of another legal solution to use against bills such as HB 2—that is, animus and rational basis "with bite" in Romer v. Evans.   The anti-trans rhetoric here reminds me of the disrespect politics that the supporters of Colorado Amendment 2 in the early-to-mid 1990s employed to get the state voters to pass an ordinance that denied non-discriminatory protections for LGBTQ individuals.  That campaign used the AIDS crisis and inaccurate statistics about gay sex to tarnish the image of sexual minorities, leaving them without any dignity in the eyes of other fellow Colorado citizens.  Eventually Amendment 2 was overturned by the Supreme Court in 1996 in Romer because the Court found that Amendment 2 was promulgated by an animus against sexual minorities that rendered the law empty of rational basis.

So if we were able to resolve Colorado’s discriminatory Amendment 2 in 1996, why are we not quicker in 2016 to note the hatred and animus that ought to render HB 2 and similar laws that discriminate against transgender individuals irrational as well?          

How Young is Too Young?

by Tamar Birckhead

 

In my role as a clinical law professor, I am currently representing a client in juvenile court charged with disorderly conduct, defined as a public disturbance caused by fighting or other violent conduct (among other acts), and assault on a state employee.  The first charge is a minor misdemeanor; the second is a serious misdemeanor.  The prosecution emanated from an incident at school – a fight between two male students.  It began with harsh words, which led to threats and quickly escalated into punches thrown.  The assistant principal, in an attempt to break up the fight, inserted herself between the boys, holding one back from the other while she called for backup from the school resource officer (the police officer assigned to the school).  In an attempt to hit the other boy, my client, whom I’ll call William, tried to reach around the teacher, and she was struck in the process.

If William, who is African-American, is adjudicated delinquent of both of these charges, whether after a bench trial or an admission, he is likely facing six months to one year of supervised probation and five days in detention if he violates the imposed conditions.  During William’s probationary term, the court may order him to enter the custody of the department of social services, cooperate with a residential treatment program for up to twelve months, pay restitution up to five hundred dollars, perform up to 100 hours of supervised community service, cooperate with placement in a wilderness program or residential treatment facility, or a host of other conditions.  

William’s parents are also under the court’s jurisdiction and must comply with any conditions imposed, including medical, surgical, psychiatric, or psychological evaluation or treatment of the juvenile or parents, for which the court may order the family to pay the cost.  They must also attend all hearings and can be ordered to attend parental responsibility classes and comply with a variety of other conditions.

As you may imagine, the facts of this case are not particularly unique—except for one: the age of my client.  William was nine-years-old when this incident occurred at his elementary school, while the other boy was ten. 

Many people are surprised by how young some of our clients are – I was, too, when I first started practicing in North Carolina.  I soon learned, however, that we have the lowest minimum age of juvenile court jurisdiction in the United States: six-years-old.  And, yes, my clinical students and I have had cases with clients who were that young. 

While North Carolina has the youngest minimum age of juvenile court jurisdiction, about two thirds of the states have no statutory minimum age—meaning that nothing prevents prosecution of even the youngest children.  Meanwhile, twelve states have set a minimum age of ten; three have set a minimum age of eight; and four have set a minimum age of seven.

The policy justification for the juvenile prosecution of very young children goes back to the early nineteenth century when European immigrants and young people from rural areas were flocking to the northeastern cities of New York, Boston, and Pennsylvania.   Many immigrant children were left orphaned after their parents died on the journey to America or left unsupervised when their parents joined the ranks of factory and other industrial workers. As a result, large numbers of children had to fend for themselves, and juvenile delinquency was labeled a serious social problem.     

By 1820 public concern about growing poverty, increasing crime, and the “wretched state” of young people prompted the establishment of the first houses of refuge for youths in the United States.  Reformers who ran these facilities made few distinctions between children who had committed minor crimes and those who were paupers.  They believed that living in poverty and committing a criminal offense were synonymous, as both conditions were considered in strictly moral terms.  In fact, reformers believed that immorality caused poverty and that the poor posed as much of a threat to society as criminality. 

Houses of refuge were the functional precursor to the juvenile court, which also failed to distinguish between children who had committed crimes and those who were deemed dependent on the state as a result of families who were unwilling or incapable of care and supervision.    Justified by the doctrine of parens patriae, the first juvenile courts unilaterally addressed the seemingly interdependent problems of child neglect, delinquency, and adolescent misbehavior, focusing on children of European immigrants in order to “Americanize” them via training and moral guidance. 

In this way, houses of refuge—and later the juvenile court system—became an effective means not only to provide social welfare but also to maintain social control over the poor as well as ethnic and racial minorities.  During this era, there were no minimum ages of juvenile court jurisdiction, as no child was too young to “benefit” from the citizen-building provided by the American liberal democracy. 

This legacy unfortunately continues today, leaving very young children from low-income families like William caught in the net of a criminogenic system that provides more stigma than refuge.

