Sunday, March 20, 2016
Sometimes it takes a tragic and heartrending story of a single human being to move broad public policy. In the instance of the solitary confinement of youth, the catalyst was the case of Kalief Browder. An African-American 16-year-old, Browder was wrongly charged with theft of a backpack in May 2010 and held for three years at Rikers Island after a judge set his bail at $3,000, an amount the teenager’s family could not post.
Browder was then confined with hundreds of other 16- to 18-year-olds in a section of Rikers where brutal attacks by guards and fights among inmates were common. He was targeted by gangs, beaten by officers and told that if he reported the incidents to medical staff he would be sent to solitary confinement.
Meanwhile, Browder’s criminal charges were caught up in the extreme backlog of the Bronx court system. Because he repeatedly refused to plead guilty, his case was set for trial. Yet, delays caused by court congestion kept pushing back the trial date.
Not long after arriving at Rikers, Browder was placed in solitary for two weeks following a scuffle with an inmate. Six months later, another fight led to his second trip to solitary, where he remained for about 10 months. Even in isolation the threat of violence is a reality, however, and a tense exchange of words triggered an attack on Browder by a guard.
As the months turned into years, Browder became depressed and lost weight. After he tried to hang himself with a bed sheet, he was returned to solitary.
Browder’s case was ultimately dismissed in May 2013 after 31 court dates and three years at Rikers, the majority of which he spent in isolation. The alleged victim had left the U.S. and the prosecutor acknowledged that they were “unable to meet our burden of proof at trial.”
Although Browder made some strides after his release, including earning his GED, finding a part-time job and starting classes at Bronx Community College, the damage of incarceration and isolation had already been done. His mental health rapidly deteriorated, and on June 6, 2015, he committed suicide at his parents’ home in the Bronx. He was 22 years old.
In January, President Barack Obama invoked Kalief Browder, his time in isolation and his suicide in an op-ed in the Washington Post announcing a ban on the solitary confinement of juveniles in the federal prison system, among other critical reforms that would affect the 10,000 adult inmates serving time in isolation.
After relating the facts of Browder’s life, the president wrote, “How can we subject prisoners to unnecessary solitary confinement, knowing its effects, and then expect them to return to our communities as whole people? It doesn’t make us safer. It’s an affront to our common humanity.”
Although the Federal Bureau of Prisons is responsible for fewer than 100 juvenile inmates, with only a handful placed in “restrictive housing,” the president’s executive action reflects a broader recognition of the need to treat adolescents and young adults differently than adults based on their cognitive and psychological capacities. It also is likely to trigger reforms on the state level of solitary confinement policies for both youth and adult inmates, including those with mental illnesses. The U.S. Department of Justice has estimated that more than 57,000 juvenile offenders are incarcerated in jails and prisons across the U.S., with many held in solitary confinement.
At the vast majority of juvenile detention centers, often the only hope for young people held in prolonged isolation lies with lawyers or youth workers willing to expose the practice, report it to the appropriate parties and advocate for its ban.
Advocates working with incarcerated young people should regularly ask them about the conditions of confinement and specifically question them about isolation practices: whether solitary confinement is used, under what circumstances, its duration, whether there is any debriefing following its use and whether alternative strategies are ever utilized.
Unfortunately, Kalief Browder, like many low-income youth, did not receive rigorous legal representation. He was appointed a lawyer who never made the trip to Rikers to visit him and rarely, if ever, spoke with him between court dates.
Advocates working with incarcerated youth who suspect the excessive use of isolation should immediately bring the situation to a judge’s attention at a hearing reviewing the conditions of confinement. If these types of hearing are not mandated in the client’s jurisdiction, they should speak to a lawyer about filing a motion for review of the conditions of confinement. They should also speak with the administrator or the licensing or regulatory agency for the facility holding the juvenile.
Unfortunately, prisoners’ legal services have become increasingly limited as legal aid budgets are cut and offices are forced to discontinue these programs. Because of this gap, every correctional facility should have an inmate-grievance system with counselors who address both routine and emergency complaints. Every facility should also have the equivalent of an institutional ombudsperson available for adolescent inmates to raise claims or express concerns related to their conditions of confinement.
Kalief Browder’s short life continues to have meaning. As President Obama wrote in his Washington Post op-ed, “Today, [solitary confinement] is increasingly overused on people such as Kalief, with heartbreaking results — which is why my administration is taking steps to address this problem.”
Editors' Note: This essay was originally published by Youth Today.
Wednesday, March 16, 2016
Editors' Note: Following up on yesterday's post, Risa Kaufman discusses the applicable human rights law as well as the procedural posture of JEFM v. Lynch
A federal immigration judge may see no problem with requiring a three year old to represent herself against the government's efforts to deport her. But international human rights law and many jurisdictions in Europe and elsewhere in the world recognize the stark injustice in such a scenario. An amicus brief filed this week by Human Rights Watch in JEFM v. Lynch asks the 9th Circuit to do the same.
The plaintiff children in JEFM, many of whom are fleeing violence and other dangerous situations in their Central American home countries, have brought suit against the United States, claiming that the lack of a right to appointed counsel for indigent children in immigration proceedings violates the Constitution’s due process protections, as well as the federal Immigration and Nationality Act. Last year, ruling on jurisdictional grounds, the federal district court denied the government’s motion to dismiss the constitutional claims, and granted its motion to dismiss the statutory claims.
Both sides have appealed the district court’s order to the 9th Circuit Court of Appeals.
The Human Rights Watch brief draws on international human rights law and foreign law to underscore the importance of preserving the federal district court as a forum for the plaintiff children’s claims. The brief was authored by Columbia Law School’s Human Rights Institute and the law firm of Covington & Burling, LLP, with the assistance of students in the Columbia Law School Human Rights Clinic.
Numerous international human rights treaties recognize the necessity of appointed counsel for ensuring due process and equal justice for migrant children. The Convention on the Rights of the Child, the Convention Against Torture and other Cruel, Inhuman and Degrading Treatment and Punishment, the International Covenant on Civil and Political Rights, and the Convention on the Elimination of All Forms of Racial Discrimination all provide support for the right to appointed legal representation for indigent children in immigration proceedings. Inter-American Court of Human Rights has likewise made clear that the right to appointed counsel for children in immigration proceedings is a key component of due process under the American Convention and the American Declaration.
