Monday, December 31, 2018
As 2018 draws to a close, the Law Profs Human Rights at Home Blog is taking stock of the ups and downs of the past year. It's been a roller coaster ride that has made us appreciate all the more the anchor that human rights norms can provide when the very rule of law is under attack from the highest office in the nation.
Through every crazy twist and turn, we've continued to post five days a week with cutting-edge human rights developments and analysis, vital news about local, regional and national human rights events, expert recommendations for readings and teaching resources, and useful information on human rights developments and opportunities. And today, nearing the close of our 5th year in operation, the Human Rights at Home blog has had more than half a million page views, per our stat counter.
Thank you to all of our contributors and readers over the past year. The struggle continues, and we wish you renewed energy, good humor, and human rights gains for 2019! With your support, input, and readership, we will continue to do our part.
Happy New Year!
Sunday, December 30, 2018
In a wide-ranging interview published in the Digital Rights Monitor, David Kaye, the United Nations Special Rapporteur on the Promotion and Protection of the Right to Freedom of Expression and Opinion, identified Government disinformation as a special challenge. No surprise, Kaye -- an American national -- named names. According to Kaye, "[G]enerally, governments are real offenders when it comes to disinformation. You know, governments are putting out false information. I mean, in my own country, the United States, the worst perpetrator of false information is the President of the United States. So one thing is how do we deal with government 'fake news' — if you want to call it that, but propaganda is a better phrase for it."
Continuing, Kaye urged journalists to not let government disinformation slip by under the radar, while also acknowledging the threats that journalists can face for doing their jobs in such an environment. Said Kaye, "So on that front, I think journalists need to be covering it. And again that’s hard for people in societies where you face all sorts of threats. So that’s something: You need to do it; it’s time consuming; it takes away from other reporting you might do, and when you do it you can come under pressure from the government or other actors. So that’s one thing is that journalists can be doing some of this."
In August 2018, UN Special Rapporteur Kaye and Edison Lanza of the Inter-American Commission on Human Rights issued a joint statement pointedly calling on President Trump to curtail his own his administration's attacks on freedom of the press.
For a sobering round-up of attacks on journalists and press freedoms in 2018 -- including the fatal attack in the newsroom at the Capitol Gazette -- see the Year in Press Freedom in the Columbia Journalism Review. The report notes that journalists face many challenges unrelated to Trump, but at the same time, chronicles the uptick in federal leak investigations, subpoenas, and arrests of journalists while doing their jobs.
Thursday, December 27, 2018
Prof. Ho continues his discussion of Boy Erased.
For me, both the film and book versions of Boy Erased were timely because it made me ask whether we might now be more fully steeped in an age of assimilation. Some of those changing attitudes about sexual minorities during the 2000s resulted from successful gay rights campaigning that coincided with marriage equality litigation. In those campaigns, often the image projected was one that promoted shared similarities between the heterosexual mainstream and gays and lesbians that made apparent the discrimination underlying their exclusion from marriage. This got us to marriage equality. As a result, the option to assimilate became much more salient. The option presented itself as a possibility for sexual minorities to exist openly in society and be tolerated. Instead of conversion, sexual minorities could live explicitly with their sexual preferences and identities but also embody the norms and virtues of the mainstream. Once marriage equality was fully achieved, that choice to assimilate became more possible.
What does this mean for true equality? The focus on gay conversion in Boy Erased ought to also remind us of the choices that sexual minorities often face when trying to decide whether or not to live and express themselves authentically. If not persecution and violence, then perhaps conversion. If not conversion, then perhaps pretending or passing—which can mean staying the closet. If neither conversion nor passing, then perhaps assimilation. In his 2007 book on the subject of assimilation and its effects on civil rights, Kenji Yoshino does a better job than I do in explaining “covering,” which is a version of assimilation where individuals tone down their diversity in order to obtain a degree of tolerance and safety from the dominant society. It’s a strategy of negotiation that is based on expectations that the dominant society places on a perceived outsider both to fit into that society, but also behave in a way reflective of that society’s ideas about diverse individuals. Assimilation only gets us to the mainstream’s tolerance of diversity because it’s based on what degree of diversity and authenticity that the mainstream society can endure. It’s not about full acceptance or full authenticity of diverse individuals.
In 2018, the U.S. may not be a collective society where conversion is the most-discussed, most-endorsed way of dealing with sexual minorities who try to live openly. With marriage legally available in 2018, our options are now broader, but more respectable. We can only have gay families and marital troubles. The laws allow us too the possibility of having the 2.1 statistical children of traditional nuclear families. No more is the age of conversion upon us, we are now in an age of possible assimilation. This was what watching Boy Erased ultimately conjured for me.