Editors' Note:  View Prof. Birckhead's work on SSRN

Calling Trump Out on Human Rights

It hardly needs saying that presumptive Republican nominee Donald Trump does not care one whit about human rights, in the US or elsewhere.  This is a man who called for the torture of innocent family members of Isis terrorists, supported "punishment" for women who have an abortion, and wants to rid the US of Muslims --positions that put him far outside what was once the conservative mainstream.  But while it goes without saying, if there's one thing that we should learn from the campaign so far it is that we can't presume that others will recognize the human rights violations apparent in so many of Trump's statements and positions.  It is good to see, then, that human rights leaders are increasingly ready speak up and call Trump out for his outrageous rhetoric and dangerous positions.   In several speeches, Zeid Ra'ad al Hussein, the UN High Commission on Human Rights, has decried the racial and religious divisions deliberately flamed by candidate Trump.  In May, former President Jimmy Carter spoke to the New York Times and condemned Trump for waging a campaign mired in bigotry and human rights violations.  

The rest of us may not have the sorts of platforms that a UN High Commissioner or a former President can command, but we also have an obligation to speak up -- in our blogs and tweets, in op eds, in the talks we give and the programs we put on in our home institutions.  We know by now that shocked silence in the face of candidate Trump's statements and proposals does nothing to illuminate the issues or to hold Trump accountable for his positions. And at this point in the election season, with these outrageous positions voiced by the nominee of one of the major parties, silence is dangerously close to complicity.        

The End of Lethal Injection in the US?

In 2009, several companies that provided drugs used in executions began refusing delivery of those drugs to US prisons.  One by one, primarily European drug companies have refused to market drugs used in executions to penal institutions.  On May 7th, Pfizer announced that it would no longer make drugs used in executions available for that purpose.  Pfizer was the last company manufacturing the drugs that made them available to prisons.  Pfizer also announced that when selling the drugs for other purposes, buyers will be obligated to agree that the drugs will not be resold for purposes of lethal injection.  According to the NY Times, Pfizer was the last remaining open source of the drugs,  leading executioners to revert to other means of obtaining them.

States employing the death penalty refuse to disclose the source of the drugs and in at least one case, an investigation is underway to determine how prison officials obtained drugs to be used for an execution, only to discover they had purchased the wrong drug.  In other cases, states ordering the drugs from India saw the drugs seized by the FDA. 

Pfizer explained that its prohibition on prison sales of the lethal injection drugs was motivated by business and medical factors and not political ones.  The company explained that their drugs are intended to save lives.  The Heritage Foundation, however, accused the company of conceding to political pressure.

No matter what the motivation, US executions have dropped from  98 in 1999 to 28 in 2015.   For more information, the Death Penalty Information Center details efforts to curtail executions as well  as state efforts to obtain lethal injection drugs and other efforts to revive previously defunct methods of execution, including firing squads.  The Center's website contains information on the ACLU's efforts to force states to disclose their source of lethal injection drugs now that the major corporations are refusing sale of their drugs for that purpose.  In addition, the Center is a resource on other concerns surrounding the use of capital punishment. 

Human Rights Cities -- 2016 World Forum and More

The international Human Rights Cities movement will mark at least two landmarks this summer and, depending on how you count, maybe more.  First, the 6th annual World Human Rights Cities Forum will be held in Gwangju, South Korea, on July 21 - 24.  Five hundred city leaders and activists are expected to attend and to share strategies and plans for promoting human rights implementation at the local level.  More information on the Forum is available here.

Second, the first book-length scholarly treatment of Human Rights Cities will be published in June by Cambridge University Press.  The book, titled Global Urban Justice: The Rise of Human Rights Cities, is edited by Barbara Oomen, Martha Davis and Michele Grigolo.  It includes a number of contributions that address US human rights on the municipal level, including chapters by JoAnn Kamuf Ward on US mayoral leadership, a case study of Eugene, Oregon's human rights initiative by Kenneth Neubeck, and a more general overview and analysis of the movement by Cynthia Soohoo.  Of particular note is the interdisciplinary and international nature of the work, which includes perspectives from sociology and anthropology as well as law, and contributors from a mix of countries all addressing the role of local human rights implementation.  A book launch is planned at the Raoul Wallenberg Institute in Lund Sweden, on June 13, from 10:15 - 11:45 a.m., with a panel including Oomen, Davis, and contributing author Klaus Starl of the European Training and Research Centre for Human Rights.  More information is available at http://rwi.lu.se/.  

Human rights cities are also getting increased attention in the US.   Human rights cities were discussed at the annual meeting of the American Society of International Law, with remarks from Tara Melish, Emily Murase and William Bell.  On May 26 and 27, several human rights city organizations are hosting a workshop in Washington, D.C.  to discuss the US movement.  One of the convening organizations, the American Friends Service Committee, prepared a 2015 Report on the State of Human Rights in Washington, DC, identified as a human rights city, available here.  Michele Grigolo, one of the editors of Global Urban Justice, will also speak at this workshop.  And the US is by no means alone in realizing the importance of local human rights -- a similar workshop was held in York in January 2016 with participants from Europe and the UK, to discuss human rights cities linkages there.  

