serve as a legal adviser to the North Carolina Citizens Commission of Inquiry on Torture.
Thursday, May 31, 2018
Prof. Justine Dunlap has been following the Larry Nassar case. She reports on the settlement between MSU and Nassar's victims.
Michigan State University recently entered into a $500 million settlement with Larry Nassar’s victim/survivors. Of that amount, $425 million goes to the plaintiffs and $75 million is reserved for future claimants. The $425 million will be placed in a fund from which costs and lawyers’ fees will be extracted. Then a determination will be made as to how much each of the 332 survivors will receive; the range of payments is said to be between $250,000 and $2.5 million.
The settlement sum has drawn much attention. Naturally, it has been contrasted with the $100+ million paid out by Penn State University for the victims of Jerry Sandusky’s crimes. In that case, however, there were only a small fraction of the number of victims—approximately 10% of number that are present in the Nassar case.
Further, the anticipated settlement was central to Moody’s downgrade of MSU’s long-term bond rating in early May. Moody’s rationale was that the agreement—the mediation of which was then ongoing—could result in significant “financial ramification” to the university. Moody’s noted that the increased financial risk from Nassar-related pending lawsuits would involve “ongoing legal costs and university investment into enhanced risk management and governance issues increasing costs.”
MSU’s legal costs have not been cheap. More than a year ago, the university paid Skadden Arps attorney Patrick Fitzgerald $990 per hour for his investigation of how the university handled the matter. In the present settlement mediation, MSU was represented by Robert Young, Jr., a former Michigan Supreme Court justice, for the hourly rate $640. A veritable bargain by comparison.
How MSU will finance the settlement remains unclear. MSU interim president John Engler indicted in a statement released the day after the settlement that the university’s insurers were involved in the process and he anticipated that they would honor their contractual obligations. But even if they do, that amount won’t cover the costs. And what about state money? The $500 million price tag is almost double what the school receives from the state annually (that sum is $281). Engler, a former Michigan governor, said that he would not seek additional funds from the state to satisfy the settlement. Legislators have also made clear that they would not support such a request.
The settlement is about more than the money that the survivors (and lawyers) will receive. It is, one hopes, a further step in resolution, coming less than four months after Nassar was sentenced to 40-125 years in prison. A resolution to a case that was 20 years in the making, as Nassar’s crimes were first reported in the late 1990s. It remains to be seen whether it is also a real step in either institutional or legal reform.
On those counts, whether real change is happening at the university remains a matter of opinion. The university touts, as surely it must, all that it has done and is continuing to do. Much of the information on the President’s page of the school’s website has to do with its post-Nassar initiatives. On the other hand, other groups, such as Reclaim MSU, assert the University’s recent steps are a continuation of the problem that failed to stop Nassar 20 years ago.
As to legislative reform, the state legislature is considering legal changes, including alterations in the applicable statutes of limitations and the stripping of immunity from state actors who knew but did not act. Of course, time will tell what legislative changes are wrought. More significantly, time will tell whether any legislative changes made were ones that actually matter.
Wednesday, May 30, 2018
Prof. Martha Davis sends along this post from Bonnie Smith, Northeastern Law School LLM '18.
The United States (U.S.) prides itself as a developed nation and world economic leader. If this is accurate and “Americans Are Winning ” as voiced by Donald J. Trump, then why are millions living without access to water or in jeopardy of a water shut-off in cities across America? The reality is an estimated 1.8 million people lack access to water in the U.S. Another almost 14 million households already struggle to afford water … and an additional 27.18 million could soon face the threat of or actual water utility shutoff. By 2022, it is estimated that more than one-third of all U.S. households - 35.6 percent - will be unable to afford running water. Unaffordable water plagues urban cities and rural communities. While the great majority of families facing this crisis are people of color, predominantly white communities are facing this crisis as well. The only common denominator between them is that water is unaffordable and deprivation of water consistently and aggressively impacts low income households where many are living, or existing, in conditions which are at-par-with or below the conditions facing individuals in developing nations. People in the U.S. are being deprived of their human right to water.
The current federal administration is complicit in this human rights deprivation as they are not working with U.S. state and local governments to ensure non-discriminatory practices toward low-income public water utility customers. This administration appears to do nothing at all to continue any progress made during the Obama administration, instead seeking to dismantle the federal government's increased role in water protections by ([initiating proposed cuts in] the U.S. Environmental Protection Agency's (EPA) budget and ignoring the needs of communities plagued with water affordability problems.
The water affordability problem has existed in the U.S. for decades but today the nation’s crumbling infrastructure, coupled with ill-considered policy decisions, are the root cause of the U.S. water crisis. These factors have stunted the ability of U.S. cities to realize solutions for water access concerns. The U.S., by ignoring and allowing the water affordability challenge to persist within its borders, has essentially fostered the development of underdevelopment. Only California and Michigan have declared access to water to be a human right. In all other states, the only ray of hope has come from city governments, non-profit advocacy groups and community members, themselves, who have created awareness and given this crisis an identity. These city governments must align with state governments to take federal government agencies, like the EPA, to task and demand immediate action by way of dedicated federal funding to provide for immediate infrastructure updates and funding to underwrite water affordability programs. Without collective collaboration, there is no doubt the current water affordability crisis will continue to grow and work its way into more U.S. cities.