Human rights experts have expressed particular concern over the lack of a right to appointed counsel for children in U.S. immigration proceedings. In 2014, during its review of U.S. compliance with the CAT, the Committee Against Torture specifically recommended that the U.S. guarantee access to counsel for minors seeking asylum in the U.S. Likewise, the Committee on the Elimination of All Forms of Racial Discrimination recommended that the U.S. “guarantee access to legal representation in all immigration-related matters.” And last year, after visiting the U.S. southern border to monitor the human rights situation of unaccompanied minors and families, the Inter-American Commission on Human Rights called on the U.S. to provide free legal aid for children in immigration proceedings.
Foreign law also lends support for the right to appointed counsel for indigent children in immigration proceedings. The European Court of Human Rights has increasingly recognized the right to appointed counsel when necessary to prevent the inequality of arms. And the European Parliament recently called on member states to provide free legal representatives to unaccompanied minors in immigration proceedings.
Last year, over 28,000 unaccompanied children from El Salvador, Guatemala, and Honduras crossed into the United States at the southwest boarder. A study by the UN High Commissioner for Refugees found that many children migrating from these Central American countries reported that they were escaping violence and persecution and would face harm if forced to return home.
There is growing recognition of the injustice in forcing these children to fend for themselves in complicated and high-stakes immigration court proceedings. As articulated in the Human Rights Watch amicus brief filed this week, international human rights and foreign law lend strong support to this understanding, and compels a re-evaluation of access to justice in the United States.
Tuesday, March 1, 2016
Early childhood is widely recognized as a critical stage of development. Yet it’s also a stage during which children receive relatively little focus in the public domain. Most children’s early years are spent in the home, largely beyond the reach of law which historically has sought to retain a public/private divide. Yet waiting until children enter the public sphere (by starting school) before attending to children’s rights runs the risk of leaving millions of children at a disadvantage. This is not a call for government interference in the family, but rather a reminder of the state’s obligation to support children’s rights and well-being from birth. And advancing children’s rights means supporting parents and families, so they can provide for their children and ensure their children’s full development.
Supporting early childhood development means accounting for the interrelated and interdependent nature of rights. Not only does the realization of particular rights depend on the fulfillment of others—for example, children’s education rights depend, in part, on realization of their health rights—but the rights of certain individuals are tied to the rights of others. The rights of children and the rights of their parents are linked in this way. Many other governments have acknowledged the indivisible nature of rights and adopted holistic responses to the challenges facing families. Conditional cash transfer programs, which provide funding to families tied to conditions related to health and education, such as regular health care appointments for children and maintaining children’s enrollment in school, offer one example.
In many countries, conditional cash transfer program alleviate some of the financial pressure on low-income families to have their children work rather than attend school. By doing so, these programs help advance children’s health and education rights, while protecting kids from labor exploitation. At the same time, these payments can help bolster the family’s financial security, alleviating pressure on women in particular to pursue riskier employment, thereby supporting women’s labor rights. Brazil has arguably the most well-known program, Bolsa Família, which has provided assistance to millions of families. With women constituting over 90% of the beneficiaries, the program has also had a positive impact on children, “increas[ing] school attendance and grade progression.”
Holistic approaches to the rights of children and their families make sense. One bill recently introduced in Congress advances this approach. Earlier this month, Senator Bob Casey (D-PA), Rep, Joseph Crowley (D-NY) and Rep. Lois Frankel (D-FL) introduced the Child Care Access to Resources for Early-learning Act (Child C.A.R.E. Act) H.R. 4524/S. 2539. The legislation would help guarantee affordable, high-quality child care for working families earning up to 200 percent of the federal poverty level. Guaranteeing access to high-quality child care would simultaneously help advance children’s development while alleviating employment and other economic pressures on working parents.
With sixty-five percent of children under 6 years old living either in families with both parents working or with a single parent working, quality child care is critical both to children and their parents. This bill deserves support, as do other efforts to develop holistic programs that account for the rights of children and their families.
For more on the bill, click here.
Tuesday, January 5, 2016
Approximately one-quarter of the U.S. population is restricted from voting in elections, entering freely into contracts, and exercising control over important decisions about their own health. These denials would offend the sensibilities of almost anyone if the population in question were adults, but because they are children, little objection is voiced.
Of course, children are different. The developmental nature of childhood necessitates a more nuanced understanding of children’s rights, balancing protection and care with emerging autonomy. Thus, the liberal rights tradition built on the autonomous individual is at times an awkward fit for children’s rights, especially in the case of young children. However, the fact that children’s rights are different does not mean they are non-existent. Rights are inherent. And too many children in the U.S. experience poverty, homelessness, maltreatment, and exploitation. These rights violations demand a response.
While the United States famously continues to be the only country in the world that has not ratified the U.N. Convention on the Rights of the Child, a home-grown effort is underway: a push for a national children’s bill of rights. Last Fall, Representatives Karen Bass (D-CA), Judy Chu (D-CA) and Luis V. Gutiérrez (D-IL) a House Resolution calling for passage of a Children’s Bill of Rights. The Children’s Bill of Rights, which First Focus—a bipartisan organization that advocates on behalf of children and families—has championed, would establish that every child in the U.S. is entitled to measures that ensure their physical, social, and emotional well-being. It also would establish that children are entitled to an education that would enable them to reach their fullest potential and be prepared as adults to contribute to their families and communities.
The Children’s Bill of Rights would cement our commitment to ensure that children have what all (or nearly all) parents would wish for their children anyway: protection from harm, a relationship with caring parents, access to a safe, quality learning environment, and appropriate health care when needed. It deserves everyone’s support.
So with the New Year, perhaps our collective resolution should be to guarantee that no child is left behind—not in the political slogan-sense of the word, but rather undertaking a genuine commitment to reach every child and secure his or her rights. A national Children’s Bill of Rights would be a good start.
Wednesday, December 2, 2015
In mid-November, an 8-year-old boy in Birmingham, Alabama, was charged with the murder of a 1-year-old girl named Kelci Lewis. The authorities announced that late on October 10, the girl’s mother and a friend had left six children, none older than 8, at the home unsupervised. They believe that the boy had “recklessly” and “viciously” beaten the toddler when she would not stop crying. The case will be heard in Jefferson County Family Court and can result in a disposition that includes long-term court supervision of the boy and confinement in a secure facility until age 21. Katerra M. Lewis, Kelsi’s 26-year-old mother, has been charged with manslaughter.
