Human Rights at Home Blog

Justices Divide on Abortion Free Speech Case

While the nation was distracted by the crisis of children being separated from their parents at the US border, a Supreme Court decision impacting abortion providers was less noticed.  In The National Institute of Family and Life Advocates, dbs NIFLA, et al v. Becerra, Attorney General of California, et al,  the court decided that free speech protections prevented California from requiring anti-choice organizations to provide information on abortion availability as part of their services. 

Justice Breyer pointed out the inconsistency with Planned Parenthood v Casey requires abortion providers to distribute certain kinds of information to clients.  "As the question suggests, there is no convincing reason to distinguish between information about adoption and information about abortion in this context.  After all, the rule of law embodies evenhandedness, and 'what is sauce for the goose is normally sauce for the gander'"   Justice Thomas attempted to distinguish the cases by arguing that the 1992 Planned Parenthood case involved a medical procedure.  Justice Thomas responded "Really? No one doubts that choosing an abortion is a medical procedure involves certain health risks.  But the same is true of carrying a child and giving birth." Justice Breyer noted that childbirth is 14 times more likely to result in the woman's death than abortion.

Justice Breyer might have added that US maternal death rates are the highest in the developed world.

I would have said that perhaps it is time for laws imposing speech on abortion providers be revisited. But given this week's news of Justice Kennedy's retirement, maybe not.

Judge Orders Parents Reunited With Their Chidren

A San Diego federal judge has ordered immigration officials to reunite children and parents.  In addition to barring the now suspended practice of separating children from families, Judge Dana Sabraw ordered that children under five be reunited with their parents within fourteen days and that parents of children of all ages be permitted to speak with them within ten days.  Further the court order requires parents subject to deportation to leave with their children.

In what will no doubt be an oft quoted sentence from his opinion, Judge Sabraw said, " The unfortunate reality is that under the present system migrant children are not accounted for with the same efficiency and accuracy as property." The administration's attitude expressed by Judge Sabraw is simultaneously arrogant as well as cavalier.  Invoking property rights reminiscent of slave owners, the administration has not bothered to properly document the parental relationship of children in its custody.  As Judge Sabraw noted, the Executive Order that terminated the process of separating children from parents made no mention of whether or how to reunite already separated children from the parents who brought them across the border. 

"The facts set forth before the court portray reactive governance responses to address  chaotic circumstance of the government's own making. They belie measured and ordered governance, which is central to the concept of due process

A status conference in the case is scheduled for July 6th.

Of note, the Plaintiffs in Ms. L; etal v. ICE were certified as a class, thus permitting the nationwide injunction.  The injunction was issued on the same day that Justice Thomas opined on the validity of federal courts issuing nationwide injunctions in the case of Trump v. Hawaii.   The Supreme Court refused to rule on the issue in Trump v Hawaii but the issue may not be capable of escape as the Ms. L case winds its way to that court.

The US Supreme Court's Travel Ban Decision

Prof. Irene Scharf discusses today's decision on the "travel ban" case. 

  
Today the Supreme Court ruled in the case of Trump v. Hawaii, commonly referred to as “Travel Ban 3.0.” Chief Justice Roberts, writing for a 5-4 majority, ruled that President Trump’s third and latest iteration of the travel ban does not violate either the Constitution or the Immigration and Nationality Act (INA).

The bottom line is that the ban will be fully enforced starting today. To summarize, Chief Justice Roberts said “the Proclamation is squarely within the scope of Presidential authority under the INA.” He emphasized the fact that 8 USC section 1182(f) is a “comprehensive delegation” that “exudes deference to the President in every clause.” Nor did he find the Proclamation to be inconsistent with the INA. Further, the Chief Justice wrote that the Proclamation did not violate the Establishment Clause of the Constitution, countering the plaintiff’s claims that it was “motivated not by concerns pertaining to national security but by animus towards Islam.“ He asserted that the Court’s role is not to “probe and test the justifications of immigration policies.“ Finally, because he found the proclamation to be “neutral on its face,“ the plaintiff did not demonstrate a “likelihood of success on the merits of their constitutional claim.“ In the end, the preliminary injunction granted by the District Court was reversed, and the case was remanded to that court. While the majority did not express any opinion as to the soundness of the policy, it did overrule the long-standing and deeply disturbing opinion of Korematsu v U.S., a 1944 decision in which the court permitted to stand WWII internment of U.S. citizens of Japanese descent.