The U.S. federal government must play a critical role in the human right to water. First, the federal government must consistently and uniformly recognize the right to water and water access as a human right. Next, the federal government must ensure there is safe clean water and also access to running water. It cannot be one or the other. These principles are linked and it would lead to catastrophe if either were ignored. The federal government must act like a leader and provide legislation that will support the right to water for all, without discrimination. The federal government must also collaborate with state and local government and listen to their input to understand exactly how the federal government can support them. In turn, state and local governments must allow the local community to speak about their experiences and economic inabilities to prevent the introduction of future water utility rate adjustments that customers cannot adhere to and instead, allow for prudent affordability plans. A resource as vital as water is an essential for life and no community, regardless of their income or racial make-up, should ever be denied their right to water.
Tuesday, May 29, 2018
Freedom of speech is the disguise behind which racism, misogyny and other forms of hate flourish. Without regard for professional and educational standards, businesses and universities refuse to intervene when speech is used to oppress. What may be permitted to say in public discourse has its limitations in workplace and educational institutions. But leadership in both arenas often refuse to confront hate speech and are supported in the workplace by employment cases that historically have tolerated high levels of hate before declaring an environment a hostile one. Flawed law does not justify racism and other hate in the workplace.
Now the NFL is flipping freedom of speech to block peaceful protest. Players who wish to engage in silent protest during the national anthem must do so off the field or risk being fined. While technically it is the teams that will be fined, owners are permitted to pass the penalties through to protesting players.
Freedom of speech gives every appearance of shapeshifting to accommodate the bullies. There is little in the way of institutional leadership protecting vulnerable populations locally or nationally. Those players who are forced to endure shocking levels of racism before a hostile work environment is declared, cannot themselves make peaceful, silent declarations against that racism without risking penalty. This hypocrisy goes beyond Jim Crow and emits the scent of slavery.
It would be self-defeating economically, but powerful demonstratively, if every black football player stayed in the locker rooms and refused to emerge until the rule is overturned. But that would once again place the burden of response on the victimized. It is the white players and fans who need to take a stand against racism and for freedom of speech.
Permitting through silence the manipulation of freedom of speech to accommodate the haters places our democracy in greater jeopardy and our silence makes us complicit.
Monday, May 28, 2018
Between October and December 2017, the U.S. Office of Refugee Resettlement (ORR) was assigned to check in on the more than 7000 children supposedly placed with a sponsor or guardian. The result? Almost 20% of the children who arrived unaccompanied at the border -- are missing.
One might think that the government would be concerned. But no. According to Steve Wagner of the US Department of Health and Human Services, the government isn't responsible for these children once they're released from government care and placed with private sponsors, even though the placement was made by the U.S. government.
A state government similarly washed its hands of responsibility for a vulnerable child in the 1989 Supreme Court case of Deshaney v. Winnebago County. There, the state of Wisconsin was well aware of dangers that Joshua Deshaney faced when he was placed in the custody of his violent and abusive father. Joshua was beaten to the point of brain damage, falling into a coma from which he never emerged. Joshua and his biological mother sued, but the majority of the U.S. Supreme Court concluded that the state bore no responsibility, despite that fact that the state's order had resulted in the placement and the state had failed to act when social workers noted dangerous conditions in the home and indications of the father's abuse.
In one of the more famous dissents in the annals of 20th century Supreme Court jurisprudence, Justice Harry Blackmun lamented the boy's fate. "Poor Joshua," he exclaimed, and argued that legal rigor must include some room for compassion.
In asserting that the U.S. government bears no responsibility for missing immigrant children, the government appears to be relying on the precedent of the Deshaney case, which has since been reinforced in Castle Rock v. Gonzales; there, the U.S. Supreme Court held that a state was not culpable for its failure to enforce a protective order, with tragic results.
But the U.S. government's confidence may be misplaced. There are several ways in which a legal challenge to ORR's practices could be distinguished from Deshaney. First, the loss of nearly 1500 children constitutes a widespread policy failure tantamount to affirmative state action, not the more isolated acts of discretion-gone-wrong raised in prior cases. Second, if any of these children were separated from their parents at the border, the government's actions are interventions that place children in a worse situation vis-a-vis familial care; this is quite distinct from the position argued in Deshaney that Joshua, placed with his father, was no worse off because of government involvement, or the argument in Castle Rock that the order of protection did not change the underlying situation . Third, because both the children and their parents in these cases are undocumented immigrants, they have no choice but to place singular reliance on the government. In the vast majority of jurisdictions (and under federal law), the affected individuals have no access to counsel and no ability to structure alternative arrangements or challenge the government's decisions in real time. In Gonzales, the Court suggested that the holder of the protective order might have taken alternative steps to secure protection; the same cannot be said of vulnerable immigrant children.
It would be foolhardy to predict that the current Supreme Court will follow Justice Blackmun's dissent should a challenge to this practice reach the Court. Yet, there must be some constitutional limit to government impunity for affirmative actions that harm children -- not only by making them vulnerable to trafficking, but also by subjecting them to trauma and, in some cases, the torture of family separation. Justice Blackman's anguished cry, "Poor Joshua!" stands as a moral rebuke to policies that ignore the impacts of government actions.