In Alabama, there is no minimum age at which children may be prosecuted in juvenile court. Criminal cases can only be transferred from family court to adult criminal court when the defendant is at least 14 at the time the alleged offense occurred. Therefore, the options available to the district attorney’s office in this instance are to prosecute the boy in family court or not to charge him at all.
The jurisdictional limits in North Carolina, where I teach and practice, are similar: the minimum age for juvenile court prosecution is 6, and juveniles must be at least 13 to be eligible for transfer to criminal court.
What could possibly justify bringing a murder charge against an 8-year-old child, who in many states is presumed not to have capacity to form criminal intent or to understand court proceedings? Lara M. Alvis, a former juvenile court prosecutor from neighboring Shelby County, Alabama, has explained, “They either had to say ‘we’re not going to charge’ or ‘we are going to charge,’ and once they say they’re not, that’s going to be a huge problem, because then the child won’t get any services by the state.”
This notion that certain families must be directed into the juvenile justice system in order to “help” the youth and facilitate services, accountability, and discipline is a common misperception.
In 2013, U.S. courts with juvenile jurisdiction handled 1.1 million delinquency cases. Nearly 18% were dismissed at intake and an additional 27% were handled informally, with the juvenile agreeing to some type of voluntary sanction, such as community service or restitution. In 55%, authorities filed a petition and handled the case formally, as they are doing in Birmingham.
In North Carolina, the numbers of cases that were dismissed or handled informally in 2013 were even lower than the national average – only 38.5% of the 158, 973 juvenile court complaints received did not result in formal charges.
In other words, police officers, prosecutors, probation officers, and judges make decisions that cumulatively ensure that more than half of the children enter and remain in the juvenile court system, while the rest are diverted out of it or manage to avoid it altogether. Research shows that the race and ethnicity of the child partially explains this result, as the rate at which black youth in the U.S. were referred to juvenile courts for a delinquency offense in 2013 was more than twice the rate for white youth.
The role of the child’s socioeconomic status has received less attention, although jurisdictions that formally keep track of the income-level of a youth’s family have found that nearly 80% of those in juvenile court were on public assistance or had annual incomes of less than $30,000.
My own research has confirmed that the assumption that court involvement is the best way for poor children and their families to access needed services merely perpetuates a cycle of disadvantage, creating a permanent underclass and contributing to mass incarceration.
This concept, which I call needs-based delinquency, is rooted in the early history of the juvenile court when the focus was on the needs of destitute youth. The founders of the juvenile court were part of a nineteenth century movement that helped elevate the status of children from that of property to a dependent class in need of protection by the state.
In 1825, reformers established the New York House of Refuge, which provided food, shelter, and education to homeless and impoverished youth, many of whom were children of recent immigrants. They made few distinctions between children who were paupers and those who committed crimes and viewed poverty and crime to be virtually synonymous. As legal historian Sanford Fox wrote in 1970, “Unattended pauperism was thought to ripen into criminality, and uncontrolled criminality—particularly vagrancy, beggary and minor thefts—swelled the ranks of paupers who had to be supported in public institutions.” The reformers of this era conceived of both of these conditions in moral terms. Philanthropists as well as public officials believed that immorality caused poverty and that the poor, by virtue of their socioeconomic status, posed a threat to lawful society.
Needs-based delinquency continues to be perpetuated through the structure and culture of the modern juvenile court, beginning with the most common points of entry into delinquency court—the child welfare system, public schools, retail stores, and neighborhood police presence. In all of these forums, typical adolescent behavior of children from poor families is more likely to be criminalized and result in court referrals than misconduct by children from families of means.
The insidious phenomenon is further sustained via juvenile code provisions and court practices as well as the individual perceptions and biases of system actors. For instance, the legislation that governs juvenile court practice in each state commonly contains provisions that explicitly call for consideration of a child’s needs and the family’s socioeconomic status. Also, court policies give decision-makers wide discretion to consider these factors at critical stages of the case.
As a result, there are two explicit tracks that exist in the juvenile justice system: one for middle- and upper-class families who are able to secure private services for their children, such as mental health counseling and drug or alcohol treatment, and the other for low-income (often minority and single-parent) families who can most readily access these resources through a court order following a juvenile delinquency adjudication.
In this way, at each stage of the process, the court gives as much or more weight to the perceived “needs” of the child than to the strength of the evidence against her or to the propriety and rationality of pursuing a criminal prosecution, as in the case of a 8-year-old boy charged with murder.
This phenomenon is particularly troubling given research indicating that when children are processed through the juvenile court system and adjudicated delinquent, the impact is not benign—even when the disposition is arguably beneficial. Potential negative consequences of juvenile delinquency adjudications implicate such areas as housing, education, immigration, and employment as well as enhanced penalties for future offenses. Further, longitudinal studies show that children exposed to juvenile court reoffend at higher rates and are stigmatized in the process.
This concern over stigma draws on sociological literature on labeling theory, the concept that attaching a label to a behavior creates further “deviance.” Once the label of juvenile delinquent is formally imposed, it is readily accepted by both the child and the community, and the child is defined and perceived by others through the lens of this label. Community members, police officers, teachers, and potential employers then interact with and judge the child according to that description.
With the increasing awareness of the income gap and how it affects the most vulnerable among us—poor children and their families—we know that children who grow up in poverty are likely to remain poor. We know that language deficits exist in poorer homes and that gaps in school achievement between higher-income and lower-income students have become chasms. We know that poverty impacts the physical health of children—from obesity and diabetes to asthma and heart disease. We know that toxic stress can develop in young children, caused by exposed to stress hormones, such as cortisol and norepinephrine. We know that this level of stress may actually reset neurological and hormonal systems, permanently impacting children’s brains and even their genes.
We also know that when young people perceive court procedures to be unfair, they reoffend at higher rates. We know that detention, even for short periods of time, can be damaging to a child’s emotional well-being and that it exposes young people to the risk of assault. We know that reducing the rate of juvenile incarceration does not increase juvenile crime or violence. And we know that the number of cases that are referred to the juvenile court system approximates the same percentage of youth who have been found to grow out of delinquent behavior through typical adolescent development without any court intervention.
Yet, we continue to use the juvenile court system as the primary safety net for poor children and their families. We allow those children with the most needs—emotional, physical, and behavioral—to be fast-tracked through an indiscriminate intake system. We watch passively as they are saddled with the stigma of juvenile delinquency adjudications and are often warehoused for months or years in juvenile detention facilities.