The Constitutional Fight Over Delay

by Michael Meltsner   

 Justice Stephen Breyer may be the only current member of the Supreme Court to have argued that the inevitably long delays death row prisoners suffer before execution is a significant factor leading to the unconstitutionality of the death penalty but his persistence in arguing for this position has provoked passionate rejoinders. Just recently Breyer dissented from the Court’s decision not to review the case of a California man who was sentenced to death 32 years ago.

According to the authoritative Death Penalty Information Service “inmates in the U.S. typically spend over a decade awaiting execution.” Some prisoners have been on death row for well over 20 years and others have been executed after 30 years. No surprise then that many, often confined 23 hours a day in solitary confinement, die in prison, or attempt or successfully commit suicide.

Breyer (and Justice John Paul Stevens before him) argue that delay “subjects death row inmates to decades of especially severe, dehumanizing conditions of confinement,” as well as undermining the supposed function of the death penalty.

In a scathing post, Harvard Law professor Noah Feldman, writing in his regular Bloomberg View column, takes Breyer to task for claiming that “death delayed is worse than death itself.” According to Feldman, taking a line similar to that of the late justice Antonin Scalia, Breyer is really asserting that execution should “be administered quickly... to avoid the convicted person living on many years in prison.” Alas, Feldman has totally misconstrued the argument about long confinement on death row which is not that executions should take place shortly after sentence but that legitimate due process concerns over reliability, procedural fairness and the irrevocability of death have led judges as well as other actors in the criminal justice system to create a legal process which produces disproportionate human suffering, pain so great that it contributes to an unconstitutional result.

The core of Feldman’s indictment of the Breyer position is his claim that “In every case where an inmate has been in death row for many years, it’s by choice...the result of numerous appeals by his lawyers, and numerous delays in hearing those appeals by state and federal courts.”

This is a distorted concept of choice. Feldman believes it is freely present in “In every case” because a defendant can simply “skip the appeals” and ask to die. Many would think that a choice in name but not in reality. And he attributes postponement of decision by the courts, not in any way to the judges who delay and their justifiable concerns about reliability or doubts about capital punishment, but only to the prisoner’s hunger for days more of life.

What Feldman fundamentally misses is that the Supreme Court has created a system that does not work because it has not and probably cannot resolve a clash of inconsistent constitutional values. The Court has approved laws in those states (mostly in the South) that actively execute but it has also decided that in the service of proportionality the Constitution requires steps supposed to ensure individualized but not arbitrary or discriminatory selection of the condemned. The result of this required judicial scrutiny of death cases is that those statistically few individuals who are actually executed only die after the deterrent and retributive aims of the criminal law are no longer served by their death. After decades of delay, even a victim’s family members are hardly likely to feel great satisfaction that justice has been done. The point is one can just as easily argue that a dysfunctional death penalty should be totally eliminated as what Feldman advocates, “The remedy for death delayed, after all, can only be death itself.”

One last proposition Feldman asserts seems to come from a place remote from direct experience. He rejects Justice Breyer’s concern that living in prison under the threat of execution for years and years is a kind of torture. “ Many of us will die in the next 32 years,” he writes, “And none of us knows as exactly on what day that will occur.”

To be sure death is never pretty and we are never sure of its arrival. Still to equate the prospect of how a cell-confined man expects to die—years of last minute reprieves granted or denied, isolation from others, knowing that prison guards will come with a hood and strap him on a gurney, drugs of unknown capacity forced into your body—with the death most of us expect or hope for—surrounded by loved ones, supported by medical personnel—is sheer illusion.

The real choice now with capital punishment is not the inmate’s but ours. It is whether we have had enough of what the late Justice Harry Blackmun called “tinkering” with a system of costly, brutal, unnecessary and, yes, long delayed mostly symbolic executions. Breyer’s lone dissent notwithstanding, this is a constitutional question that the Supreme Court will have to confront. Perhaps soon after this year’s election, but if not, then shortly thereafter.

Editors' Note: Prof. Meltsner is Matthews Distinguished Professor of Law at Northeastern Law School and was one of the lawyers in Furman v Georgia, the 1972 Supreme Court ruling against the death penalty.  This piece originally appeared in Huffington Post.

Country-specific scrutiny at the United Nations Human Rights Council

On May 17, the Tom Lantos Human Rights Commission of the US Congress conducted a hearing on the UN Human Rights Council.  A video and transcripts of the hearing are available here.  In conjunction with the hearing,  Naomi McMillen and Ted Piccone of the Brookings Institution recently released a new, detailed and rigorous analysis of the UN Human Rights Council's country-specific reviews.   The authors conclude that:

"Since the United Nations Human Rights Council was created in 2006, it has made significant strides toward improving the enjoyment and protection of human rights for all individuals around the world through a complex strategy that involves a combination of softer and tougher approaches, from building up the capacities of states through technical assistance to criticizing them frankly on the international stage. Despite its accomplishments, critics claim that the Council has failed to live up to its original mandate and has devoted far too much attention to vague thematic issues instead of focusing its efforts on addressing serious human rights violations in country-specific contexts. While the Human Rights Council has historically devoted more of its time and resources to thematic concerns, in the past four years it has shown an inclination to confront efforts to curtail country-specific human rights issues with greater country-specific scrutiny. If the current trend persists, the Council will be well placed to have lived up to its mandate to protect and promote human rights by addressing human rights violations wherever they occur."