But "Poor Joshua!" is also a rallying cry that reminds us of the stakes. Brain damage in the Deshaney case; three girls killed in Castle Rock; 1500 vulnerable immigrant children missing, according to today's news. Someday, governments will be held legally as well as morally responsible for such policies.
Sunday, May 27, 2018
By Irene Sharf, Prof. of Law, UMass Law School, guest editor
In Federal District Court in Boston on May 22, 2018, federal agents, responding to pointed questioning by Judge Mark Wolf, claimed that they had halted their controversial practice of arresting undocumented immigrants who present themselves to government offices while in the course of applying to regularize their immigration status. The Boston ICE field office acting director, Thomas Brophy, told the judge that the practice had occurred under his predecessor, but that, in February when he took over, he eliminated it. An ICE spokesman would not clarify whether this was a local or a nationwide change in the Trump Administration’s policy targeting immigrants.
A May 22, 2018 article in the Boston Globe (Maria Cramer) Federal judges in Boston are often sharply critical of ICE tactics), highlighted the criticism to which ICE has recently been subject by Boston’s federal judges. This criticism was made, for example, after the January 2018 ICE arrests of seven people at immigration offices in Massachusetts and Rhode Island, often immediately after they completed interviews with the office that processes applications for legal residency, USCIS (U.S. Citizenship and Information Services).
In early April, the ACLU filed a lawsuit challenging these recent arrests. The case, Calderon v. Nielsen, seems to have had a significant effect that should benefit immigrants in the New England region. The case challenges the Administration’s policy of “detain and remove,” in operation in Lilian Calderon’s case. A mother of two, she was detained by ICE agents at the USCIS offices in Rhode Island, where she and her United States citizen husband had appeared for an interview to process her application for legalization through their marriage. Lilian was brought to the U.S. as a three year-old without authorization; she has been subject to deportation since her teens, when her father lost his bid for political asylum. After their in-person interview in the USCIS office, which apparently went well, ICE agents took her into federal custody, where she remained for weeks, until the ACLU’s class action lawsuit.
The ACLU launched several objections to the policy, challenging it based on constitutional grounds that it violates the due process and equal protection clauses of the United States Constitution. The case, brought against the Trump administration and ICE on behalf of the Calderons and several other area families, adds to the ongoing and often successful litigation against this Administration, whose continued attacks against immigrants have not been particularly successful to date when challenged in court.
This “detain and remove” policy pits one arm of the U.S. government, USCIS, against another arm of the government, ICE, whose officers hover outside the USCIS offices as it conducts its interviews. For people like Lilian to get legal status, she must attend an interview at the USCIS office. But, once there, President Trump’s Administration is seeing to it that some applicants are arrested and placed into custody.
This tactic is likely a poorly-veiled attempt to discourage those in legitimate marriages with U.S. citizens from applying for the benefits to which they are entitled. It is also likely that, as a result of the policy, whose continued existence is now in question, many thousands will delay filing their applications, fail to file, or fear appearing at their interviews and have their applications denied.
The ACLU’s specific charges against this policy is that it violates the law by ignoring USCIS regulations that permit applicants like Lilian to stay in the U.S. while their applications are being processed. Additionally, the challenges reflect those made against the Administration’s failed attempts to cancel the DACA program last September, when Attorney General Sessions announced its imminent end. That announcement was immediately challenged through several lawsuits, including by state attorneys general. These lawsuits have so far been notably successful. Three federal district courts (California, New York, and the District of Columbia) enjoined the Administration’s plans to terminate the program in March. The case is on review by the Ninth Circuit Court of Appeals. And, on April 24, a judge for the District Court for the District of Columbia ruled that the Trump administration must accept new DACA applications, staying his decision for 90 days to allow the DHS to explain why it was rescinding the program.
The DACA rescission challenges are based on claims of equitable estoppel, due process violations, and unequal protection, all seemingly providing inspiration for the Calderon litigation. These arguments can be used in the Calderon case, as these married couples relied on the regulatory and legal scheme of U.S. law that, once married, they could remain safely in the U.S. while their applications for legal status based were being adjudicated. Having one branch of the government “invite” applicants to come to interviews only to have another branch arrest them when the interview is over represents a complete breach of faith in the U.S. legal system.
Additionally, the ACLU’s equal protection claims reflect those raised in ongoing challenges to the President’s Travel Ban, that it was inspired by the President’s racial animus against non-“white-skinned” people. Cited reports that Trump prefers immigrants from Norway, a largely “white-skinned” nation, have been submitted, along with other proof, to establish his use of racial animus to develop these policies. The arguments have also been largely successful to date, reflected at recent U.S. Supreme Court arguments.
In the case of the Calderons and others, the government has set a trap for people who are following the law, regulations, and existing practice. While USCIS claims it did not coordinate with ICE in these arrests, each is nonetheless an arm of the same federal department, the Department of Homeland Security; the arrests are likely to be found to have originated from the same office.
Thursday, May 24, 2018
A democracy cannot sustain itself when millions live in extreme poverty. UN Rapporteur for Extreme Poverty and Human Rights Philip Alston is expected to release his report in early June, having conducted a tour of the United States. As reported in a December Guardian article, one question to be answered is whether " it is possible, in one of the worlds leading democracies, to enjoy fundamental human rights such as political participation or voting rights if you are unable to meet basic living standards, let alone engage... in the pursuit of happiness."