Justice Kennedy concurred in the opinion, making a cautionary point in saying that, while there are “statements and actions of Government officials” that “are not subject to judicial scrutiny or intervention[,] [t]hat does not mean those officials are free to disregard the Constitution and the rights he proclaims and protects....” Justice Thomas also concurred in the opinion, adding his thoughts about additional issues with the plaintiff’s claims, especially his point that the President has inherent authority to exclude foreign nationals. He also discouraged the use of nationwide injunctions by the federal courts, questioning their validity both legally and historically.

Justice Breyer wrote the dissenting opinion, joined by Justice Kagan, addressing the establishment clause claim, specifically concerns about the “elaborate system of exemptions and waivers” in the Proclamation. He mentioned evidence from a sworn affidavit, which suggested that “waivers are not being processed in the ordinary way;“ apparently that affidavit claimed that consular officers were not being given discretion to grant waivers. Thus, the justice would have upheld the preliminary injunction while the case was being litigated. Justice Sotomayor wrote a dissenting opinion, joined by Justice Ginsberg, holding that the Proclamation violated the Establishment Clause as it was clearly motivated by an unconstitutional animus. While acknowledging that national security is “an issue of paramount public importance,“ she stated that “none of the features of the Proclamation highlighted by the majority supports the government claim the Proclamation is genuinely and primarily rooted in a legitimate national security interest. What the unrebutted evidence actually shows is that a reasonable observer would conclude, quite easily, that the primary purpose and function of the proclamation is to disfavor Islam by banning Muslims from entering the country.” In support, she cited several examples of anti-Muslim statements by the president and his staff before his inauguration as well as after. The effect of this ruling is that the ban will continue to be enforced until the Administration either changes or repeals it, giving the President considerable power over the admission of foreign nationals. On the remand back to the District Court for further litigation, the plaintiff may continue to argue against the statutory and constitutional authority for the ban. Resources concerning the case and the travel ban are varied, including the following:

 

SCOTUSblog American Civil Liberties Union (ACLU) American Immigration Lawyers’ Association (AILA)

 

Would Deporting Dreamers be an international crime?

That's the question that William Thomas Worster, an American-trained lawyer on the faculty at the University of Amsterdam, asks in his provocative piece, Deporting Dreamers as a Crime against Humanity.  The abstract is below, and the entire paper can be accessed through the Social Science Research Network here.

Abstract

Much has been written about the Dreamers and their moral claim to a right to remain in the US, but what has not explored is whether their removal from the US might implicate international law, and, specifically, whether it would constitute a crime against humanity. On its face, it seems to be an outrageous claim: that deporting non-citizens from a state would be a criminal act. International law protects a state’s ability to remove unlawfully present aliens. This is not in debate. The argument is, however, far more narrow. Specifically, the forcible, arbitrary deportation of Dreamers with an intent to permanently remove them from their residence that is protected under international law would be criminal. 

This article will first consider the current law on the crime against humanity of deportation. The crime, which has a considerable pedigree, prohibits individuals from pursuing deportation of persons in certain situations. Among the key considerations is that the crime does not only apply to the forcible removal of citizens, but also to non-citizens in some circumstances. The distinction is whether the person is lawfully present in the state and that the removal is unlawful. As befitting an international crime, both of these standards are measured by international law, not domestic law.

The article then considers the case of the Dreamers. While it is true that they do not have US nationality or other authorized status, and thus a right to remain in the US under domestic law, they do have strong enough ties to consider the US their “own country”, a wider concept that nationality. Once an individual has an “own country”, he or she may not be arbitrarily removed from than state under international human rights law, unless the removal can be justified as non-discriminatory, necessary and proportionate to the risk to society. Further, under international human rights law, permissible cases of removal are very few. The removal of a non-criminal minor from the US with a long-standing home there cannot be justified as necessary and proportionate. 

Provided that the possible future removal was by force, in pursuit of a policy as such, committed with intent, and that the removals were widespread and systematic, then the removal would be a crime against humanity.