Assimilation leads us to complacent second-class citizenry. It’s respectable and likeable but not equal. As the recent Masterpiece Cakeshop demonstrated, marriage equality has its limits. So does assimilation.
Boy Erased reminds us of where sexual minorities are in the struggle to live fully and authentically. It’s not a holiday film, for sure—but it’s a good one for reminding us what we might reach for in 2019. We may no longer be in a world where “curing” people of their “deviant sexuality” is a prevalent and acceptable consequence of coming out. However, what does it mean “to come out” if conversion and passing or more desultory forms of conformity have been replaced with assimilation? Will we ever be in an age of authenticity?
Wednesday, December 26, 2018
In recently reading Garrard Conley’s 2014 memoir, Boy Erased, and then watching the film adaptation by the same title currently in the theaters, what struck me as disturbing was the length to which the gay conversion therapy depicted in both book and film had promised to fundamentally cure a person’s same-sex sexual orientation by resorting to nothing but a pseudoscientific process—one akin to some sort of medieval torture for the mind and self. For those who haven’t read the memoir or seen the film, both book and film portray the experiences of a college-aged son of a Baptist preacher after, against his wishes, his secret gay identity is revealed.He is then coerced into conversion therapy.
In Boy Erased, the depiction of gay conversion therapy and its underlying tenets sticks to the traditional philosophy of such therapies—that same-gender preference is a pathology, a curable disease that was a result of some personal and/or familial moral failing. In essence, the assumption underscores that queerness is a manifestation of a moral failing and if those who are “afflicted” really put in the hard effort to work on eradicating their preferences, then they can be cured and rejoin society with good, meaningful straight lives.
Despite the huge process in LGBTQ rights in recent years, both the book and movie adaptation of Boy Erased are timely for two specific reasons that came to mind as I read the memoir and watched the film. First, the narrative of Boy Erased reminds us of a past age when gay conversion represented one of the negative and dangerous consequences when sexual minorities tried to live authentically in society. Set in 2004, the events of Boy Erased took place the same year same-sex marriage was first recognized in Massachusetts and right before the short period when some other states—particularly in state supreme courts, such as Iowa, Connecticut, and California—started recognizing marriage equality. As such, Boy Erased is a reminder of that era, where attitudes about homosexuality were shifting, but the subscription to the idea of being cured through gay conversion therapy was still strong. After all, the historical rejection of sexual minorities included consequences for sexual minorities of facing persecution and violence, converting themselves to heterosexuality, or pretending to be heterosexual. And attitudes about sexual minorities hadn’t shifted enough to reach the kind of recognition that brought about Windsor and Obergefell. Though contemporaneous with the Goodridge v. Department of Health , Boy Erased was set four-years before California’s Proposition 8's about-face and was during the time of Don’t Ask, Don’t Tell.
Currently in 2018, there are 14 states that have banned gay conversion therapy for minors (California, Connecticut, D.C., Delaware, Illinois, Maryland, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington). An overwhelming consensus exists in the medical community that gay conversion therapy——is harmful and should not be practiced. In this way, Boy Erased was timely because the narrative serves as a marker of where we have been in recent gay rights incrementalism. The year 2004 was in the age of conversion, but not yet in the age where we are now.
An overwhelming consensus exists in the medical community that gay conversion therapy is harmful and should not be practiced. In this way, Boy Erased was timely because the narrative serves as a marker of where we have been in recent gay rights incrementalism. The year 2004 was in the age of conversion, but not yet in the age where we are now.
In Part II, Prof. Ho will address the struggle for authenticity and the risks of assimilation.
Monday, December 24, 2018
For a second time, the Center for Reproductive Rights (represented by Gibson, Dunn & Crutcher) has filed a second Freedom of Information (FOIA) lawsuit against the Administration seeking records related to the Department's decision to delete the reproductive rights subsection from Department of State's (DOS) annual Country Reports on Human Rights Practices (HRRs). After several years of assessing countries' reproductive rights protections in the annual DOS reports, the 2017 reports eliminated the section on reproductive rights and instead reported on a narrow category titled "Coercion in Population Control."
The Center initially filed a FOIA request with the agency in June 2018 seeking records relating to the change in reporting. The agency acknowledged receipt of the request but then produced no response despite FOIA deadlines, prompting a lawsuit in September 2018. After seeking additional records through FOIA relating to the forthcoming 2018 reports, with no agency response, the Center filed its latest federal suit against DOS. A copy of the December 12, 2018 complaint is available here courtesy of the FOIA Project.