Mr. Alston can bring a holistic perspective to the failures on both the state and federal levels. As Martha Davis noted in the Guardian article, there is a lot that Philip Alston can say about basic inequality that goes to the heart of the rights that he is reviewing.
Mr. Alston's preliminary findings found some pockets of support in communities that took it upon themselves to assist the poor, but primarily US policies work against aiding those in poverty and result in limitations on social mobility. We have been warned for decades about the growing gap between the rich and poor. We anticipate Mr. Alston's report will clarify some root causes of the gap and subsequent denial of human rights that conditions of extreme poverty promote.
This blog intends to present a series on the Rapporteur's report upon its release.
Wednesday, May 23, 2018
The separation of families at our borders is horrific and inflicts multiple traumas on already traumatized people. Even more distressing is the abuse of unaccompanied minors. Many find the topic too distressing to discuss. But the abuse of unaccompanied minors has been examined by the University of Chicago's International Human Rights Clinic along with the ACLU's Border Litigation Project. The partners have issued a report entitled Neglect and Abuse by Unaccompanied Minors by US Customs and Border Protection.
Documenting both abuse of children, ages 5 to 17, and the failure of authorities to investigate complaints, a partial findings are: 25% of the children reported physical and sexual abuse; physical abuse included the use of stress positions, as well as beatings by Border Patrol Agents. Have reported verbal abuse including death threats. Eighty percent reported inadequate food and water.
The report documents many additional indignities including unsanitary conditions that place the minors in holding areas filled with conditions dangerous to their health, such as overflowing sewerage. While the report is disturbing to read, the provided information and the exposure of the brutal treatment of children is critical if there is to be any hope in creating change. Further information can be obtained at the ACLU website.
Kudos to Chicago's IHR clinic students.
Tuesday, May 22, 2018
In 2015 Pete Hoekstra lied. He said that the Islamic movement was causing chaos in Europe and was responsible for burning politicians and cars in the Netherlands. Hoekstra acnowledged that this report was fake news. Now Hoekstra is the US ambassador to the Netherlands and on his first day on the job he did his best to avoid reporters' questions. But members of the press responded "This is the Netherlands, you have to answer questions." Having repeatedly been asked to retract his 2015 statements, Hoekstra ignored the questions. A video of the exchange may be watched here. Hoekstra was born in the Netherlands and in the US became a republican member of congress. Hoekstra wishes to work on strong relations between the Netherlands and the US. More fake news?
By contrast, US Ambassador to Panama, John Feely, quit his position, and wrote an op-ed explaining that the president had warped traditional values. It is unlikely we will see such a denoument in the Netherlands.
Monday, May 21, 2018
On May 7, the UN Disarmament Affairs chief, Izumi Nakamitsu, urged members to "silence the guns," noting that lack of adequate gun regulation was a prime contributor to the pandemic of gun violence. The official's remarks were made in anticipation of the upcoming UN conference on small arms. From 18-29 June, States will gather at the UN Headquarters in New York, for the Third Review Conference on the Programme of Action on small arms – the key global instrument that has guided international action against the illicit trade in small arms over the past two decades.
But in the U.S., on May 18, more schoolchildren, this time in Texas, experienced yet another deadly shooting spree apparently at the hands of a troubled individual with access to guns. And this morning, across America, concerned families had to pack school lunches and send their children off for the day, worried about whether the next act of senseless gun violence might occur in their own child's school.
Just a few weeks ago, in the wake of the Parkland massacre, we ran a series on gun violence and human rights.
Sunday, May 20, 2018
On Saturday morning, millions of Americans (some, somewhat guiltily) tuned in early to watch the wedding of Meghan Markle and Prince Harry, now the Duke and Duchess of Sussex. One of the many celebrities in attendance was Amal Clooney, the British human rights lawyer and law professor who is married to actor/director/activist George Clooney.
In her day job, however, Clooney is a visiting professor at Columbia Law School and a practicing human rights attorney, currently handling an important case on freedom of the press in Myanmar.
The Washington Post recently ran an interesting piece suggesting that Amal Clooney's fashion prominence is a calculated means to elevate attention to the human rights causes that she champions as a working lawyer. In a May 2018 Vogue cover story, for example, Clooney highlighted not only her fashion choices, but a case on genocide and violence against women that she has been handling.
For most of us in the human rights field, this would be a tough juxtaposition to manage. And really, how many of us are even making fashion choices?
Importantly, not all of Clooney's public appearances involve fashion. For instance, just a few weeks before the royal wedding, Clooney moderated a substantive Columbia Human Rights Institute discussion with the outgoing UN High Commissioner on Human Rights, Zeid Ra’ad Al Hussein. As reported by the Institute, Zeid and Clooney discussed the serious problem of the lack of fair trials around the world: “I know we both feel that governments are increasingly using courts as a tool for repression and able to do it quite successfully, unfortunately so far,” said Clooney. “We’re collaborating on a project now where the UN High Commissioner’s office and my foundation are developing training in international human rights standards so we can have some monitors: people in courtrooms watching trials and reporting on the fairness of trials all over the world.” Zeid also emphasized the importance of human rights study in law schools, and encouraged schools in other fields to similarly start human rights centers.