Severe Financial Crisis at the IACHR Threatens Human Rights Infrastructure

The Inter-American Commission on Human Rights reported on May 23 that a severe financial crisis has forced it to suspend hearings and that it anticipates laying off 40 percent of its staff on July 31, 2016.  Here is a link to this alarming press release, with background information on how this situation has developed over the years.  A report in the Jamaican Observer describes just one of the pending human rights claims that will be affected by this suspension.

What Has the European Convention Ever Done for Us?

The UK is in the midst of the "Brexit" debate over continued participation in the European Union.  Some British politicians, however, are calling on the UK to withdraw from the European Convention on Human Rights, instead of, or in addition to, an EU exit.  

After all, asks Patrick Stewart in this clip, what has the ECHR ever done for Britain?

(Warning:  Contains a tad of strong language, and may induce nostalgia for Monty Python).

 

Related articles

UK must leave European convention on human rights, says Theresa May | Politics | The Guardian

Most of the world recognizes it’s wrong to criminalize women for having an abortion, what about Indiana?

by Cynthia Soohoo  

On Monday, the Indiana Court of Appeals will hear oral argument to determine if Purvi Patel was wrongly convicted and sentenced to 20 years in prison for seeking to terminate her own pregnancy.  Through a questionable reading of Indiana law, the prosecution was able to convict Patel of two inconsistent crimes: feticide and child neglect.  If affirmed, Indiana’s expansion of these crimes will pose a serious threat to women’s constitutional right to choose to terminate a pregnancy and will place all women who fail to deliver a healthy baby in danger of criminal prosecution.

Patel was convicted of feticide for purchasing drugs over the internet to induce an abortion. Yet, Indiana’s feticide law was never intended to apply to abortions.  The law was passed following the shooting of a pregnant woman that caused a stillbirth.  Recognizing feticide as a crime was intended to protect women by punishing criminals who commit violent acts against them that result in the loss of a pregnancy.  However, prosecutors in Patel’s case were able to convince the trial judge that the feticide provision also applied to abortions that failed to comply with Indiana’s abortion law. Among other requirements, Indiana abortion law required that abortions be performed by a physician and prohibited the administration of abortion inducing drugs later than 9 weeks.

Not only is Patel’s conviction inconsistent with a fair reading of the feticide statute, it opens the door to the prosecution of other women who chose to have abortions if they fail to follow the exact requirements of Indiana’s abortion laws.  This creates a real danger of unfair prosecutions because Indiana, like many other states, has imposed detailed requirements for legal abortion.  Some are legitimate health regulations necessary to protect women’s health, but others are onerous and arcane requirements designed to discourage women from having abortions or make it more difficult to obtain them.  Ironically, unnecessary and burdensome requirements probably increase the likelihood that women will decide to terminate a pregnancy on their own as Patel is accused of doing. Indeed many women in the U.S. feel that clinical abortion care is out of their reach because of cost, increased restrictions, limited access and increased travel distance to clinics. Others may opt for self-induction because of mistrust of, or difficulties navigating, the formal healthcare system.

Criminal prosecution of women for terminating their own pregnancies is relatively rare outside of the U.S.  As discussed in an amicus brief filed by CUNY Law School’s Human Rights and Gender Justice Clinic, international human rights experts on health and women’s rights have recognized that imposing criminal penalties on women who have abortions violates their human rights.  It also places women’s health at risk because women who experience serious medical complications after an abortion or miscarriage may be too afraid to seek medical help.  Although this may sound far-fetched, Patel was arrested at the hospital after she sought treatment for hemorrhaging that resulted in the loss of 20% of her blood.

Even in countries with laws that criminalize abortions, it is very rare for women to be prosecuted for ending pregnancies or obstetric emergencies. The reluctance to prosecute women results from recognition that when pregnant women are criminally prosecuted under homicide, feticide, manslaughter or criminal abortion laws, there is a high risk that the laws will be unfairly and selectively enforced.  Many pregnancies naturally end in fetal demise and in many places in the world and in minority communities in the U.S. infant mortality rates are unacceptably high.  When women are prosecuted for abortion, feticide and homicide, all women who do not deliver healthy babies are turned into potential criminal suspects.

El Salvador criminalizes abortion in all circumstances, even if a woman’s health or life is endangered by the pregnancy, if she is the victim of rape or incest or if she cannot afford or is unable to care for a child.  And, it is one of a small number of countries that actually prosecutes women.  As a result, many women are forced to get clandestine and possibly unsafe abortions.  The law also creates a real danger of prosecution for women who don’t deliver healthy babies.  Many of the women who end up being prosecuted are poor women who have sought medical help in public clinics following miscarriages.  Several highly publicized cases involving the imprisonment of poor women for homicide following miscarriages, stillbirths and obstetric emergencies have led to widespread international criticism from human rights organizations and U.N. human rights experts.