At the same time, some members of Congress are seeking a legislative fix to the State Department's action. Current law requires that the annual DOS reports be thorough, but a bill introduced in the House of Representatives on Human Rights Day, December 10, 2018, would specify that the DOS human rights reports must include reproductive rights. The bill, titled the Reproductive Rights are Human Rights Act, would mandate reporting on reproductive rights, a position that has been endorsed by over a hundred members of Congress. As stated by the bill's co-sponsor Katherine Clark (D-MA), “Documenting and reporting human rights violations is a major part of eradicating their existence. This bill would ensure that our State Department maintains its vital role as an international watchdog and protector of women’s rights no matter the ideology of our White House.”
Sunday, December 23, 2018
It isn't hard to do
Nothing to kill or die for
And no religion too
Imagine all the people living life in peace, you
I wonder if you can
No need for greed or hunger
A brotherhood of man
Imagine all the people sharing all the world, you
But I'm not the only one
I hope some day you'll join us
And the world will be as one
On December 5, Alejandra Pablos, an activist for Latina reproductive rights, testified before the Inter-American Commission for Human Rights at a hearing on the treatment of human rights defenders at the U.S. border. Pablos has been repeatedly targeted by ICE for her outspoken protests. As she told the Commission regarding her most recent arrest and detention:
“I was leading chants, I wasn’t even the leader of that demonstration. Nonetheless, I was singled out and detained by DHS police and was the only one arrested. When I asked the officer why, he told me: ‘You were the loudest and he knew arresting me would end the protest.’ It was clear that I was targeted. I was released, but the incident was flagged to ICE, and I was taken into custody at my next check in. I spent more than 43 days inside those cold walls, even though the charges were dropped.”
One week after her IACHR testimony, on December 12, 2018, a federal immigration judge denied Pablos' application for political asylum, stripped her of her green card and ordered her deported. Pablos, now 33, has lived in the U.S. since her infancy. A green card holder, Pablos was not an undocumented immigrant. Her offenses were a decade ago, when she was picked up for a series of DUI and drug related crimes. Pablos served two years in a detention center and says that her life has turned around. But on December 12, the federal judge asserted that she has not reformed, and ordered that she leave for Mexico. Pablos has thirty days to appeal, and is also seeking a pardon from the Governor of Arizona.
Pablos has vowed to keep fighting. An interview with the activist after the December 12 order is available here. More information on the pardon effort directed to the Arizona Governor is available here.
Wednesday, December 19, 2018
Much rejoicing is happening following the Senate passage of The First Step Act, which is likely to be passed by the House as well this week. The bill is being touted as a criminal justice reform act. Not only is there bi-partisan support for the bill, there is also support from diverse individuals and groups outside of Congress. The Koch Brothers and the ACLU. Wait - The Kochs and the ACLU? OK- the ACLU is predictable in that the organization is likely to support any bill that provides relief for a class of those incarcerated no matter how limited the group. But why would the Koch brothers support the bill? Simple answers: money for one. Also, the proposed relief will be applied primarily to whites. And passage of the bill will give the president favorable coverage of the new "policies" at a time when favorable headlines for the president are rare.
In a New Yorker article, counsel for Koch Brothers claimed that Koch Industries is much more sensitive to over-reaching prosecutors since the company was prosecuted in 2000 for hiding emissions of toxins at a Texas facility. That matter settled and there is a long time between 2000 and 2018 for a shift in their attitude on criminal justice "reform". A more likely draw for Koch support is the money to be made from the bill. Those same individuals who administer "private" prisons are looking for a slice of the pie for re-entry programs to be established under the bill. Private prisons are known for their poor quality food, the harsh policies toward prisoners and failure to administer necessary medicines, among other criticisms. These are not actors who entertain a human rights approach to "reform". In addition, some legislators attempted to include a term that would require prosecutors to prove intent for corporate crimes. To date those efforts have been resisted.
And who else benefits from the bill? Roughly 4,000 mostly white individuals. And they will be chosen by algorithm. The bill applies "reforms" to those inmates considered to be minimum security risks and those convicted of "non-violent" crimes. Roughly, only 20% of those who will benefit are of color. African Americans are far more likely to be considered higher security risks. African Americans are far more likely to be designated violent.
As noted in Intercept article, Natasha Leonard comments that The First Step Act functions as a compromise because it is not a challenge to the carceral state. Ms. Leonard notes that the only thing notable is its compromise. She notes that this compromise in effect was relinquishment of true change in how criminal justice is administered.
While the bill contains some positive terms, such as more judicial flexibility in sentencing, the bill is far from reformative. If only the commitment to more steps was from Congress. That is unlikely. Proponents are already touting the bill as "sweeping" when in fact the bill benefits only those who are low risk, typically white and a very small fraction of the total inmate population nationally. Congress' revisiting criminal justice "reform" anytime soon is unlikely.