The 8-year-old boy in Birmingham, Alabama, may sound familiar to you. He may remind you of a friend’s child or a young neighbor. He may even resemble your own son or your younger self. Imagine if he were from a family of means with two college-educated parents who were both gainfully employed. Imagine he had access to therapists and tutors. Picture him living in a well-tended home in a suburban neighborhood. Would this have made a difference to the Jefferson County district attorney’s office? To the Birmingham Police?
Adjudicating children delinquent by reason of poverty is a counterproductive approach. All of our children deserve better.
Thursday, November 19, 2015
November 20th is Universal Children's Day. The U.N. established Universal Children's Day in 1954 to create a day of “activity devoted to the promotion of the ideals and objectives of the [U.N.] Charter and the welfare of children of the world.” Worthwhile goals, but as there are now more than 125 international observance days, it is fair to ask whether Universal Children’s Day makes a difference.
Universal Children’s Day presents an opportunity to reflect on both progress made and work still to be done. Since the adoption of the U.N. Convention on the Rights of the Child—the most comprehensive treaty on children’s rights and well-being—on November 20, 1989, significant progress has been made on behalf of tens of millions of children around the world. Yet much more work remains. The data on infant and child mortality rates reflects this: globally, the number of deaths of children under five declined from 12.7 million in 1990 to less than 6 million in 2015. That’s vital progress, as many children now realize their most precious right—to life and survival. Yet more than five million young children still die each year, largely due to preventable causes.
But Universal Children’s Day can be much more than a day to raise awareness. It can be a day of action, a launching point for initiatives that accelerate progress on children’s rights and wellbeing. What might that look like? I have three suggestions.
First, if you are President of the United States, send the Convention on the Rights of the Child (CRC) to the Senate for its advice and consent. The CRC is the most widely accepted human rights treaty in history. There are 196 parties to the treaty; the U.S. is the only country that hasn’t ratified it. The CRC has helped foster progress on law, policy, and programs aimed at improving children’s well-being and securing children’s rights. The U.S. signed the treaty in 1995, but it has taken no action since then (ratification is necessary to make a treaty legally binding).
Under U.S. law, treaty ratification requires to the advice and consent of two-thirds of the Senate. Speculation about the level of support in the Senate is understandable, especially after the Senate failed in 2012 to achieve two-thirds support for the Convention on the Rights of Persons with Disabilities (it fell five votes short). But such questions are also premature. The future of the CRC in the United States lies entirely in President Obama’s hands, because the Administration hasn’t even sent the CRC to the Senate for its consideration. On Universal Children’s Day, the President can move the CRC forward by sending it to the Senate.
Second, if you are the CEO of a company, figure out how your company’s expertise or skill set can advance the rights and well-being of children. When the United Arab Emirates faced a problem with trafficking of young boys to serve as camel jockeys (the boys, many as young as five or six years old, were confined in unsanitary conditions, underfed, and often suffered serious injuries in races), it was a Swiss company that helped provide part of the solution. It invented a robot jockey, eliminating the demand for trafficked boys. Of course, technological advances can’t solve everything. Many young boys in Bangladesh, Pakistan, Sudan and Yemen who might have been trafficked to the UAE remain vulnerable to other harms. But the point is not that the private sector has to do everything. Rather, it’s that innovative solutions are needed, and the private sector can make a difference. UNICEF has been building innovative partnerships to improve health, education, and social protection. Companies across all sectors can support this and other similar work. So Universal Children’s Day is an ideal day for CEOs to figure out how their company’s skillset can advance child well-being.
Third, if you are the head of a household, talk about human rights with your children. Rights are inherent. That means children, like adults, possess them. They are not left to governments to decide whether to grant them to individuals at age eighteen. Parents and caregivers are trustees of those rights as children grow and develop. The CRC recognizes the critical role of parents and families in nineteen provisions of the treaty. Children confront rights issues early – in both their day-to-day lives and in the imaginative spaces created for children, such as their favorite books. Though children, especially young ones, might not talk about rights issues using human rights language, they understand rights issues. Parents and other caregivers can play a critical role in guiding and supporting children as they explore questions about their own rights and their responsibilities to respect the rights of others. Universal Children’s Day offers a wonderful opportunity to start to engage children in a dialogue about rights and to explore ways to make their communities more child rights supportive.
In short, whatever role you play in your family, community, or country, you can use your unique position, knowledge, or skills to advance the rights and well-being of children. By doing so, Universal Children’s Day can be the start of a more supportive approach to children’s rights and child well-being.
Thursday, November 5, 2015
Recently I sat in the main office of a racially-diverse middle school in Chapel Hill, North Carolina, waiting to speak with a guidance counselor. I arrived early in the morning, and the school resource office (SRO) assigned to the school from the local police department was one of the few people already there. He amiably interacted with staff, teachers, and students, and he gave me a big smile when he walked past. By all accounts, he couldn’t be a nicer guy. Yet, he is a white man in a uniform, armed with a gun, in a school populated by eleven, twelve and thirteen-year-olds. He can make arrests, and he can refer students for criminal prosecution in juvenile delinquency court. In fact, there are armed police officers who work as SROs in all the public middle and high schools in the district in which I live.
Last week I read about the assault of a 16-year-old African-American student named Shakara by SRO Ben Fields, a white man, at Spring Valley High School in Richland County, South Carolina. I read that Shakara was allegedly being “disruptive” by failing to put away her cell phone during math class and then refusing to leave the classroom because she felt the punishment was unfair. I read that SRO Fields is known as “Officer Slam” because of his brutal treatment of Spring Valley High students. I read that Shakara was charged criminally with the misdemeanor charge of “disturbing schools,” which carries a maximum of ninety days in jail and a $1000 fine. And I read that an 18-year-old classmate, Niya Kenny, was charged as an adult with the same offense for speaking up in support of Shakara during the assault.
There are at least seven other states with “disturbing schools” laws on the books. In North Carolina, for instance, the analogous criminal offense to the one facing Shakara and Niya Kenny is disorderly conduct by disrupting students (NCGS 14-288.4(a)(6)). Yet, the statutory language in North Carolina differs from that of its southern neighbor. Under the NC statute, the state must prove beyond a reasonable doubt that a person intentionally causes a public disturbance by disrupting, disturbing, or interfering with the teaching of students at an educational institution or by engaging in conduct that disturbs the peace, order, or discipline at an educational institution or on the adjacent grounds.