Psychiatrists Weigh in On the Separation of Families

American Psychiatric Association president Dr. Altha Stewart has issued the following statement on the separation of children from their families.

"As physician experts in mental health, the American Psychiatric Association opposes any policy that separates children from their parents at the United States border. Children depend on their parents for safety and support. Any forced separation is highly stressful for children and can cause lifelong trauma, as well as an increased risk of other mental illnesses, such as depression, anxiety, and posttraumatic stress disorder (PTSD). The evidence is clear that this level of trauma also results in serious medical and health consequences for these children and their caregivers. Many families crossing the United States border are fleeing war and violence in their home countries and are already coping with the effects of stress and trauma. These children deserve our protection and should remain with their families as they seek asylum. The APA recommends an immediate halt to the policy of separating children from their parents."

We note that while the policy has been halted, for now, the administration continues to torture the separated children in many ways.  There is no effort to re-connect the children with their parents; the children are not receiving psychiatric care and the limitation on employees touching the children only increases their isolation and enhances their detachment.

 

 

 

U.S. Response to UN Poverty Report: "I Really Don't Care. Do U?"

On Friday, UN Special Rapporteur on Extreme Poverty Philip Alston, formally delivered his report on U.S. poverty and inequality to the UN Human Rights Council.  Noting that UN Ambassador Nikki Haley had called the Human Rights Council a "cesspool of political bias" just days before when the US withdrew from the body, Alston reported that he had seen real cesspools during his tour of the U.S., notably in in the backyards of Lowndes County,  Alabama.

Ambassador Haley also had some choice words for Alston's report, calling it a "waste of time and resources."  Perhaps, some speculated, she forgot that the visit occurred at the invitation of the Trump Administration.  And perhaps she didn't have a chance to look at the Special Rapporteur's twitter account or the articles generated by his visit, which chronicle in great detail, in words and pictures, the poverty that he viewed as he toured the US. 

Maybe, some speculated, the US withdrawal from the UN Human Rights Council wasn't just because of Israeli controversies, but also because the US wasn't willing to accept criticism concerning the nation's deep inequality and growing pockets of abject poverty. 

Regardless, Nikki Haley didn't need a Zara jacket to send her message about US poverty and inequality to the American people, "I Really Don't Care.  Do U?" 

 

Crowd Size Matters: Marching for Human Rights

New family separations MAY have ended at the border for now, but whole family detentions are on the horizon, and meanwhile, thousands of children remain separated from their parents with no clear plan for reuniting them.  Family separation of this kind can have lifelong, debilitating impacts on children, leading to night terrors, developmental delays, and attachment issues with dire consequences for emotional health.  Many in the human rights community have equated the deliberate infliction of this distress with torture under international law.

So, as tempting as it may be to ease the pressure on the Administration, don't go there.  This is the exactly the time to double down -- to make sure that families are reunited as soon as possible, to make sure that family jail cells aren't the next border terror, and to pressure the administration to process asylum applications in a timely way.  The deliberate and calculated effort to discourage such applications is another violation of international (and domestic) law. 

The folks who organized the Women's March and the Families Belong Together group have announced two events where you can make a difference just by showing up.  On June 28, the Women's March has called for a day of civil disobedience to end family detention.  More info on this Washington, D.C. event will be posted here.   Then turn around on June 30 and do it again.  Families Belong Together is leading a march that Saturday  -- you can come to D.C., or find a march near where you live using the map here. 

As we all know, crowd size matters a lot to this administration!  Marching for basic human rights at the U.S. border is one of the most important things we can all do next week.

And Then They Came For Me...

Enough outrage has been expressed individually and in print.  Legislators agree that the practice of separating families at the border is horrendous but did not agree on legislation to stop it.  Reports of  the sounds of children's wails are heart-wrenching.  Thousands of unheld and uncomforted children are caged. One guard was reported to say that all that was needed to coordinate the wails is a conductor.  I imagine that in order to carryout the most despicable of orders, that guard and others harden their hearts.

The separation of young children and their parents was sinister.  The President has no bottom to his cruelty.  

Do we?  Yes- I mean you and me.   