Tuesday, December 18, 2018
The 170th Period of Sessions of the Inter-American Commission on Human Rights has concluded. Several hearings addressed issues relevant to the U.S., including a hearing on the migrant caravan at the U.S.-Mexico border, and a hearing on the treatment of human rights defenders at the U.S. border. A summary of the hearings is available here.
Of particular note is the statement that IACHR representatives made at the close of the hearing on human rights defenders, announcing a formal visit to the US -Mexico border in January 2019: "The IACHR expressed its deep concern over what it observed is the worst period in the history of the human rights of migrants, which is exacerbated by the persecution of those seeking to defend these. It also reported on the working visit planned for January 2019 to the southern US border and other relevant parts of the country to monitor the human rights situation of migrants, asylum seekers, and refugees."
The IACHR's oversight and active engagement with these issues is a welcome development. For ideas about how advocates can amplify the IACHR's efforts, and a toolkit to help, check out Lisa Reinsberg's excellent op ed in Just Security.
Monday, December 17, 2018
Looking for gifts for children? There are many age directed human rights books for kids. Several websites are particularly helpful.
The Institute for Humane Education recommends several books for children, from kindergarten to fifth grade. Among the recommended books are:
I Have the Right to Be a Child by Aurelia Fronty
2012. Grades K-3.
“I am a child with eyes, hands, a voice, a heart, and rights.” In simple text this book highlights some of the many rights represented in the United Nations Convention on the Rights of the Child, including the right to an education, to play, to clean air and water, and to be protected from harm.
The Stamp Collector by Jennifer Lanthier
2012. Grades 3-6.
Two boys in an unnamed country grow up far from each other, but as adults, their passions and lives bring them together: one as a prisoner whose words bring hope to many, but which have also sent him to prison – and to his death; the other a prison guard who is moved to help the prisoner by ensuring that his words live on.
Four Feet, Two Sandals by Karen Lynn Williams and Khadra Mohammed
2007. Grades 1-5.
When relief workers bring donated clothing to the refugee camp in Peshawar, Lina discovers a sandal just her size. But another girl, Feroza, has claimed the other. Eventually the girls work out a way to share the sandals, each wearing the sandals on alternate days, and their friendship grows. When Lina’s family is finally sent to America, Feroza gives her one of the sandals to keep—to always remember their friendship.
Then there is the children's version of the Declaration of Human Rights. And the Barefoot Mommy suggests 15 books on social justice and human rights that will prompt discussions with children on human rights topics. The ACLU has a wonderful list of human rights books for children and young adults. The books address a wide range of issues, including challenging rigid gender norms, homophobia and migration.
And for adults looking for a review human rights literature for children, and how children learn human rights, read Jonathan Todres co-authored book Human Rights in Children's Literature: Imagination and The Narrative of Law.
Sunday, December 16, 2018
The 70th anniversary of the Universal Declaration continues to dominate the media coverage of human rights this week. For a different take, check out the December 8 feature in the Guardian, which asked authors and thinkers such as Margaret Atwood, David Eggers, Reni Edo-Lodge, and others, to reimagine the UDHR for the 21st century. The right to live off-line, to redefine oneself, and to live free from blame are among the thought-provoking rights proposed in this short collection.
Thursday, December 13, 2018
After criticizing some of the formal government statements issued regarding human rights day earlier this week, its now time to give credit and kudos to the staff of the State Department's division of Democracy, Human Rights, and Labor for their video blog series on the provisions of the UDHR that are most meaningful to them!
The link to the series is available at the State Department blog, DIPNotes. Drawing on their own personal experiences -- for example, as a public defender prior to joining the State Department, or as a young student living in a foreign country -- staffers movingly describe why the provisions of the UDHR are important benchmarks in the world, and why they continue to believe in the power of human rights.
Wednesday, December 12, 2018
By: Francisco (“Fran”) Rivera Juaristi, Santa Clara School of Law
On November 20th, 2018, the Board of Supervisors of the County of Santa Clara approved a resolution designating December 10th as Human Rights Day and declaring the County as a “Human Rights County.” The resolution was drafted by the International Human Rights Clinic at Santa Clara Law, promoted by the county’s Human Relations Commission, and supported by the Human Rights Program at San Jose State University and other community members. A signed version of the resolution is not yet available electronically (although a clean version can be found under item 11 of these minutes), but the text of the resolution can be found below.
At a minimum, the resolution challenges and rejects the divisive narrative coming from the Trump administration. It presents a counter narrative that is rooted in the official recognition of the inherent dignity and equality of all human beings. It highlights the county’s role in welcoming immigrants, refugees, and people of diverse identities, abilities, religions, opinions, and status. It defines the role of government as a vehicle for the promotion and realization of the rights mentioned in the Universal Declaration of Human Rights.