North Carolina cases in which the evidence was found to be insufficient to support an adjudication of juvenile delinquency for the offense include In re S.M., 190 NC App. 579 (2008), in which a female high school student laughed and ran away with a friend after an administrator asked her to stop in the school hallway; she was then chased by an SRO for 10-15 seconds before he arrested her. The NC Appeals Court found that this was an instance of “ordinary misbehavior or rule-breaking,” which did not rise to the level of criminal activity. In challenging these offenses in North Carolina courts, the defense typically focuses on the element that requires proof of intentional behavior that caused an actual public disturbance, which distinguishes ordinary misbehavior like that of Shakara’s from true instances of disturbing the peace within a school.
In contrast, the South Carolina “disturbing schools” statute is very broad, as it not only criminalizes the willful or unnecessary interference or disturbance of students or teachers but also criminalizes mere loitering on school premises and/or “act[ing] in an obnoxious manner thereon.” Candidly, I can think of dozens of examples of typical adolescent behavior on school grounds that could be deemed “obnoxious” and conceivably fall within the language of this statute. Yet, in 2006 when the statute was challenged as overbroad and vague in violation of the First Amendment, the South Carolina Supreme Court affirmedthe lower court’s decision that it was not unconstitutionally overbroad. The decision, however, was quite fact-intensive, involving a boy who had been yelling and cursing in a classroom for over two hours and then took a swing at his teacher as he was escorted down the hall, so there is likely room to bring another appeal based on different facts.
As for the cell phone video of the incident at Spring Valley High, I’ve seen similar videos in the course of representing hundreds of children charged with criminal offenses resulting from school-based “incidents” during my years teaching in the Youth Justice Clinic at UNC Law School. Even so, I wasn’t prepared for this one. The violent and vicious way in which SRO Fields slammed Shakara, still sitting in her desk, onto the classroom floor and then pulled her across the room before restraining her on the ground was horrifying. I’d be outraged to see an animal treated that way, let alone a teenager.
Yet, the SRO’s attack on Shakara is a quintessential example of the school-to-prison pipeline in action, as it illustrates perfectly what the statistics already tell us – that black students are suspended and expelled from schools three times more often than their white peers, and that for black girls, the rate is twice that amount. In fact, in South Carolina black students comprise 60% of those who are suspended from school but only 36% of the state’s student population. A federal civil rights investigation into the incident has been initiated by the Columbia FBI Field Office, the Civil Rights Division, and the U.S. Attorney’s Office for the District of South Carolina.
After more than a decade of juvenile justice advocacy, I’ve concluded that police officers have no legitimate role in our schools. The reality is that SROs are not found in most private, charter, or parochial schools, yet these educational settings manage to maintain safe learning environments for their students. SROs are not typically trained in adolescent development, in diffusing tense situations, in building rapport with students, in advising students, or in mediation, and if these are in fact the skills and qualities that are needed in a particular school setting, qualified school counselors should be hired rather than uniformed and armed police officers. Of course, if an urgent situation requires law enforcement, school administrators—like all citizens—can dial 911 or request assistance from the local police department.
Unfortunately, the school-to-prison pipeline is not unique to South Carolina or to North Carolina or to only a handful of states. There are more than 17,000 police officers assigned to schools across the United States. Data confirms that the presence of uniformed and armed law enforcement in schools has a criminogenic effect. In other words, placing armed police in schools actually increases the physical dangers to youth. Therefore, as long as SROs are in school buildings and classrooms, students—particularly youth of color—are as vulnerable as Shakara, not only to prosecution for typical adolescent misbehavior but to physical assault.
Tuesday, November 3, 2015
The U.S. government recently announced a consultation with civil society on November 12 in conjunction with its next periodic report under the Optional Protocols to the Convention on the Rights of the Child. The U.S. ratified the Optional Protocol to the CRC on the Sale of Children, Child Prostitution, and Child Pornography and the Optional Protocol to the CRC on the Involvement of Children in Armed Conflict in 2002 and is preparing to submit its third report to the UN Committee on the Rights of the Child. This is an important, if often undervalued, opportunity to advance the rights and well-being of children in the United States.
I have been privileged to participate in both prior reviews of the United States under the Optional Protocol on the Sale of Children, including presenting testimony to the U.N. Committee on the Rights of the Child during its session with NGOs in advance of its meeting with the government. Those experiences show that the reporting process offers three significant opportunities for human rights advocates. First, the Committee takes seriously the views of NGOs. Often the questions, or List of Issues, that the Committee poses to a government reflects gaps highlighted by NGOs in their alternative reports or in their testimony to the Committee. Second, many of the Concluding Observations and recommendations for the government come from NGO input. Finally, the post-review process offers a critical opportunity to use the recommendations in advocacy at home. In prior reviews under the Optional Protocol on the Sale of Children, ECPAT-USA has coordinated the lead alternative report (full disclosure: I serve as child rights advisor to ECPAT-USA). Following both prior reviews, NGOs organized briefing sessions in various cities in the United States. After 2008 review of the United States, several NGO representatives (including ECPAT-USA representatives and me) spoke at congressional briefings in the Senate and House of Representatives. Subsequent advocacy spurred the introduction of a bill that became the PROTECT Our Children Act of 2008. The law addressed some of the recommendations that emerged out of the reporting process (that process is described in more detail here). While that law isn’t perfect, it shows the potential that exists in the reporting process – the process can be successfully leveraged to advance human rights.
ECPAT-USA will again be coordinating the lead alternative report under the Optional Protocol on the Sale of Children. And again, there is an opportunity to further advance law and policy aimed at securing children’s rights and well-being.
Simply put, the reporting process is a built-in monitoring and evaluation mechanism for human rights. While the substantive provisions of human rights law are essential and provide the basis for our work, the procedural benefits of human rights treaties – notably the reporting process – should not be overlooked.
Wednesday, October 28, 2015
Friday, October 2, 2015
On October 1st, Somalia officially ratified the Convention on the Rights of the Child (CRC). Now every country in the world has ratified the CRC … except the United States. The United States had as much influence on the text of the CRC as any country – during the drafting of the treaty, the United States submitted proposals and revisions on 38 of the 40 substantive provisions of the treaty. Rights to freedom of speech and freedom of religion are included in the CRC because the U.S. government insisted on it. A review of all treaty provisions reveals that the CRC and U.S. law are largely compatible. Yet the United States remains the only country that resists the idea of accepting obligations to ensure the rights and well-being of every child subject to its jurisdiction.