No mention was made of the label responsible for Clooney's sensible black outfit. In this instance, fashion was not the point.
But, just days before the law school's final exams, the event was held in a packed auditorium.
So is Amal Clooney's stealth fashion-human rights strategy working? Should more of us up our fashion game just a bit, in service of human rights?
Thursday, May 17, 2018
Speaking about undocumented immigrants, the President of the United States said on Wednesday: “You wouldn’t believe how bad these people are. These aren’t people. These are animals.”
Many commentators have noted the parallels between this dehumanizing language and Nazi propaganda describing Jews as rats, a deliberate tactic to numb the wider populace to the Nazi's inhumane treatment of Jews and other groups. Importantly, as Bryan Resnick points out in Vox, dehumanizing language has an effect even on those who are not disposed to such views. Resnick quotes Adam Waytz, a psychologist at Northwestern University, who concludes that “it’s extremely easy to turn down someone’s ability to see someone else in their full humanity.” And once that happens, people are more ready to accept actions that harm these individuals.
In the Trump era, dehumanizing language has become all too common. Trump himself sets the tone, calling some individuals names like "lyin' Ted Cruz" and "crooked Hilary," and demeaning others as "animals" who hail from "shithole" countries.
To combat the impact of this language, we have to consciously and actively resist, using alternative language that counters the de-humanization and taking actions that affirm individuals' humanity.
There are models of resistance in unexpected places. In one of his finest public moments, Senator John McCain, campaigning for president, refused to go along with efforts to dehumanize President Obama, instead asserting: "He’s a decent family man, a citizen that I just happen to have disagreements with on fundamental issues, and that’s what this campaign is all about.”
The sanctuary policies that Trump so abhores but that have been adopted by communities around the country are also effective counter-measures, since they further the recognition of immigrants' humanity -- indeed, these policies are well-supported by basic human rights principles.
As the President's drive to de-humanize immigrants (and other groups from women to African Americans) continues, it is worth remembering that responding with language and actions that affirm individuals' humanity and human dignity can be an effective response that disarms insidious effect of the President's words. It is no accident that the human rights movement itself crystallized in the wake of WWII -- "human rights" is a powerful tool against dehumanization.
So blog, tweet, write, sing, create art, teach your students and your children, speak up in public and private spaces about the human rights and human dignity of every person, particularly those who are being targeted by this administration.
Take actions, large and small, to affirm individual human rights.
To be silent, to just observe on the sidelines, is to accept the insidious and harmful impact of this language.
Wednesday, May 16, 2018
With the focus on elimination of mass incarceration and ending inhumane prison practices, the Pew Charitable Trusts have examined what works. With its motto of "Using Data to Make a Difference", their research has shifted from finding methods of changing attitudes for those incarcerated or at risk of incarceration to shifting criminal practice and policy to prevent incarceration in the first instance.
South Carolina, for instance, has seen a 14% reduction in numbers of incarcerated individuals since providing options for both sentencing and release. The enacted legislative reforms reduced penalties for minor drug and property crimes, while release options expanded with community supervision expanded. During the six year period covered by the study (2010-2012) six prisons closed, the crime rate decreased and the existing prison population is largely more violent criminals.
Since 2010, 35 states have raised felony theft thresholds but experienced no increase in crime. Generally, all US states have experienced a decrease in crime.
"Experts attribute the nation’s sustained drop in violent and property crime rates to a host of factors, including better policing; the increased incarceration of certain repeat offenders; an expansion in private security personnel; an aging population that is less prone to criminal behavior; and technological advances, such as the widespread use of surveillance cameras, car- and home-alarm systems, and digital transactions that have reduced the need for cash."
The US prison population is still the largest in the world. But what is apparent is that shifts in state policy make significant differences. Both federal and state prisons remain the sites of gross human rights violations, with the states incarcerating the clear majority of those engaged with the criminal justice system. Even seemingly small legislative changes can make significant differences. A good reminder that local human rights advocacy can create important change.
Tuesday, May 15, 2018
How Many More Families Must Endure the Death of a Loved One Before the U.S. Will Put an End to the Abusive Detention of Immigrants?: 70 Organizations Call on the International Community to Intervene.
by Sarah Paoletti, Penn Law, contributing editor
One year after Jean Carlo Jiménez Lanza, a 27 year old Panamanian citizen, died in detention at the Stewart Detention Center in Georgia, 70 advocacy organizations have joined in Project South’s call for the international community to intervene. Mr. Jiménez Lanza’s death May 15, 2017, is not an isolated incident. That same month, Atul Kumar Babubhai Patel, a 58-year-old immigrant from India, died in the Atlanta City Detention Facility. According to Detention Watch Network, 177 people have died while in ICE custody between the years 2003 through 2017. And 2018 is already marred by three additional deaths: Yulio Castro-Garrido, a 33 year old man from Cuba, who died while in ICE custody at Stewart; Luis Ramirez-Marcano, 59, a Cuban national detained at the Krome Detention Center in South Florida; and, most recently, Gourgen Mirimanian, a 54 year old Armenian national, detained by ICE Prairieland Detention Center (PDC) in Alvarado, Texas.