The resolution’s importance lies not only in its substance, but also in its reach. Santa Clara is the 6th most populous county in the U.S., with a population of 1.8 million people. It is also home to some of the largest and most influential businesses in the world, including Apple, Google, eBay, and Yahoo!
This resolution is a next step in a broader strategy aimed at the recognition and implementation by local governments of internationally recognized human rights. In December of 2016, Mountain View passed a resolution to become a Human Rights City. It is now in the process of implementing a pilot program that seeks to apply a human rights lens to city projects. In December of 2017, the County of Santa Clara passed an ordinance aimed at implementing CEDAW locally. Consequently, the County created a CEDAW Task Force and, with the assistance of the International Human Rights Clinic at Santa Clara Law, the county is about to publish a report that addresses homelessness through a gender and human rights lens, and is in the process of implementing the report’s recommendations. On December 10th, 2018 the county celebrated Human Rights Day with a public panel discussion about human rights with the heads of the following five executive county offices: Immigrant Relations, LGBTQ Affairs, Labor Standards and Enforcement, Cultural Competency, and Women’s Policy. Students from Santa Clara Law and San Jose State also discussed their local human rights work.
Next on the agenda is the publication of a periodic joint report between the county and the community that will evaluate the county’s overall human rights work, including in the area of business and human rights.
We are lucky to have great political leadership at all levels of local government that is willing to push forward with this progressive agenda and seeks to solidify the application of a human rights framework throughout all government operations.
RESOLUTION OF THE BOARD OF SUPERVISORS OF THE COUNTY OF SANTA CLARA DESIGNATING DECEMBER 10TH AS HUMAN RIGHTS DAY AND DECLARING SANTA CLARA COUNTY AS A HUMAN RIGHTS COUNTY
WHEREAS, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world; and
WHEREAS, all human beings are entitled to rights and freedoms without distinction on any basis, including race, color, creed, sex, gender and gender identity, sexual orientation, abilities, socioeconomic status, marital or partnership status, immigration status, language, religion, political or other opinion, national or social origin, property, birth, or other status; and
WHEREAS, on December 10, 1948, the General Assembly of the United Nations approved the Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations to promote universal respect for and observance of human rights and fundamental freedoms; and
WHEREAS, the Declaration calls upon “every individual and every organ of society” to “strive by teaching and education to promote respect for these rights and freedoms and by progressive measures … to secure their universal and effective recognition and observance”; and
WHEREAS, the Declaration embodies the values that define us as a people, the ideals that challenge us to perfect our union, and the liberties that generations of Americans have fought to preserve at home and abroad; and
WHEREAS, as Eleanor Roosevelt said, universal human rights begin “in small places, close to home,” and “unless these rights have meaning there, they have little meaning anywhere. Without concerted action to uphold them close to home, we shall look in vain for progress in the larger world”; and
WHEREAS, the principles set forth in the Universal Declaration of Human Rights guide the spirit of our laws, practices, and policies carried out with and on behalf of the residents of Santa Clara County; and
WHEREAS, Santa Clara County can be a model for our country and for the world as a Human Rights County—a county where we welcome persons of all races and ethnicities, including persons who recently arrived or have lived in this country for generations; where refugees and their American-born children are welcome; where women can feel safe walking alone, where people feel comfortable practicing the religion of their choice; where transgender persons are made visible and respected, where LGBTQI residents can live openly and freely, where all residents are an equal part of our diverse tapestry, and where anyone who wishes to live in acceptance of others can find refuge; and
WHEREAS, the County of Santa Clara can be a leader among other counties in the promotion of human rights and human dignity, because it recognizes the fundamental principle that “[a]ll human beings are born free and equal in dignity and rights” and that “[t]hey are endowed with reason and conscience and should act towards one another in a spirit of brotherhood”; and
WHEREAS, the County of Santa Clara has made great efforts to implement human rights principles in the establishment of the Division of Equity and Social Justice housing, the Offices of Cultural Competency, Immigrant Relations, LGBTQ Affairs, and Women’s Policy; and
WHEREAS, the Human Relations Commission of the County of Santa Clara was established in 1972 based on the spirit of the Declaration to advise the Board of Supervisors on human rights issues in the county and to promote respect for diversity and inclusion of all people; and,
WHEREAS, Human Rights Day celebrates a milestone in our commitment to uphold the inherent dignity and worth of every person, honors the legacy of a historic document that helps ensure that its ideals endure for the generations to come, and reminds us of our roots as one human family, forever dedicated to upholding the central tenets of the Universal Declaration of Human Rights.