In the years prior to his nomination, Donald Trump told the nation that President Obama was not born in the United States.  Trump knew that wasn't true, of course.  He was testing the American tolerance for lies and the extent of support of his outrageous behavior.  That ensuing support  gave Trump permission to engage in even  more dangerous and outrageous behavior.  Those behaviors  have ranged from embarrassing to cruel.

There is a similarity of plan with recent events of separating children from their parents at the border. The President is testing the horror tolerance of those who do not support him politically.  So far our response has not been commensurate to the offense.  These are children being herded into cages.  They are traumatized.  They are screaming for their parents.  But most of us went on with our lives without interruption, with the exception of perhaps the occasional Facebook post documenting our outrage.    

While the number of public statements condemning the President's action rose and protests were planned, I ask was our response immediate enough? Why were we still working, vacationing and carrying on as if a new order is not upon us?  Why were we not disrupting commerce?  Why didn't we  shut down universities and government? Most of us did not interrupt our lives to respond to the internment of our most vulnerable.   By not responding en mass what horrors did we invite?    

I was always moved by Niemoller's poem. I wondered if I would have the courage to resist.

I understand that the president's child separation action was our test and I wonder if we failed?

 

 

 

 

 

Yes, One Government Agency Speaks up for Families at the Border

The U.S. Civil Rights Commission has had some ups and downs over the years.  Appointees are political, but with six-year terms, their appointments extend beyond the next election.  At times, the result has been a stalemated group, unable to speak out effectively on the civil rights challenges facing the nation. 

Today, the basic composition of the Commission hasn't changed -- it's still a bi-partisan group of eight appointees.  But perhaps because of the extreme positions promoted by this administration, the U.S. Civil Rights Commission has found its voice and is energetically taking action to hold the line on civil rights.

On June 15, the Commission, acting by majority vote of six commissioners, sent a letter to the U.S. Departments of Justice and Homeland Security strongly condemning the Trump Administration's policy of separating children and families at the U.S. border. 

Recent reports have focused on voting rights, inequity in education funding, and workplace discrimination based  on sexual orientation.  Currently, the agency is investigating discrimination in government enforcement decisions.  After a period of neglect, the Commission has re-invigorated its state advisory structure, expanding its local eyes and ears, and reach, across the country.  

As the Human Rights at Home blog, we can't help but wish that the Commission would do more to frame its work through human rights norms, particularly since it is the closest thing that the U.S. has to a national human rights institution.  Without making any commitments on that score, Commission Chair Catherine Lhamon has encouraged NGO submissions to the Commission, such as comments on their proposed reports, that illuminate human rights concerns.  Further, the Commission has acknowledged the human rights implications of the administration's family separation policy; its recent letter specifically noted the UN disapproval of the policy.

In short, within its sphere of domestic human rights, the Commission is stepping up just when Americans most need a voice within the government that reiterates longstanding American values that seem to have been forgotten by other policymakers.     

Boston Judge Criticizes ICE Practices in Human Rights Terms

As reported earlier, Federal Judge Mark Wolf of Boston is presiding over an ACLU challenge to recent ICE tactics of summarily arresting and detaining undocumented immigrants who appear at federal offices for scheduled appointments to regularize their immigration status.  At issue in the case is whether ICE violated its own procedures, and the constitution, in initiating such detentions.

In a 62-page ruling requiring ICE to release two named plaintiffs from detention pending an immigration hearing, Judge Wolf began by noting that "This country was born with a declaration of universal human rights."  Judge Wolf reiterated the Declaration's proclamation that "'all men are created equal, that they are endowed by their Creator with certain unalienable rights,' and that 'among these' is 'Liberty.' " And Judge Wolf opined that these fundamental  protections are codified in the U.S. Constitution's 5th Amendment.

Judge Wolf did not reach the question of whether arrests of immigrants at marriage interviews is legal in general.  But commenting on the extraordinary facts of the case, Judge Wolf observed:

    "The United States has historically been distinguished by its dedication to treating lawfully and fairly all among us, including aliens who are in the   country illegally. However, as Supreme Court Justice Louis D. Brandeis observed, in each generation we "must labor to possess that which [we] have inherited." Paul Freund, "Mr. Justice Brandeis," in On Law and Justice at 119 (1968). These cases are a reminder that Justice Brandeis was right." 