As states across the country continue to pass laws that make it more difficult for women to access safe and legal abortion, let’s hope that the Indiana Court of Appeals recognizes that hospital waiting rooms should not be turned into crime scenes and that women should not be criminalized for terminating their own pregnancies or for failing to deliver a healthy baby.

Does the Right to Civil Counsel Include Effective Counsel?

The answer is:  not yet.  

SCOTUS is entertaining a cert petition that requests that the court address whether, when civil counsel is appointed, the party is entitled to effective assistance of counsel.   While your first response may be "Of course!" the answer may not be obvious in some jurisdictions, as reported on SCOTUSBlog.  While the Tennessee case in question is specific to termination of parental rights, if the US Supreme Court accepts the case for hearing, the court's decision could have a wide ranging impact on the quality demanded of court appointed lawyers in a range of civil cases.  As noted in yesterday's post, cases that address parental rights are those (at this juncture) that most easily are identified as triggering the right to counsel.  

The case is Vanessa G. v. Tennessee Department of Children's Services.  The statute in question is Tenn. Code Ann. Section 37-1-126(a)(2)(B)(ii)  which states in part "a parent is entitled to representation by legal counsel at all stages of any proceeding under this part in proceedings involving termination of parental rights[.]"  The Tennessee Supreme Court affirmed that parents are entitled to appointment of counsel in termination cases, but noted that nothing in SCOTUS' 1981 Lassister decision mandates that counsel be effective.  In so ruling the court also rejected the notion that the criminal standard of "ineffective assistance of counsel" must or need be imported to civil matters.  

With the concept of a civil right to counsel in matters involving fundamental human rights becoming more recognized, the Vanessa G. case, if accepted, could act as a guide to states as they struggle with redefining which civil cases demand the appointment of counsel and the level of skill litigants may expect when counsel is appointed.  We know what the answer would be in Massachusetts, which has already held that counsel must be competent.  But this may be the time for clarity on the national level.

When Access to Civil Counsel Becomes a Fundamental Right

As reported by John Pollock of the National Coalition for a Civil Right to Counsel, the Massachusetts Supreme Judicial Court in L.B. v. Chief Justice of the Probate and Family Court  recently ruled that parents have a due process right to counsel when seeking modification or termination of a guardianship of their children, provided that the parent "make a modest yet meaningful preliminary showing that he or she has a colorable case” for removal or modification.  This case was a followup to Guardianship of V.V., which recognized the constitutional right to counsel for establishment of such guardianships.  The NCCRC provided assistance to the petitioner and amici in both V.V. and L.B.

 

The decision expands the rights of parents to legal representation beyond cases of termination of parental rights or the appointment of a non-parent guardian.  The decision establishes the right to counsel when the parent seeks to change an existing guardianship, revisiting the possibibilty of the restoration of full parental rights or at least a modification of an exisitng guardianship.  The case sets out parameters for demonstrating the need for counsel and suggests specific guidelines for the lower court to consider to make the process of demonstrating need for counsel easier than what the Probate and Family Court had suggested.

 

The case advances the rights of litigants to appointed counsel in areas that have significant impact on their human rights and those of their families.  

 

For more information on the case, read here. 

 

 

 

 

 

MA case.

Russell's article.

Is This Wisdom or Justice Delayed? Zubik v Burwell

by Margaret Drew

On Monday, the Supreme Court decided Zubik v. Burwell by not deciding.  The court remanded the consolidated cases to their various intermediary courts.  The Court suggested that the lower courts, all but one of which upheld the government mandate providing access to birth control even for those employed by religious organizations, might find that the parties are able to reach solutions that protect women's access to birth control in ways that do not infringe on religious rights.  Thoughtful analyses have been written on this per curium decision, such as those noted on SCOTUSBlog. 

My reflection focuses on process, rather than substance.  While the Court suggests that in any settlement, women's right to birth control access must be protected, the court does not provide specific guidance on how the parties will reach settlement.  The court has taken an approach more commonly found in trial courts.  Encouraging settlement or engagement in ADR processes is common, if not required, in trial courts.  Some appellate courts also recommend or demand settlement discussions prior to scheduling cases for argument. 

In a time when angry philosophical divides inhibit discussion of finding common ground, the Court has effectively designed a plan for the parties to accommodate each other's concerns while preserving constitutional protections.  The Court did so by first requiring the parties to submit written plans on what settlement might look like.  Presumably the exercise informed the court on whether the parties could approach solution. This week's decision remands the cases with the knowledge that settlement is possible because the parties have already designed accommodating plans through their Court submissions. 