One cannot understate the tragedy of these deaths, and the – at best – willful blindness on the part of the U.S. government and particularly the Department of Homeland Security to the conditions and circumstances that ultimately result in such tragedies. Advocates have long been calling for an end to immigration detention, and – at the very least – for adherence to ICE’s Performance Based National Detention Standards of 2011. In its Communication to the UN Special Rapporteur on Migrants, as well as several other UN rapporteurships and working groups with relevant mandates, Project South and the Transnational Legal Clinic at the University of Pennsylvania School of Law, have detailed the ways in which officials at the Stewart and Irwin Detention Centers in Georgia routinely violate those Detention Standards, and well-established rights under international law.
In May 2017, the same month that Mr. Jiménez Lanza, died in ICE Custody at Stewart, Project South and the Center for Immigrants’ Rights Clinic at Penn State School of Law released a detailed report, Imprisoned Justice: Inside Two Georgia Immigration Detention Centers, highlighting the abusive conditions at the Stewart Detention Center, and at the Irwin Detention Center, both owned and operated by the for-profit corporation, CoreCivic, Inc. (formerly Corrections Corporation of America). Later that year, Project South and their allies sent their report with a request for an investigation to the Georgia Congressional Delegation. To date, no officials from the Department of Homeland Security have responded to the call to come to Georgia to meet with Project South, other advocates, and the families of those detained at the Stewart and Irwin facilities. Similarly, the Georgia Congressional Delegation has not heeded the urgent invitation to intervene.
Having failed to garner a satisfactory response from the executive and legislative branches of government, advocates are now looking to the courts and the international community to intervene. On April 17th, Project South, together with the Southern Poverty Law Center and Burns Charest LLP, filed a class action on behalf of Wilhen Hill Barrientos, Margartio Velazquez Galicia, and Shoaib Ahmed, and others similarly situated, in the Middle District of Georgia, against CoreCivic, Inc., challenging CoreCivic’s “deprivation scheme intended to force detained immigrants to work for nearly free.” Earlier in April, Southern Poverty Law Center, together with Kilpatrick Townsend & Stockton LLP and the Law Office of Melissa Crow, filed suit in the U.S. District Court in the District of Columbia against DHS, ICE and high-level officials with oversight over immigration detention, challenging their systemic denial of access to counsel to immigrants detained at the Stewart and Irwin Detention Centers in Georgia, as well as the LaSalle Detention Center in Jena, Louisiana.
The Communication submitted to the UN Special Rapporteur on Migrants was copied to the UN Working Group on Arbitrary Detention, the UN Working Group on the Use of Mercenaries, the UN Special Rapporteur on Torture, the UN Special Rapporteur on Contemporary Forms of Slavery, the UN Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia, and Related Intolerance, the UN Special Rapporteur on Freedom of Religion or Belief, and the UN Special Rapporteur on the Promotion and the Protection of the Right to Freedom of Opinion and Expression. It calls on the UN independent human rights experts to intervene and urge the United States to uphold its obligations under international law. It asks them to issue a letter of allegation to the United States with a request for an invitation to conduct a site visit. In the alternative, it calls on these bodies to conduct an informal site visit, and to listen to and amplify the voices of those detained at Stewart and Irwin – voices that the U.S. government, and its proxy CoreCivic, have sought to silence – before another person dies.
Monday, May 14, 2018
Since the Supreme Court’s opinion in Jesner v. Arab Bank was issued on April 24, the HRAH blog has published four pieces analyzing the opinion and its implications. This is our most recent “Scholarly Voices” series, a periodic effort to step back and bring a variety of voices to the fore in analyzing important human rights developments. Other Scholarly Voices mini-symposia have reflected on the first year of the Trump Administration, the Administration’s “no show” at the InterAmerican Commission, and other timely topics where scholars can offer insights.
The Jesner series began with Rooting for the Home Team, Jena Martin’s stark assessment of the Court’s willingness to apply American Exceptionalism to protect corporations over humans. Beth Stephens followed with a catalog of “Five Things I Don’t Like about the Jesner Opinion,” putting the Court’s decision into the larger context of cutbacks to civil litigation and treatment of corporations. Margaret Drew continued the theme of corporate impunity, noting the tensions between Citizens United and Jesner, in her piece Corporations: What Art Thou? Finally, in Whither Human Rights Litigation After Jesner?, Christopher Whytock offers thoughts about future avenues for human rights litigation in the U.S., particularly in state courts.
Sunday, May 13, 2018
by Deborah M. Weissman, UNC School of Law and guest editor, serves as legal adviser for the North Carolina Citizens Commission of Inquiry on Torture.
This week, as attention focuses on the Senate confirmation hearings of Gina Haspel, President Trump’s nominee as the next Director of the CIA, two victims of the CIA’s Extraordinary Rendition and Torture program received an unprecedented apology from the British government for the human rights violations they suffered. The U.K. acknowledged its participation in the rendition and detention of Fatima Boudchar and Abdul Hakim Belhadj, a married couple, who were fleeing Libya because of the persecution they faced as a result of Belhadj’s opposition to the regime of Muammar el-Qaddafi.