US Bill Seeks to Affirm US Committment to International LBGTI Rights

Senator Edward Markey and Congressman Alan Lowenthal introduced the International Human Rights Defense Act of 2018 in both the house and the senate.  The legislators seek to make the human rights commitment to LGTI rights a priority nationally and internationally.

The legislation would direct the State Department to continue its efforts in defending the human rights of LGBTI individuals globally.  The bill would, among other terms, would require the State Department to develop a plan to address global discrimination against members of the LGBTI community.  In addition, State would be required to create a position "Special Envoy on the Human Rights of LGBTI individuals.

The bill is co-sponsored by numerous legislators and is supported by Human Rights Campaign, Human Rights First, Council for Global Equality, American Jewish World Service, National Center for Transgender  Equality, Robert F. Kennedy Human Rights and the American Psychological Association. 

For more information about the bill, see here. 

 

 

 

Not Fake News: The Administration Is Rejecting All Human Rights

What has become frighteningly clear is that the Administration is moving quickly to deny that human rights are of any consequence.  That human rights exist and human rights law has any influence is soon to be fake news.

In addition to the horrendous ripping of children and mothers at the US border, two recent actions support the administration's disregard of human rights.  Earlier this week, Attorney General Sessions announced that victims of gang violence and domestic violence will no longer be eligible for asylum.  In his announcement, Mr. Sessions stated that asylum was never intended to protect from these forms of violence.  Yet the risk of death by those trying to escape results from the home state's refusal to protect its citizens from gang and domestic violence. This is a state, not private matter.  Of course those most affected by this violence are women, LGBTQ individuals and children, who are particularly vulnerable targets of the President. 

Now it appears that the US will withdraw from the UN's human rights council.  The conceit used is US complaints that the council has passed too many resolutions condemning Israel for human rights violations.  Whether that is accurate is irrelevant to the decision.  The underlying indicators reveal that the President has wanted nothing to do with the HR Council since early in his tenure.  The Administration has heard enough about human rights. Any discussion is over.

 

 

A Human Rights Ethics Code for Law Firms and Law Clinics

In A Human Rights Code of Conduct: Ambitious Moral Aspiration For a Public Interest Law Office of Law Clinic, Prof. Lauren Bartlett addresses the development of lawyer ethics with a focus on the development of a human rights ethical code.  The development of human rights ethics codes for our clinics is an important concept and one that opens all sorts of opportunities to engage students in developing the code, but also the professional tenor and goals, of the clinic.

The Introduction to this intriguing topic reads:

Incivility and unethical behavior in the legal profession have long been topics of concern in the United States. In recent years, many state and local bar associations, as well as the American Bar Association (“ABA”), have taken steps to address incivility, including adopting professional rules, amending lawyers’ oaths of office, and more. Yet current events continue to test limits of tolerance for incivility and unethical behavior. What is more, too many lawyers are unhappy and unhealthy in the legal profession, which has been tied to ethics and integrity. In these difficult times for the legal profession, moral aspiration, or the hope or ambition for high ethical integrity, is incredibly important.

Lawyers seek moral aspiration from a variety of sources, including other lawyers, religion, and cultural norms. They also seek the rules, standards, and guidance applicable to lawyers in the United States This Article offers an alternative source for moral aspiration for lawyering—human rights—and suggests establishing a human rights dignified, respectful, and safe space, and to hold colleagues, students, and others, to high ethical standards. The idea of a human rights code of conduct for a law office or law clinic builds on recent scholarship applying human rights principles to lawyering. In addition, this idea follows the recent proliferation of corporations choosing to adopt social justice and human rights related codes of conduct.

A human rights code of conduct provides practical, consistent, and significant ways to apply human rights principles to lawyering. Modeled loosely after professionalism codes or civility codes across the United States, a human rights code of conduct draws on human rights principles and provides ambitious moral aspiration for attorneys and law students. A human rights code of conduct provides practical guidance for navigating difficult ethical dilemmas, without necessitating additional regulation. A human rights code of conduct also promotes attorney and law student happiness and helps the reputation of the legal profession as a whole.

The full article may be accessed here.