Since the Convention on the Rights of Persons with Disabilities failed to achieve a two-thirds vote in the Senate in December 2012, the prospects of U.S. ratification of any human rights treaty haven’t seemed great. But progress on the CRC is entirely in the hands of the Obama Administration. The treaty has yet to be forwarded by the President to the Senate.
It’s time. While people might debate the negative consequences of reservations, understandings, and declarations (RUDs), the availability of RUDs negates any argument that issue X or issue Y is a barrier to ratification. The Obama Administration has an opportunity to move the CRC forward, and in doing so not only join the rest of the world but also show U.S. parents and children that the government cares about the rights and well-being of children.
Friday, August 14, 2015
Guest writer Irene Scharf writes on the Obama Administration's response to release of women and children from the immigrant detention centers:
The recent decision by U.S. District Judge Dolly Gee condemning the government’s mass incarceration of refugee families, specifically mothers and children seeking asylum in the U.S., reminds us that the Obama Administration continues to maintain ill-advised positions with regard to the treatment of immigrants in this country.
The Administration’s disappointing response to Judge Gee’s decision is to continue supporting the incarceration of refugee women and children who have fled violence and persecution in their home countries. The decision has been denounced by several organizations with expertise in this area, including the Center for Gender and Refugee Studies and the national American Immigration Law Association.
The Center for Gender and Refugee Studies (CGRS), which has called for an end to mass family incarceration, notes that the “ruling correctly found that incarcerating children with their mothers violates the Department of Homeland Security’s (DHS) obligations under the 1997 Flores v. Reno settlement agreement, which governs the custody and treatment of children by DHS. That agreement … requires release of children along with their mothers unless the families pose a flight risk or danger.” The decision enumerated some of the harms caused by confinement of children, including “‘long-lasting psychological, developmental, and physical harm” as well as impeded “access to legal representation, critical for asylum seekers navigating our complex system of immigration laws.”
The government’s insensitivity to the rights of immigrants, particularly children, is not new. In 1988, in an article I co-authored, What Process is Due? Unaccompanied Minors' Rights to Deportation Hearings, we examined the rights abuses to which unaccompanied immigrant children were subject by the legacy Immigration and Nationality Service. During that time, prior to the institution of protections, children entering without their parents were wrongfully pressured to waive their rights to deportation hearings, even when they had asylum claims. The administration's ongoing support for detention is reactionary by perpetuating the abuses the Flores settlement was intended to end.
A New York Times article on the subject notes that
“Judge Gee … found that migrant children had been held in ‘widespread deplorable conditions’ in Border Patrol stations after they were first caught, and she said the authorities had ‘wholly failed’ to provide the ‘safe and sanitary’ conditions required for children even in temporary cells.” (Julie Preston, July 26, 2015). The CGRS reminds us that “[t]he operation of inhumane family detention facilities violates the rights of refugee families and contravenes our cherished national commitments to liberty, due process, and justice.”
As of June 30, about 2,600 women and children were held in the three incarceration centers, according to government officials.
Tuesday, July 21, 2015
The killing of five - four marines and one Navy sailor- in Chattanooga was immediately classified as an act of terrorism for purposes of investigation.
The violence certainly was terrorism, but not of the sort government investigators had in mind. Domestic terrorism has long been a favored term of many who advocate against domestic violence. Terrorism was at the root source of the Chattanooga killings.
As described in court documents, Muhammad Youssef Abdulazeez, the shooter who also died, grew up in a home where his father severely abused the mother and abused the children as well. The children were abused directly and also by being in the home when their mother suffered horrific beatings and sexual assault.
CBS news on-line reported that Mr. Abdulazeez' mother filed for divorce in 2009. In court pleadings she stated that "there are five children in the family and her husband, Youssuf Saed Abdulazeez, had repeatedly beaten her, at times in front of them. " Rasmia said on one occasion, she was beaten so severely she fled their home and went to a crisis center. She requested a restraining order and custody of the youngest child. In the documents, Rasmia also stated that she was sexually assaulted by her husband while the children were in the home. The documents allege that, on occasion, Youssuf had also been abusive towards the children, striking and berating them without provocation or justification."
Eliminate violence in the home and the remaining terrorism may disappear.
Friday, July 3, 2015
Ohio v. Clark is a lesser reported, but as significant as any, case decided this Supreme Court term. This case raises concerns regarding an often unprotected class: children.
Three year old L.P.arrived at pre-school with bruises. When his teachers spoke with him, L.P.indicated that his mother’s boyfriend, Clark, hurt him. L.J.’s statements were admitted at trial and Clark was convicted. The fundamental issue before the Court was whether the child’s statements were properly admitted, particularly in light of Crawford v. Washington. In a 9-0 opinion, the Court held that the statements were properly admitted. In doing so, the Court relied on Crawford’s applicability only where statements are testimonial in nature and made for purposes of substituting for live witness testimony. The Crawford test presumes that the speaker is available for trial. “This Court’s decision in Crawford v. Washington, … held that the Confrontation Clause generally prohibits the introduction of 'testimonial' statements by a non-testifying witness, unless the witness is 'unavailable to testify, and the defendant had had a prior opportunity for cross-examination." A statement qualifies as testimonial if the "primary purpose" of the conversation was to “creat[e] an out-of-court substitute for trial testimony.”
L.P. was deemed unavailable for trial due to his young age. Neither the setting of the questioning nor the reason for the inquiry supported the responses as testimonial in nature. The use of L.P.’s statements at trial was not, then, in violation of the Sixth Amendment’s Confrontation Clause.
The opinion is important because it enhances the ability of the state to protect children through prosecution of their abusers.
However, what is significant for those who represent abused parents is the often judicially ignored connection between abuse of a woman’s children when the mother herself is abused. The Supreme Court implicitly noted the interconnectedness. Justice Alito’s opinion begins: “Darius Clark sent his girlfriend hundreds of miles away to engage in prostitution and agreed to care for her two young children while she was out of town.” L.P.’s bruises were discovered the very next day.