Ms. Boudchar may be the only women to have been identified as a victim of the CIA Torture Program. She was four months pregnant when she was captured, interrogated, and tortured for many months after having been rendered to Libya; her husband was held there and tortured for some ten years. In 2012, the couple filed suit in the High Court of Justice of England and Wales against former foreign secretary Jack Straw and members of various UK intelligence agencies and although at some point in the process, they were offered a settlement, the two refused to end their claims unless and until the UK government apologized or otherwise acknowledged its involvement—an outcome they are currently celebrating.
While the acknowledgement and settlement funds they have received from the UK is undoubtedly a significant development, their right to accountability and repair remains only partially fulfilled. In a recent opinion column published in the N.Y. Times, Ms. Boudchar stated that the worst of her experiences occurred “in Thailand at the hands of the C.I.A,” in a dark site under the command of Gina Haspel where Boudchar and her husband were held in a secret detention before being rendered to Libya. She poignantly asks whether Gina Haspel “‘plans to be totally transparent’ about what she did.” Thus far, we know from the confirmation hearings that Ms. Haspel has no such plans and has offered little by way of acknowledgement or repair for the harm that Mr. Belhadj and Ms. Boudchar suffered.
Haspel, individually and on behalf of the CIA, is not the only player to evade responsibility for the human rights violations that were perpetrated. Mr. Belhadj and Ms. Boudchar were kidnapped and extraordinarily rendered on a plane owned and operated by Aero Contractors, an entity incorporated and located at a county airport in Johnston County, NC. The Aero plane flew them from Thailand and to Libya under horrific conditions that Boudchar describes as “agony,” and Belhadj describes as “torture.” Despite ongoing requests for government officials of the state of North Carolina, its political subdivisions, and Aero to acknowledge their wrongdoings and offer apologies, to date there have been no forthcoming admissions or efforts to repair the harm Mr. Belhadj and Ms. Boudchar, or any of the other victims of extraordinary rendition and torture have suffered.
At the UNC School of Law’s Human Rights Policy Lab, we continue to believe that the task of advocates is to press into service the recent disclosures, judicial theories, advocacy strategies, and the global concerns that point to accountability and remedy for torture. To that end, we have joined with other advocates to establish the NC Citizens Commission of Inquiry on Torture, a 501(c)3 organization created to investigate and encourage public debate about the role that North Carolina played in facilitating the U.S. torture program, and on behalf of Ms. Boudchar and Mr. Belhadj, to do the job that our government refuses to do.
Thursday, May 10, 2018
This year's BHRH CLE will be hosted at Cleary Gottlieb in New York City on June 1.
The program is "Advancing Racial Justice and Human Rights: Rights-Based Strategies for the Current Era".
The program includes discussions on an Overview of Legal Framework and Core Principles, Strategies for Effective International Engagement and Leveraging Success Domestically, and Responding to Emerging Threats with Rights-Based Approaches.
Wednesday, May 9, 2018
A new book by Alexandre Lefebvre, Human Rights and the Care of Self, takes an unusual 360 degree view of human rights that is both outward and inward facing.
Here's the publisher's description:
"When we think of human rights we assume that they are meant to protect people from serious social, legal, and political abuses and to advance global justice. In Human Rights and the Care of the Self Alexandre Lefebvre turns this assumption on its head, showing how the value of human rights also lies in enabling ethical practices of self-transformation. Drawing on Foucault's notion of "care of the self," Lefebvre turns to some of the most celebrated authors and activists in the history of human rights–such as Mary Wollstonecraft, Henri Bergson, Eleanor Roosevelt, and Charles Malik–to discover a vision of human rights as a tool for individuals to work on, improve, and transform themselves for their own sake. This new perspective allows us to appreciate a crucial dimension of human rights, one that can help us to care for ourselves in light of pressing social and psychological problems, such as loneliness, fear, hatred, patriarchy, meaninglessness, boredom, and indignity."
Lefebvre's new book gives this issue a scholarly treatment, but three decades ago, American philanthropists Susan and Albert Wells intuitively recognized the importance of self care for social justice organizers and activists, and they created the Windcall Residencies to provide space for reflection and re-generation. Hundreds of activists have taken Windcall breathers over the years. More information on this visionary program -- that puts the human right to self care into practice -- is available here.
[Editors' Note: We are thrilled to report that the Human Rights at Home blog is this week's ABA Journal's Featured Blawg of the Week!"]
Tuesday, May 8, 2018
by Christopher A. Whytock, Professor of Law, UC Irvine School of Law, guest contributor
In Jesner v. Arab Bank, the U.S. Supreme Court held that foreign corporations may not be defendants in Alien Tort Statute (ATS) suits. I agree that the Court’s decision and its reasoning are flawed, for many of the same reasons given in Justice Sotomayor’s dissenting opinion and in the earlier entries in this blog’s series on Jesner (see here, here and here). Rather than repeat criticisms already made, I speculate here about what might happen for human rights litigation after the Jesner decision.
First, some human rights claims might still be pursued in federal courts. As Beth Stephens notes in her entry in this series, the holding in Jesner is limited to foreign corporations, so ATS suits against U.S. corporations (as well as against individuals) might still be viable in some cases. In addition, as Seth Davis and I extensively discuss in a recent article, State Remedies for Human Rights, non-ATS human rights claims might be pursued in federal court based on state law (including tort law) or, depending on choice-of-law analysis, based on foreign law.