 

Call For Papers: Journal of Affordable Housing and Community Development Law

The Interconnections between Health and Housing

 

For its next issue the Journal of Affordable Housing & Community Development Law (the Journal) invites articles and essays exploring the interconnections between health and the Journal’s traditional themes: affordable housing, fair housing and community/economic development. Topics could include creative housing developments; federal, state, local and/or private funding sources; statutes, policies or regulations; and empirical studies. Articles and essays could analyze new developments, tell success stories, or explore problems relating to issue such as affordable independent/assisted living, aging in place, or in-home care, and propose legal and policy recommendations.The Journal welcomes essays (typically 2,500–6,200 words) or articles (typically 7,000-10,000 words) on the theme. 

 

The Journal is the nation’s only law journal dedicated to affordable housing and community development law.  The Journal educates readers and provides a forum for discussion and resolution of problems in these fields by publishing articles from distinguished law professors, policy advocates and practitioners.

 

Interested authors are encouraged to send an abstract describing their proposals to the Journal’s Editor-in-Chief, Tim Iglesias, at [email protected]. The Journal  accepts submissions on a rolling basis. Please do not hesitate to contact the Editor with any questions.

 

 

Seeking Compassion from the Administration? Grab A Celeb!

Last week President Trump commuted the sentence of a 63 year old woman who has been imprisoned for over twenty years, having been given a life sentence for drug trafficking.  Alice Johnson had been convicted in 1996 for conspiracy to possess cocaine and for attempted possession of cocaine.   Her crimes were non-violent but her sentence was considered by many to be disproportional to the offenses.  Ms. Johnson became involved with drug trafficking during a desperate time in her life.  She had lost her job, was divorced and experienced the death of her son.  

Advocates have been working hard for years to secure Ms. Johnson's release from an Alabama prison.  How was Ms. Johnson able to obtain success?  Kim Kardashian took up her cause after reading a tweet about the case.  Ms. Kardashian began advocating for Ms. Johnson, first by contacting Ivanka Trump and then Jared Kushner.  Finally, Ms. Kardashian secured a meeting with President Trump.  Ms. Johnson had been denied commutation under the Obama administration.  President Trump noted that Ms. Johnson was a model prisoner and executed the documents necessary to release the great-grandmother.

At the urging of Sylvester Stallone, President Trump earlier issued a full pardon for now deceased heavy weight champion John "Jack" Jackson.

Other pardons were less well received publicly, but involved the famous or notorious.   Dinesh D'Souza and Lewis "Scooter" Libby are among those who received Trump presidential pardons.  So be a celeb or find yourself one should you seek a presidential pardon during this administration. 

June NYC Human Rights Conferences

In conjunction with the State University of New York, New York City Pride will launch its First Human Rights Conference on Pride.  The one day conference will be held on June 14th at SUNY's Global Center at 116 E. 55th Street. The website informs  "This one day conference provides a unique opportunity for a global dialogue about human rights, ranging from performances to presentations, politics to policies, and activists to academics."   Assistant Secretary-General for Human Rights, Andrew Gilmour (UN OHCHR) will participate in the conversation. More information can be found here.

On June 18th, Benjamin Cardozo School of Law will host International Law:  A Casualty in the "War on Terror'.  The conference will be held at the law school at 6 pm. Prof. Gabor Rona and the law school, and Prof. Marco Sassoli of the University of Geneva will discuss the impact of current national security policies on international law.

Cardozo is located at 55 5th Avenue, NYC.  The conference will be held in the 3rd Floor Lounge.  A reception will follow.

You may register for the conference here.

Editors' Note: Thank you to IntLawGrrls for bringing the Cardozo conference to our attention.

 

 

 

 

 

 

News We Missed . . . So Maybe You did Too

We missed these the first time around.  In case you did too, get up to date now!

On May 21, the U.S. Supreme Court granted cert in Jam v. IFC, a case that will consider whether the International Finance Corporation, an arm of the World Bank, is entitled to absolute immunity.  The case was brought by poor Indian fishing and farming communities whose livelihoods and health have been threatened by an ICF-funded coal-fired power plant.  Earthrights International and the Stanford Supreme Court Litigation Clinic represent the communities bringing the case.  More info on the case's posture is available here, with commentary on its significance from the Just Security blog here.

AND . . . 