More importantly, the court has shifted focus from divisiveness to compromise.  Historically, this is the art of politics -- an art that has been rejected of late.  Beyond finding resolution of the case in controversy, the Court is providing guidance to the public as well as to other government branches on how to find meaningful resolution.  The Zubik controversy is an emotional one.  The stakes are high for women as well as for religious employers.  If common solutions can be found in this case, there is no reason why compromise should be rejected as a means of resolution in most political disputes.   Even if the parties cannot accommodate the separate interests, the attempt is significant. The Justices may be best suited as leaders and teachers in demonstrating how reasoned collaboration protects interests while promoting cooperation.   Indeed, the Court employed this process in reaching its per curium decision, modeling the art of reasoned cooperation.   

The Passing of US Human Rights Visionary, Michael Ratner

We were saddened to learn of Michael Ratner's death on May 11, at age 72.  In addition to his many other contributions to individual liberties, few lawyers have done as much to bring human rights home to the US.  Ratner's bold litigation on behalf of Guantanamo detainees following September 11 -- and the rights that he secured for his clients -- is one of his most visible legacies.  But in the 45 years of Ratner's association with the Center for Constitutional Rights, he also led the growth of one of the most effective human rights advocacy centers in the world, and mentored two generations of advocates who understand that human rights can be made real here and abroad only through continued struggle.  As the Center for Constitutional Rights observed, even while we mourn our profound loss, we can best pay tribute to Michael Ratner's life by continuing with the same vigor that he brought to his life's work. 

A Most Useful New Human Rights Resource

By Lauren E. Bartlett

Last month the Human Rights Brief, a student-run publication of the Center for Human Rights & Humanitarian Law at American University Washington College of Law, launched a new, very user-friendly website at hrbrief.org.   The Brief is a fantastic resource on human rights cases and news from around the world and I hope you check it out.   The new website is searchable by region and/or human right (children’s rights, women’s rights, environmental rights etc.), and it is updated almost constantly by the 50+ students that work for the Brief.  The student writers also cover each of the Inter-American Commission on Human Rights hearings in March and October each year and write up descriptions of the hearings (in both English and Spanish), and provide photos and live streaming of the hearings as well.   As both a former staff writer (many moons ago) and former supervisor of the students who make this resource as dynamic and useful as it is, I am very proud to share the new website with you and I encourage you to share this human rights research tool with your students.

TREATY BODIES LOOK AT U.S. PROGRESS ON TORTURE AND RACIAL DISCRIMINATION

by Margaret Drew

This post follows up both Risa Kaufman's earlier post on UN Special Procedures and the U.S. visit and Martha Davis' post on two writings that take a critical look at the use of Special Procedures.    Earlier this week, I checked in with Rebecca Landy of the  US Human Rights Network (USHRN).  Rebecca is the organization's Human Rights Outreach and Advocacy Manager. The following reports our conversation: 

Rebecca, would you tell us a bit about the UN process of reviewing US compliance and progress with the various UN conventions?

While most folks in the United States are focused on our presidential election process – there is another important process for our democracy that will happen on a similar cycle – the reviews of the US’ human rights records on the three core UN human rights treaties our government has ratified.

The most recent rounds of those periodic reviews under the UN International Covenant on Civil and Political Rights (ICCPR), Convention on the Elimination of All Forms of Racial Discrimination (CERD), and Convention Against Torture and Other Cruel Inhuman Degrading Treatment or Punishment (CAT) took place in 2014-2015 with each treaty body Committee releasing a set of Concluding Observations (or Recommendations) for the U.S. government.

But in addition to those periodic reviews, there are also one year follow-up reviews to the Concluding Observations that take place for each of these treaty bodies. Two of those for the U.S. happen to be occurring this week at the UN in Geneva. The UN Office of the High Commissioner for Human Rights website explains that the purpose of these follow-up reviews is “To monitor more closely the implementation of some of their recommendations that they consider urgent, priority or protective, and implementable within one or two years.”

When will the reviews happen and what is their likely scope?

The consideration of the U.S. CAT follow-up report took place on Monday and the CERD follow-up is happening this Friday. Unfortunately neither of these reviews was live webcast or in public sessions, so we will have to wait for the official reports to be released to learn more. That said, we do have a general sense of what those reports will cover based on the designated issues for follow-up. For CAT there are five follow-up issues and for CERD there are three issues for follow-up.

What are the specific issues?

For CAT, the issues are 1. Inquiries into allegations of torture overseas; 2. Guantanamo Bay detention facilities; 3. Interrogation techniques; 4. Excessive use of force and police brutality; and 5. Passage of the ordinance entitled Reparations for the Chicago Police Torture Survivors.

For CERD, the issues are 1. (a) to investigate and prosecute excessive use of force and (b) prevent the excessive use of force;  2. Immigrants; 3.  Guantanamo Bay- specifically for the US to provide updated information for closing within one year.

^{Is there any significance in the identification of these particular issues?}

Of note is that there is overlap in the issues these two treaty bodies considered “urgent, priority or protective, and implementable.” That designation means that we can exert extra pressure on the U.S. government to hold them accountable to these recommendations. Both include follow-up recommendations on excessive use of force and Guantanamo Bay (an issue also in the ICCPR follow-up last summer). While we wait to learn whether the UN experts determine if the U.S. has made progress on these issues - you can read the CAT civil society follow-up shadow reports and government report here and the CERD civil society follow-up shadow reports and government report here.