NOW, THEREFORE, BE IT RESOLVED, that the Board of Supervisors of the County of Santa Clara, State of California, hereby designates December 10, 2018, and December 10 of each succeeding year as Human Rights Day; and,
BE IT FURTHER RESOLVED, that the Board of Supervisors hereby declares this county a “Human Rights County” that explicitly embraces the principles of inclusion, respect, involvement, and the recognition of equality, freedom, and human dignity for all.
Tuesday, December 11, 2018
Human Rights Day, December 10, 2018, was marked by statements issued by President Trump and Secretary of State Mike Pompeo. Always symbolic, these annual proclamations seem even more meaningless than usual when the U.S. has withdrawn from the Paris Climate Accords, has withdrawn from the UN Human Rights Council, has used cruel family separation policies to deter asylum seekers, and is defending the use of tear gas against a motley group of refugees including women and children.
Both President Trump and Secretary Pompeo link human rights to economics, suggesting that the primary reason to observe human rights is because it will contribute to economic stability. Further, both of these statements equate human rights with civil and political rights, bounded by the terms of the U.S. Bill of Rights.
Compare these statements to the aspirational statement issued by the Canadian Prime Minister, Justin Trudeau, in which he praises the courage of human rights defenders worldwide, and observes that "At home, we are working hard to build a country where all Canadians are free and safe to be themselves, and can go as far as their dreams will take them. We continue to take concrete measures to fight racism and discrimination based on sexual orientation, gender identity, and gender expression. We will keep taking meaningful actions to advance reconciliation with Indigenous peoples, and continue to work hard to put an end to human trafficking."
The contrast between these approaches is clear. Even in commemorating Human Rights Day, the U.S. Administration is taking every opportunity to try to minimize the breadth and scope of human rights. During Human Rights Day and Week and beyond, we must resist this attempt to revise and rewrite human rights norms, and to celebrate the vibrant U.S. human rights movement that continues to speak truth to power at every turn.
Monday, December 10, 2018
For several decades now, states have used the suspension of driver and professional licenses of those who are not paying court ordered child support. The process is controversial. Suspension of a professional license might prompt a recalcitrant doctor or lawyer to pay up. But even in those cases it seems counterintuitive to withdraw a license that permits the responsible parent to earn money while seeking to enforce a child support order.
The practice crosses over to human rights violation, however, when the state suspends a driver's license from indigent people who have no way to find work without transportation. Deprivation of transportation results not only in loss of work, but lack of contact with family and friends, lack of access to educational and medical services, and daily routine disruption for those with few resources to find alternative transport.
Now a New Jersey court has found that the practice of suspending an indigent's driver's license with appointed counsel for a hearing on the suspension the process is not constitutional under New Jersey law. In Kavadas, et al v Martinez the court held that "a driver's license suspension is a consequence magnitude that triggers the right to counsel in criminal and municipal cases." The New Jersey Supreme Court previously held that fundamental fairness guarantees the right to counsel at proceedings in which substantial interests are at stake.
Editors' note: Thanks to John Pollock of the National Council for a Civil Right to Counsel for bringing our attention to this important case.
Sunday, December 9, 2018
Prof. Margaret Johnson brings us this piece written with her clinic students from University of Baltimore Law School who worked on the disturbing problem of women prisoners being denied basic menstruation provisions. The students conducted thorough research. If any reader would like a copy of the post with footnotes, please contact Margaret Drew, contact information below. Guest authors are Katherine Haladay, J.D. ‘19, Alexis Holiday, J.D. ‘19, Alexis Sisolak, J.D. ‘19, and Makeda Curbeam, J.D. ’19, student attorneys, and Margaret E. Johnson, Professor of Law and Director, Bronfein Family Law Clinic, University of Baltimore School of Law
Since 1978, the Maryland female prison population has increased by more than 300% - a trend that is not localized only to Maryland. In fact, women are the fastest growing segment within the prison population in the United States. Jails, prisons, and other facilities lack in their response to the needs of this changing population. In Maryland, we hear stories of women who desperately need menstrual products. Some women on the inside go as far as making tampons from toilet paper and the insides of panty liners or mattresses. Other women tear up bedsheets to use as pads or choose to decline family visits because they have bled through their uniforms due to a lack of and/or the poor quality of menstrual products. Unfortunately, for one woman, this makeshift product led to toxic shock syndrome and an emergency hysterectomy.
The Bronfein Family Law Clinic at the University of Baltimore School of Law represents clients and engages in community-based projects regarding legal family issues. The Clinic joined the Reproductive Justice Inside (RJI) Coalition, a Maryland-wide project to address the needs of incarcerated individuals seeking quality and timely sexual and reproductive healthcare.