Forced prostitution is often a tool of intimate partner abuse. Experienced advocates have heard client disclosures of being forced into sex work by the current or former intimate partner. The culture may refer to men such as Clark as “pimp”, but to someone such as L.P.’s mother he is “boyfriend”.
To researchers, the child abuse was predictable. When a mother is abused, the chances that her children will be abused hovers around 50%. Some studies place the risk higher. How heartening it would be for the U.S. Supreme Court to explicitly acknowledge this connection, even in a footnote. Advocates for abused mothers would find their work in family court so much easier if only one SCOTUS case supported the empirical data that family courts so often ignore.
Wednesday, March 18, 2015
Last week, Juan E. Méndez, U.N. Special Rapporteur on torture and other cruel, inhuman and degrading treatment or punishment, released an important thematic report on children deprived of their liberty. The Special Rapporteur concludes in his report that children deprived of their liberty are at a heightened risk of torture and ill-treatment due to their unique vulnerability and needs. He finds that healthy development in children can be derailed by excessive or prolonged activation of stress response systems in the body, with damaging long-term effects on learning, behavior and health. Moreover, the report finds that detention of children is inextricably linked—in fact if not in law—with the ill-treatment of children, due to the particularly vulnerable situation in which they have been placed, exposing them to numerous types and situations of risk. The report also provides an overview of the international legal framework and standards protecting children deprived of their liberty from being subjected to torture and other ill-treatment.
Some of the Special Rapporteur’s key recommendations and conclusions in his report on children deprived of liberty include:
• Detention of children should be used only for the shortest possible period of time, only if it is in the best interest of the child, and limited to exceptional cases.
• States should adopt alternatives to detention for children whenever possible.
• Minimum age of criminal responsibility should be no lower than 12 years old.
• No life sentences without parole for children (and even lengthy sentences can be grossly disproportionate and amount to ill-treatment).
• No use of restraints for children deprived of their liberty under any circumstance.
• No solitary confinement for children deprived of their liberty.
• No death penalty for children deprived of their liberty.
• No corporal punishment for children deprived of their liberty.
• No immigration detention (detention of children based on migration status is never in the best interests of child, is grossly disproportionate, and constitutes ill-treatment).
• Special attention should be paid to children deprived of their liberty in health- and social-care institutions, including in private settings.
For U.S. juvenile justice and immigration advocates, these may seem like almost revolutionary recommendations—no immigration detention, no criminal responsibility for children 12 years old and lower, no restraints. The report also points out that the “United States of America is the only State in the world that still sentences children to life imprisonment without the opportunity for parole for the crime of homicide.” Yet, many of the conclusions in the report have already been covered by other international bodies and special rapporteurs. This is the first time these recommendations have been put forth in the anti-torture context, however, which makes this report distinctive and important. Unfortunately, the U.S. has so far ignored the Special Rapporteur’s report and recommendations, as was highlighted by the ACLU.
The Special Rapporteur on Torture’s team at the Anti-Torture Initiative (ATI) has released a brief video on the report, and initiated a #StopChildTorture social media campaign, including a Thunderclap (join the #StopChildTorture campaign here). The Special Rapporteur also continues to actively work with colleagues and States to figure out the best ways to support implementation of his conclusions and recommendations. His team welcomes suggestions and you can get in touch with the new ATI Assistant Project Director Andra Nicolescu at email@example.com.
Tuesday, January 13, 2015
Ms. Guffy writes:
The United States finds itself on the sidelines as the world celebrates the 25th anniversary of the Convention on the Rights of the Child (“CRC”). The U.S. is one of only three nations that hasn’t ratified the CRC. Opponents to the treaty claim that the U.S. doesn’t need to ratify the treaty because our laws sufficiently protect children. A recent review of the U.S. by the UN Committee Against Torture highlighting the treatment of children in adult jails and prisons, however, proves this assumption to be tragically inaccurate.
In November, the United States told the U.N. Committee Against Torture that 7,400 children under 18 are currently incarcerated in adult jails and prisons. As detailed in a report submitted to the Committee by the International Women’s Human Rights Clinic at CUNY Law School, children incarcerated in adult facilities experience multiple human rights violations. Among the most gut-wrenching consequences of locking children up in adult facilities are staggeringly high levels of physical and sexual abuse. In a survey conducted by IWHR and the Michigan ACLU, more than a third of children in Michigan prisons reported sexual assault by staff, other prisoners, or both. A recent DOJ report investigating conditions at New York’s Riker’s Island jail exposed systematic abuse and extremely high levels of staff violence against incarcerated 16-18 years olds. The report noted that correctional officials purposely beat youth "off camera" and that civilian teachers contribute to the culture of violence by “looking the other way” so as to not witness the violence they know is happening. Because youth are often smaller and more vulnerable and less likely to report abuse, they are at greater risk of being victims of violence in adult facilities.
In response, the Committee released recommendations that address the most egregious rights violations that occur when children are funneled into a system designed to punish adults. The Committee recommended that the U.S. end life without parole sentences and the use of solitary confinement for children, adopt standards prohibiting the use of tasers on children and separate children from adult prisoners.
The Committee also recommended that the U.S. implement international minimum standards for juvenile justice and the protection of juveniles deprived of liberty. These standards acknowledge that because of their age and vulnerability, children experience deprivation of liberty acutely. They emphasize that incarceration should be a last resort and that rehabilitative alternatives should be explored. When children are incarcerated they are entitled to special protection that includes an absolute prohibition of incarceration with adults but also requires that facilities and staff be appropriate for children. The standards also recognize that children are still growing and have an incredible capacity for change. They emphasize the need for educational and other programming as well as the need to help children maintain their contacts with their families and communities. Simply put the standards recognize that children are not adults and subjecting them to adult criminal punishment violates their rights.
Adopting the international standard minimum rules to safeguard children in conflict with the law would go a long way to end the most egregious abuses in the criminal justice system. But there are deeper issues at play when a nation’s treatment of its children becomes an issue addressed by the U.N. Committee Against Torture. If children’s rights were truly embraced by the U.S., children would not be funneled into adult penal systems in the first place where traumatizing acts of violence and deprivation occur. The treatment of children in conflict with the law in the U.S. reveals deep flaws in our understanding of children’s rights and the retroactive protections afforded by the Committee are insufficient to address the roots of this injustice.