Do you have any expectations for the substance of the reports?

According to the Guardian, the total number of people killed by U.S. police officers in 2015 shows that the rate of death for young black men was five times higher than white men of the same age and the situation for immigrant communities being targeted by police is no better. Also,President Obama has yet to keep his promise of closing Guantánamo, including ending indefinite detention without trial.  Given that,  the follow-up reports by both Committees will not be  encouraging.  If so, we can take these reports to help push the government to action and advance a people-centered human rights movement at home. And we can be sure that any progress that is recognized in these reports happened because civil society, including grassroots communities, kept organizing!

What significance does the election have on this process and the substantive issues reviewed?

With the Obama Administration soon coming to an end, U.S. advocates hope the human rights legacy for this administration includes progress on these issue areas as well as the establishment of a long-term infrastructure and institutionalization to improve and ensure domestic implementation of international human rights treaties and recommendations.

Editors' notes: You may join USHRN’s CAT and CERD Listervs to keep posted and receive the reports once they become available.  Also, USHRN organized many of the shadow reports submitted as part of the reviews. Though not covering the substance of the reports, the press release from the UN CAT session noted the impressive number of U.S. civil society shadow reports “the Committee had received 22 alternative reports for follow-up, 12 of which related to the follow-up of the United States” – showing a level of engagement by U.S. civil society that was coordinated and powerful.

 

 

 

 

 

 

 

 

 

 

 

 

New Scholarship on Special Procedures

Earlier this week, Risa Kaufman blogged about upcoming UN Special Procedures visits to the United States.  For a critical look at these UN mechanisms, check out two new articles.

First, in the February 2016 issue of Human Rights Quarterly, Rosa Freedman and Jacob Mchangama raise questions about the growing number of Special Procedures in this article, "Expanding or Diluting Human Rights?: The Proliferation of United Nations Special Procedures Mandates."  Here's the abstract:

 

ABSTRACT:

The United Nations Special Procedures system was described by former UN Secretary General Kofi Annan as “the crown jewel” of the UN Human Rights Machinery. Yet, in recent years, the system has expanded rapidly, driven by states creating new mandates frequently on topics not traditionally viewed as human rights. This article explores the connection between forms of governance and the states voting for and promoting these newer mandates. We explore states’ potential motivations for expanding the system and the impact on international human rights law. This article forms an important part of discussions about Special Procedures and rights proliferation.

Second, Rosa Freedman and Francois Crepeau have posted a forthcoming book chapter on SSRN, titled "Supporting or Resisting? The Relationship Between Global North States and Special Procedures."    Note that the article includes a case study of the US response to Special Procedures in the area of poverty.  The abstract is here:

Abstract:     

Scrutiny of the relationship between Special Procedures and States typically focuses on mandate holders’ independence and expertise, as well as the impact of their work ‘on the ground’. Global South countries have been criticised for ignoring visit requests, resisting recommendations contained within reports, and seeking to undermine Special Procedures by introducing new, vague mandates on subjects not traditionally viewed as falling within the human rights matrix. Little attention, however, has been paid to the relationship between Global North States and Special Procedures. This chapter will interrogate the relationship between those countries and mandate holders, individually, and the system more broadly. The research will demonstrate that while Global North States typically have supported Special Procedures mandates – through sponsoring, promoting or voting for them as well as through financial contributions – they tend only to engage fully with mandates where the focus is on civil and political rights or on certain categories of vulnerable groups. Using four case studies – the UK and adequate housing, Canada and food, the EU and migrants, the US and poverty – we shall explore the ways in which Global North States often resist and undermine particular mandate holders’ activities. Analysis will focus on the reasons for that resistance, which challenge the principle of universality of human rights. In particular, we shall highlight the ideological divisions that remain, despite Global North States paying lip service to the indivisibility of human rights. As well, we shall document the increasingly frequent political attitude of many Global North States who insist that, considering their human rights record, they ought not to be visited and criticised by Special Procedures mandate holders, who should rather concentrate their energy on States with much worse human rights records.

 

 

You Say Traditional - I Say Oppressive

Millennial men report  a much higher rate of  believing that both parents should share housekeeping and child care equally.  That, of course, is until they have children.  

 

There are multiple studies revealing that a vast majority of millennial men  believe that equality in domestic tasks should be the norm.  But those same studies reveal that the reality of millennial lives, particularly those who are parents, do not engage in equal child care or housekeeping.  Those who study this phenomenon say that millennial men revert to "traditional" roles once they become fathers.  Perhaps millennial mothers might view this as a reversion to oppression, not tradition.

Fathers who take time to care for, and bond with, their new children are more likely to understand their  shared parenting responsibilities in a way that other fathers can not.   Researchers conclude that a major barrier to active paternal parenting is the lack of sufficient leave policies with most businesses. 