As of February 2018, Maryland did not have a law requiring the provision of menstrual products to those who were incarcerated. As a result, residents of the prisons complained to RJI of product shortages and the prison itself requested that RJI donate products. Due to the need for products in Maryland’s prison and jails, legislators sponsored a bill in the Maryland General Assembly requiring the provision of menstrual products for persons who are incarcerated.
We and other clinic student attorneys jumped into action because the provision of menstrual products is a basic human right for those who menstruate. The student attorneys, in conjunction with RJI and past residents of Maryland prisons, provided both written and oral testimony to the Maryland General Assembly in February 2018 in support of the proposed bill.
In support of our testimony, we conducted a national survey of the fifty states’ and the District of Columbia’s laws regarding menstrual products for persons in correctional facilities. When we first conducted our study in February 2018, we found that only eighteen states had any provision identifying the issue of providing menstrual products to inmates. Of those eighteen states, eleven states required the facility to provide inmates with these products whereas the other seven states did not specify how inmates would access the products; of those eleven, only two specifically required that those products be provided at no cost. Of the eighteen states, nine states required the state to provide menstrual products only upon demand so they were not freely available. Two states provided unspecified access to menstrual products.
The bill unanimously passed the Maryland House and the Senate and on April 24, 2018, Governor Hogan signed the bill into law. As of October 1, 2018, Maryland correctional facilities are required legally to have a written policy and sufficient supply of free menstrual products.
With this new law, Maryland became a leader in the country with this initiative of making menstrual products available, at no cost, and with unfettered access. This fall, the Clinic student attorneys have filed multiple public information act requests with each Maryland county facility to obtain their policies to ensure compliance with this new law. We have also drafted a model policy to provide to the facilities should they need assistance.
As of November 2018, even more states - for a total of twenty - now require the provision of menstrual products to incarcerated persons and they offer even more access to the products than previously. Of those twenty-one states, fifteen states now require that inmates be provided with menstrual products. Seven states now provide menstrual products free of cost as opposed to two.
In the 2017-2018 legislative session on the federal level, The Dignity for Incarcerated Women Act (Senate Bill 1524) would have guaranteed menstrual products to all inmates, as well as other important rights to incarcerated persons, such as outlawing shackling of persons while giving birth. The proposed bill did not make it out of the Senate Judiciary Committee.
Like much legislation, there are areas to improve regarding Maryland’s menstrual products law. First, while the law is inclusive of transgender men and nonconforming persons who menstruate by calling the products “menstrual hygiene” products and not “feminine” products, it is not inclusive because it requires the provision of products only to female inmates. Therefore, this legislation does not provide access for transgender men or non-binary persons who menstruate. In this way, it differs from the pending federal law.
Second, the legislation does not address the quality of the products. Previously, inmates bled through pads that were previously provided because they were so thin. This could still be the case with the products provided under the new law as it does not specify the product quality. Overall, this legislation is hugely positive – it provides products, both pads and tampons, to incarcerated women. Before, inmates only received pads. The products are now provided free of charge. This is impactful because most women incarcerated have limited economic means and this legislation provides a little bit of dignity and safety to inmates.
Also, the institution must provide the products not only on demand but also provide them at intake and make them freely available. Giving free access to products also addresses the coercion that may exist if an incarcerated person needs to beg for a pad from a correctional officer. Further, the bill requires a policy for proper disposal of the products. This addresses the prior health issues of the lack of a proper way to throw away a used product.
Moreover, this legislation paved the way for other states to provide incarcerated persons with menstrual products – a basic human right for all.
Thursday, December 6, 2018
As we prepare for next semester, there are on-line resources that students new to the field can explore to learn the basics of human rights research.
The University of Michigan has "A Basic Approach to Human Rights Research" guide on it Human Rights Advocacy and the History of International Human Rights Standards webpage. A portion of the webpage states: Human rights organizations invented the genre of human rights research. It typically resembles evidence gathered for a legal argument rather than analysis in the tradition of social science. Human rights organizations do not seek to describe general social conditions; rather, the main objective of human rights reporting is to document patterns of human rights violations and expose the perpetrators, institutions and policies that facilitate abuse." Links take the reader to Recognizing Problems, Accountability for Abuse, Making Policy Decisions and other topics, including research methodology.
Georgetown Law Library has a Human Rights Law Research Guide. The guide is "designed to help researchers identify relevant secondary sources on human rights law and to quickly and efficiently locate the full texts of primary law materials, including treaties, country reports, and case law." The website notes that the resources pay special attention to the human rights of women on an international level.