Last November, the New York Times ran an expose on U.S. Coast Guard detention and mistreatment of drug smugglers.  Now, the Canadian Broadcasting Company and the Investigative Fund have updated the story with new information about these continuing abuses, which also implicate Canadian authorities in international law violations.

  

Homelessness and the Special Rapporteaur's Report on Extreme Poverty in the US

Following up on reflections on the Philip Alston's Report on Extreme Poverty in the US, the National Law Center on Homelessness and Poverty issued this statement:

 

UN Expert’s Report on Poverty in America Highlights the Criminalization of Homelessness as Driven by

“Hatred for the Poor”

 

Law Center on Homelessness appreciates UN’s efforts to recognize growing problem of fining and arresting homeless persons

 (June 4, 2018—Washington, D.C.) Last Friday, the top United Nations expert on poverty and human rights Philip Alston issued his official report on his mission to the United States in December 2017. In a press release issued by Alston today, he stated, “Locking up the poor precisely because they are poor, greatly exaggerating the amount of fraud in the system, shaming those who need assistance, and devising ever more obstacles to prevent people from getting needed benefits, is not a strategy to reduce or eliminate poverty. It seems driven primarily by contempt, and sometimes even by hatred for the poor, along with a ‘winner takes all’ mentality.”

 “The Special Rapporteur’s report adds to a growing record of domestic and international law stating homeless persons cannot be criminalized for basic life-sustaining activities when communities provide no legal alternative,” said Maria Foscarinis, executive director of the National Law Center on Homelessness & Poverty, which submitted briefing materials and helped facilitate Alston’s visit. “Housing is a human right, and it is shameful that in a country as wealthy as ours so many people are going without a safe and decent place to live.”

 “This report is the latest in a series of condemnations of the criminalization and mistreatment of homeless persons in the U.S. by international experts,” said Eric Tars, senior attorney at the National Law Center on Homelessness & Poverty. “But despite mountains of data, court rulings, and federal funding incentives, criminalization continues to increase as visible homelessness increases. No one want to see our fellow citizens living on the streets, but when will our officials implement policies that will solve the problem, not make it worse?”

Alston, the UN Special Rapporteur on Extreme Poverty & Human Rights, visited the U.S. in December 2017 and was struck by the “particular callousness” of policies that criminalize homeless persons. Through the assistance of the National Law Center on Homelessness & Poverty, the Los Angeles Community Action Network, and the Western Regional Advocacy Project, Alston toured Los Angeles’ Skid Row, where he found that “approximately 1,800 homeless individuals had access to only nine public toilets. Los Angeles failed to meet even the minimum standards the UN High Commissioner for Refugees sets for refugee camps in the Syrian Arab Republic and other emergency situations.”

 The Rapporteur called for implementation of homeless bills of rights, including the Right To Rest Acts recently introduced in several state legislatures to prevent criminalization. The report states, “Homelessness on this scale is far from inevitable and reflects political choices to see the solution as law enforcement rather than adequate and accessible low-cost housing, medical treatment, psychological counseling and job training.”

 The National Law Center on Homelessness & Poverty’s report, Tent City USA: The Growth of America’s Homeless Encampments and How Communities are Responding, documents a massive growth of more than 1,300 percent in the number of homeless encampments reported by the media over the past ten years. Another Law Center report, Housing Not Handcuffs: Ending the Criminalization of Homelessness in U.S. Cities, cites an increase of 69 percent in laws banning camping in public, 31 percent growth of bans on sleeping in public, 88 percent growth in bans on loitering, and 143 percent on laws banning sleeping in vehicles. Enforcement of these laws costs communities millions in police and court time and incarceration, and puts criminal records, fines, and fees in the way of homeless persons finding housing or employment and being able to exit homelessness.

The UN Special Rapporteur’s Report is available here. The report will be officially presented to the Human Rights Council at their session later this month in Geneva, Switzerland.

 

Separating Children and Parents at the Border: The Human Impacts of American Exceptionalism

On June 5, the Office of the UN High Commissioner for Human  Rights released a statement condemning the U.S. policy of separating children from their families at the U.S. border.   According to the UN spokesperson,  "The use of immigration detention and family separation as a deterrent runs counter to human rights standards and principles. The child’s best interest should always come first, including over migration management objectives or other administrative concerns.  It is therefore of great concern that in the US migration control appears to have been prioritised over the effective care and protection of migrant children."  The UN statement also noted that the U.S. is the only country "in the world" that is not a party to the UN Children's Rights Convention, and urged the U.S. to ratify the Convention.