The most serious barrier to co-parenting, however, is not the lack of workplace policies.  Even in companies that permit parental leave for both parents, fathers in heterosexual relationships more often refuse to take advantage of the leave.  Why? Because their managers are not taking parenting leave.  In order to engage millennial fathers in child care, they must be relieved of their fear of being adversely judged by other men in the workplace.   This can most effectively happen when male senior employees take advantage of parental leave policies or encourage other men to do so.  

Males in our culture are burdened with constant judging by other males on whether or not they are "real men".   A shift to a culture that permits males to be themselves is not difficult to attain.  Older, accomplished men can create change quickly simply by encouraging millennial men to make room for family.  

State Department Announces Upcoming Visits to U.S. by UN Special Procedures

Risa E. Kaufman, Executive Director, Columbia Law School Human Rights Institute

This is turning out to be quite a year for U.S. engagement with UN human rights experts. Last month, at a meeting with U.S. human rights advocates, the State Department announced that three UN special procedures will make official visits to the United States between now and the end of the calendar year. Maina Kiai, the Special Rapporteur on Freedom of Association and Assembly, plans to visit the United States from July 11-25, 2016. The UN Working Group on arbitrary detentions and the UN Special Rapporteur on trafficking in persons will each visit the U.S.  The trafficking expert's visit is set for December 5-16, 2016, while the Working Group dates are TBD.  Special procedures (which include Special Rapporteurs and Working Groups) are independent human rights experts appointed by the UN Human Rights Council to monitor human rights situations in specific countries or related to a thematic issue throughout the world.

The newly announced visits come on the heels of recent visits to the United States by the UN Working Group on discrimination against women (November 30-December 11, 2015) and the UN Working Group on people of African Descent (January 19-29, 2016).  Each of those visits concluded with a strong press statement summarizing the group’s findings during the course of the visit. The Working Groups will present their formal reports and recommendations later this year.

These UN human rights experts are among the 41 special procedure thematic mandates covering a diverse range of issues, including torture, mercenaries, and the rights of human rights defenders, as well as education, migrants, and food. Special procedures base their evaluations on standards drawn from the Universal Declaration of Human Rights and other human rights norms. They are not limited in their review by whether a country has ratified a particular treaty, a fact that is especially relevant with respect to the United States.

 

The official country visit is a key working method of the special procedures. The experts may make such visits only upon receiving a formal invitation from the country’s government. One hundred and fifteen UN member countries, not including the United States, have issued a standing invitation to the special procedures. For several years, U.S. human rights advocates have urged the United States to invite the Special Rapporteur on torture, Juan Mendez, to examine solitary confinement practices in U.S. prisons, and to meet with people imprisoned in Guantanamo Bay. The U.S. has not yet extended an invitation allowing the requested access.

 

But special procedures aren’t limited to making official country visits. They also can receive and act on allegations of human rights recommendations from impacted individuals and communities, as well as conduct thematic studies and develop reports on crosscutting and systemic human rights concerns. And they can work more informally, including by conducting unofficial visits, participating in hearings at the Inter-American Commission on Human Rights, and issuing press statements.  Just last week, three UN special procedures -- the Special Rapporteurs on housing, extreme poverty, and water and sanitation -- issued a joint press release on the human rights impacts of the contaminated water supply in Flint, Michigan, in advance of President Obama’s visit to Flint.

How can U.S. advocates make the most of the upcoming visits and other opportunities for engagement with these UN human rights experts?  In 2015, the Columbia Law School Human Rights Institutedeveloped a guide for effective advocacy with the UN special procedures, geared towards U.S. advocates.  And, next month, the Institute is hosting a full day symposium (and free CLE) on the topic. (Registersoon, as space in limited.)

The US Human Rights Network (USHRN) will share information on the recently announced visits as such information becomes available. Join the USHRN’s International Mechanisms listserv to stay posted. And, if your organization is interested coordinating aspects of the visit, contact USHRN’s coordinating center.

 

 

ICE: Human Rights Violators and War Crimes Center

Within Immigration Customs Enforcement  is a unit that investigates war criminal and other human rights abusers from entering or remaining in the United States. 

According to its website, the Human Rights Violators and War Crimes Center has four missions:

1. To prevent the admission of foreign war crimes suspects, persecutors and human rights abusers into the United States.
2. To identify and prosecute individuals who have been involved and/or responsible for the commission of human rights abuses across the globe.
3. To remove, whenever possible, those offenders who are located in the United States.
4. To oversee the development of programs in response to President Obama’s Presidential Study Directive-10, the prevention of mass atrocities.

 

Last Monday, ICE deported Halil Dacaj who is suspected of organizing war crimes against Serbian collaborators by beating them during interrogations and by turning those detained over to the Kosovo Liberation Army for further torture.  In 1999, Dacaj entered the US on a fraudulent passport and visa.  He was ordered removed in 2003 by an immigration judge but he was not arrested until last August.  Last week  Dacaj was deported and surrendered to authorities in Kosovo.