In State Remedies for Human Rights, Seth and I also discuss a second possibility: human rights claims in state courts based on state law, foreign law, or perhaps international law. As Nathan Miller has argued, the state court/state law approach may have the unfortunate consequence of treating human rights violations as merely “garden variety municipal torts” (p.506). As Justice Sotomayor puts it in her Jesner dissent, “A suit for state-law battery, even if based on the same alleged conduct, is not the equivalent of a federal suit for torture…” (p.29). But after Kiobel and Jesner, the approaches Seth and I discuss may be the only ones realistically available for many international human rights claims in American courts.
Even human rights claims in state courts and under state law will face a considerable number of potential legal barriers, including foreign relations removal, personal (and, in federal courts, subject matter) jurisdiction, the political question doctrine, the forum non conveniens doctrine, federal preemption, and others. Seth and I argue that when courts interpret, apply, and refine those doctrines, they should explicitly consider both a state’s interest in providing remedies for human rights violations and the importance of remedies for the individuals against whom those violations have been committed. If they determine that other considerations outweigh those remedial considerations, they should explicitly give reasons for why remedial considerations are outweighed. In our article, we defend our concept of state remedies for human rights as a matter of state law, federal law, international law, and political theory.
Unfortunately, Jesner illustrates just how lopsided the analysis can be. Justice Kennedy’s opinion (partly for the Court, partly for a plurality) emphasizes foreign relations concerns and business interests, but pays little attention to remedial considerations and fails to justify why it weighs the former so much more heavily than the latter in its reasoning.
A third possibility is that suits that would have been filed in U.S. federal courts before the Kiobel and Jesner decisions will increasingly be filed in the domestic courts of other countries. Others have already observed that other countries’ domestic courts are open to human rights claims even as the U.S. Supreme Court is closing the door on ATS claims (see here and here.)
This observation illuminates an ironic aspect of the plurality’s reasoning, which is based partly on a concern that allowing foreign corporations to be ATS defendants would have set a precedent that “could subject American corporations to an immediate, constant risk [of being defendants in human rights suits] in foreign courts…” (p.24). Instead, the Kiobel and Jesner precedents may lead foreign courts to increasingly step in to fill the gap in human rights accountability—including corporate accountability—that the U.S. Supreme Court’s approach risks exacerbating. The plurality does not seem to have imagined this possibility, even though there appears to be a broader trend toward greater multipolarity in transnational litigation, whereby the influence of foreign courts is growing as U.S. courts increasingly fall into a state of what Pamela Bookman has called litigation isolationism.
Regional and international human rights bodies are a fourth possibility—but given their limited jurisdiction and enforcement powers, this alternative will often be unavailable or ineffective. It is worth remembering that this is one reason why the international human rights system depends largely on domestic enforcement.
Finally, it is easy to be too court-centric when thinking about human rights protection. Needless to say, non-litigation advocacy strategies for human rights protection will be as important as ever after Jesner, along with new litigation strategies.
Monday, May 7, 2018
Last week, Robert F. Kennedy Human Rights announced this year's Book and Journalism Award winners.
The prestigious book award went to The Blood of Emmett Till, by Timothy B. Tyson, a reexamination of a pivotal event of the civil rights movement—the 1955 lynching of Emmett Till -- a timely award in light of the newly opened National Memorial for Peace and Justice.
A special award was issued to law professor Peter Edelman for his most recent book, Not a Crime to Be Poor: The Criminalization of Poverty in America. According to Edelman, "[t]hrough money bail systems, fees and fines, strictly enforced laws and regulations against behavior including trespassing and public urination that largely affect the homeless, and the substitution of prisons and jails for the mental hospitals that have traditionally served the impoverished, in one of the richest countries on Earth we have effectively made it a crime to be poor."
Maria Foscarinis, Founder and Executive Director of the National Law Center on Homelessness and Poverty, reviewed Not a Crime to be Poor here, calling it "a critical and searing look at the criminalization of poverty in America."
Sunday, May 6, 2018
Having just completed my first Inside Out program with our local women's jail, I witnessed first hand the transformation that occurs when those who have been deprived of adequate education begin their journey to learning. A 2013 RAND Corporation study affirmed what most suspected. Education is key to reducing recidivism. "Our meta-analytic findings provide additional support for the premise that receiving correctional education while incarcerated reduces an individual’s risk of recidivating after release." The promotion of Inside-Out programs was one topic discussed recently by Pulitzer Prize winning Prof. James Forman at the AALS Clinical Section Conference. Forman is the author of Locking Up Our Own, which looks at the roots of mass incarceration. Forman advocated for more college education classes in prisons and jails.
Receipt of books by those who are incarcerated is essential for continuation of "inside" self-education. But educational programs are not a priority, particularly for privatized prisons. Everything from phone calls to Skype visits with children are available only to prisoners who pay. Shortsighted is the most generous description I can attach to a recently announced policy that prisoners would no longer be able to receive books directly from distributors, except for one approved by the prison. And those books would come with a 30% mark up.
Family and friends of incarcerated men and women responded, as well as those inside, as well. Coleman federal prison in Sumterville, FL was one that announced the new policy and that facility was the topic of advocacy efforts through national listserves and individual inquiry. Then the policy was rescinded.
To the extent that the policy was a "test", the national grassroots response was sufficient to at least postpone its implementation.