Human Rights Watch addresses the organization's research. While the discussion is limited to their studies, students could learn much about human rights reading of the various research methodologies engaged by HRW research and their methodological challenges.
The United Nations provides links to human rights collections as well as links to their own sources. The webpage has links to Human Rights research centers, human rights institutions and general international legal resources. Links connect readers to specialized international legal sources and conventions and treaties.
Several other research guides exist, such as one designed by New York University.
We might consider a first assignment for students to conduct their own search for human rights research guides and explore specific methods of human rights research to discuss early in the semester.
Wednesday, December 5, 2018
Earlier this year, Cara McClellan wrote an opinion piece "The Deafening Silence Around Police Violence Against Black Women and Girls".
McClellan contrasts the publicity generated when two African-American men were arrested in a Philadelphia Starbucks when they were in the store to meet a friend. That viral video of the arrest was shown on the internet and national television. One consequence of the arrest was a one day shut down of all Starbucks stores to present a diversity training to Starbucks employees.
A week later, 25 year old African-American woman Chikesia Clemons questioned and Alabama Waffle House why she was being charged for plastic ware, a police officer told her that he would "break her arm", wrestled her to the ground and pulled her shirt so that her breasts were revealed. That video of her arrest was also circulated on the internet. McClellan wrote of the long history of state violence against women particularly police violence. Added to the violence against black women and girls is the added sexual abuse. Females who are arrested report clothing being torn from them such as happened to Ms. Clemons. McClellan wrote: "Black woman women bear a double burden- carrying the weight of a weaponized skin color and the invisibility of a silenced gender.
For those interested in exploring the topic further, Andrea J. Ritchie wrote about police violence against women and girls of color in her book Invisible No More.
Tuesday, December 4, 2018
In a publicly released letter, last week the Defenders in Development campaign called on the U.S. State and Treasury Departments to take steps to protect human rights defenders. According to the letter sent to Secretaries Pompeo and Mnuchin,
"As owners and shareholders of development banks, the US and other governments must do more to ensure that DFIs [development funding institutions] are fulfilling . . . human rights obligations and promoting sustainable development.While we welcome steps taken by the US to support HRD protection, we are concerned that the United States may actually be undermining these efforts through the actions of its bilateral development cooperation, multilateral banks, and other DFIs in which we participate. Given the alarming increase in attacks on defenders within development activities, we urge you to bring more attention to this issue and to the critical role of DFIs in the following ways:
Take urgent action toward enacting the reforms identified above and promoting an enabling environment for human rights and meaningful public participation in development processes;
Use the anniversary of these important human rights milestones to bring attention to the critical role that human rights defenders play in ensuring effective, equitable, and sustainable development; and
Make a public commitment to take all measures necessary to ensure that the US’ development policies, investments, cooperation, and other activities respect, protect, and fulfill human rights, prevent reprisals, and safeguard defenders.
To advance this commitment, the 20 signatory organizations below call upon the United States to lead by example making a commitment to ensure that US international development interventions respect human rights, promote an enabling environment for public participation in development decisions, and safeguard defenders. In particular, we call upon the Administration to include specific reference to protection for human rights defenders in the context of development interventions in a statement commemorating the December 2018 anniversaries of the Universal Declaration of Human Rights and the Declaration on Human Rights Defenders. We also request an opportunity to meet with your offices to discuss this issue and how the US can signal this critically important commitment."
Sunday, December 2, 2018
In what is a practice suspected to be widespread, men incarcerated at a Kansas prison were secretly recorded when speaking with their attorneys. The prison was the Leavenworth Detention Center, which is privately run. Defense attorneys uncovered the scheme and a court-appointed investigator was assigned.
The public defenders requested the release of 67 inmates whose attorney-client conversations are known to have been recorded and they plan to ask for the release of approximately 150 more.
As early as 2008, attorneys complained of recordings o their calls to incarcerated clients. Complaints were lodged in two counties in California where eavesdropping on calls between the incarcerated and their lawyers, as well as psychiatrists, clergy and doctors is a felony. Other states where recording complaints have been made include Florida, Michigan and Texas. This year an inmate of a Wisconsin prison filed suit because his calls with his attorney were recorded, to his detriment.
The jailers' defenses include the inability to terminate digital recordings. Some say that phone numbers from the lawyers directory are keyed into the system so that calls will not be recorded. But that system ignores cell phone and other numbers not found into the directory. Yet one company was found to record attorney-prisoner phone calls even when the lawyers' telephone numbers were in the system.
Prosecutors routinely listen to prisoner recordings searching for any illegal activity. But when listening to prisoner/lawyer conversations learn trial strategy and other privileged information that make a fair trial unlikely.