Nikki Haley, the U.S. Ambassador to the UN, quickly responded to the statement, arguing (1) that it was hypocritical for the UN to criticize the US when other members also engage in human rights abuses, and (2) that the US, as a sovereign nation, can act with impunity when it is protecting its borders.  Both of these arguments are flawed, failing to take into account the totality of actions of the UN and ignoring the ways in which international law has been incorporated domestically.  In short, the administration's position, articulated by Haley, takes exceptionalism to new heights and, in the process, sends the message that no one's human rights are safe here.

First, the idea that the UN has hypocritically singled out the US for human rights criticism is absurd.  In the same press statement that critiqued the US child separation policy, the High Commissioner addressed human rights violations in Egypt and Ethiopia.  The day before, the High Commissioner examined human rights abuses in China.  A day later, Bangladesh was the topic.  The many mechanisms of the UN ensure that all countries are exposed to constructive criticism (as well as, when warranted, praise) through the Universal Periodic Review process, and by review of treaty monitoring bodies or Special Procedures.  The assertion that the U.S. can never be criticized on human rights grounds because of the amount of foreign aid and financial support that it provides sounds a bit like some other positions taken by this Administration, i.e., if you're rich enough, you don't have to play by the rules.

Second, Haley's assertion that U.S. sovereignty excuses human rights violations is also misplaced.  The human rights at issue here are so basic and fundamental that they transcend particular documents -- and in fact, have even been accepted by several U.S. courts as customary international law.  The Universal Declaration of Human Rights, a product of Eleanor Roosevelt's leadership, states clearly that the "[t]he family is the natural and fundamental group unit of society and is entitled to protection by society and the State."  Further under Article 14 of the UDHR, "Everyone has the right to seek and to enjoy in other countries asylum from persecution."  Certainly, an assertion of sovereignty doesn't excuse human rights abuses against children without some showing of absolute necessity and imminent harm.  There is nothing like that here.  Instead, the Administration has approached the impacts on children almost casually, as John Kelly noted that the separated children might eventually be placed in foster care "or whatever."  In fact, the impacts on vulnerable children separated from their parents are long-lasting and profoundly negative.  How far would the Administration go to protect U.S. sovereignty under the circumstances we have here?  Would the Administration assert that it's acceptable to shoot the "trespassing" children of immigrants and asylees seeking entry at the border, in order to deter the migrating adults and to protect U.S. sovereignty?

Given Haley's defense of the Administration's policy of separating children from their families, we must all ask, has human rights lost all meaning to the U.S. government?   

The Edges of Despair- A Response to the Report of the UN Rapporteaur on Extreme Poverty

To me, the most disturbing sentence in the report of the Special Rapporteur on Extreme Poverty  in the US is that " the policies pursued over the past year seem deliberately designed to remove basic protections from the poorest, punish those who are not in employment and make even basic health care into a privilege to be earned rather than a right of citizenship."  

Current government policies promoting poverty and cruelty do not reflect political differences unless one characterizes those policies as arising out of the politics of hate.  "Conservative" and "liberal" are descriptions to be set aside.  Policies that deny not only health care but fundamentally healthy conditions are designed to punish and eliminate those whose circumstances lead them to poverty.  We are encountering the spiritually bankrupt.

My thought upon considering the deliberate actions of those who hate was how do we keep from circling the edges of despair?

I happened upon an interview that Oprah recently conducted with three celebrities on what gives them hope. While each of us must find our own route to spiritual survival, Stephen Colbert places his faith in biblical scriptures that warn against worry and urges staying in the present moment.  Jordan Peele reflects upon the restorative impact of laughter and shares that he finds hope in viewing the US as a work in progress.  And Salma Kayek Pinault finds hope in the women who are finding their voices.  She sees freedom for women and men who are open to the new Times Up conversations.

Whatever gives you hope, embrace it.  We are in a time where resistance is ever critical but without emotional and spiritual sustenance, hope cannot be sustained.

To read and listen to Oprah's interviews, click here.