The CRC, however, explicitly articulates that deprivation the liberty of a child should be the last resort and provides measures for protecting the rights of children in detention. The holistic and comprehensive approach to children’s rights embodied by the CRC would require the United States to deeply examine its treatment of children in a way that brings compassion and accountability to the conversation. It’s time for the United States to commit to building a brighter future for our children by ratifying the Convention on the Rights of the Child.
Thursday, January 1, 2015
By Margaret Drew
In 2014 we celebrated the success of several new human rights books this year, including the publication of Human Rights Advocacy in the United States by Martha Davis, Joanne Kalb and Risa Kaufman. Other exciting human rights books were published this year. One catagory not previously discussed on this blog are those books written for younger readers.
This year the Jane Addams Children's Book Awards were presented primarily to authors of books with human rights themes. One of the books designated an "honor book" is Razia's Ray of Hope by Elizabeth Sunaby, who based her story on Afghani girls' struggle to be educated. The storyline involves a young girl of Kabul who wants an education and her attempts to convince the men in her family to permit her to attend school. The author met Razia, a resident of the U.S., at a school fundraiser. As described on the book's website:
"The story’s protagonist goes to the Zabuli Education Center for girls outside of Kabul, started by Razia Jan. 'At a fundraiser for the school, I heard Razia Jan recount story after story of the challenges girls who want an education face,' explains author Elizabeth Suneby. 'I knew right then that I needed to share these stories with grown-ups and kids living in developed countries who, understandably, take education for granted.' "
The two books that received awards are Brave Girl: Clara and the Shirtwaist Makers' Strike of 1909 by Michelle Markel and Sugar by Jewell Parker Rhodes. Brave Girl is based on the true story of young Clara Lemlich who led the largest walkout of female women in the U.S.
Sugar is the story of a freed slave who remains on the plantation where she was enslaved. The story addresses the complications of the girl's relationship with the plantation owner's son as well as the difficulties that arise when Chinese workers are hired to work on the plantation.
Several other books are discussed on the School Library Journal website. I encourage you to take a look.
Thursday, May 22, 2014
Carrie Bettinger-Lopez sends this post written by student Kelsey Hayden. In this two part post, Ms. Hayden addresses Florida's shocking disregard of the human rights of juveniles in the criminal justice system.
Kelsey Hayden writes:
Juveniles accused of crimes in the United States are sometimes stripped of the protections that they should be afforded at a time when they are most vulnerable. Florida is perhaps one of the worst offenders when it comes to the deprivation of children’s rights in the criminal justice system. While most U.S. states permit the transfer of juveniles alleged to have committed certain crimes to adult criminal court for prosecution, Florida transfers more children under 18 to adult court than any other state. In Florida alone, more than 12,000 children were transferred to adult courts between 2008 and 2012. Florida is one of only 15 states to allow for prosecutorial discretion—and 1 of only 3 states to remove the possibility of any judicial review upon transfer—for all kids aged 14 and up who have been charged with certain enumerated crimes. Prosecutorial direct file removes all judicial discretion and is not in compliance with the corpus juris on children’s rights which provides that when alleged to have violated the penal law, a child has the right to have any potential measures reviewed by an impartial authority or judicial body. Following the March 2014 review of the United States’ compliance with the International Covenant on Civil and Political Rights (“ICCPR”), the United Nations Human Rights Committee (“UNHRC”) recommended that the U.S. ensure that juveniles are not transferred to adult courts.
In Florida, one particularly troubling consequence of such transfers to the adult system is that juveniles who have been charged as adults are automatically detained pre-trial in adult county jails. As a result of a federal and state mandate that juveniles be held out of the sight and sound of adults, juveniles in adult facilities are sometimes held in administrative solitary confinement where they can languish for months, or longer. In the recent review of the United States’ compliance with the ICCPR, the UNHRC also expressed concern about the continued practice of holding juveniles in prolonged solitary confinement, including during pre-trial detention, and recommended that the United States impose “strict limits on the use of solitary confinement, both pretrial and following conviction . . . and abolish the practice in respect of anyone under the age of 18.”The use of solitary confinement on juveniles is a particularly critical concern in light of the mental harm that isolation causes to children. Some of the mental health consequences in juveniles include self-harm, suicidal thoughts/attempts, and hallucinations.
Ms. Hayden continues her discussion of this disregard of the right so juveniles in tomorrow's post.
Thursday, April 24, 2014
Jonathan Todres writes about the the harsh impact of "Direct File" statutes and the continuing challenges of bringing the U.S. into line with international human rights law on treatment of juveniles.
In the past decade, hard work by advocates for children have resulted in three significant Supreme Court decisions on juvenile justice. In 2005, in Roper v. Simmons, the Supreme Court declared the death penalty to be “cruel and unusual” punishment as applied to juvenile offenders and thus unconstitutional. Advocates then focused on sentences of life without possibility of parole (LWOP). And in 2010, in Graham v. Florida, the Supreme Court held that it is unconstitutional to sentence juvenile offenders to life without parole for non-homicide defenses. Finally, in 2012, in Miller v Alabama, the Supreme Court extended its Graham ruling holding that all sentences of life without possibility of parole for juvenile offenders are unconstitutional. These Supreme Court decisions bring US law in line with international human rights law (notably the Convention on the Rights of the Child, or CRC) on two key juvenile justice issues.
However, as a new report reminds us, juvenile offenders still confront harsh treatment in many other ways in the criminal justice system. In Branded for Life: Florida’s Prosecution of Children as Adults under its "Direct File" Statute, Human Rights Watch reports that:
Florida transfers more children out of the juvenile system and into adult court than any other state. In the last five years alone, more than 12,000 juvenile crime suspects in Florida were transferred to the adult court system…. [D]ata show that more than 60 percent of the juveniles Florida transferred to adult court during this period were charged with nonviolent felonies. Only 2.7 percent were prosecuted for murder.….The new data show that nearly 98 percent of the juveniles in adult court in Florida end up there pursuant to the state’s “direct file” statute, which gives prosecutors unfettered discretion to move a wide range of juvenile cases to adult court (including any 16- and 17-year-old accused of a felony), with no involvement by a judge whatsoever.
Direct file statutes are just one means of diverting children into the adult system, an approach that is inconsistent with core principles of human rights law. Article 37 of the CRC mandates that: imprisonment of a child shall be used “for the shortest appropriate period of time” and that “[e]very child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age.”
Punishment for criminal actions is appropriate, but much more work remains to ensure that all state law treats each juvenile offender in a manner respects human dignity and is consistent with the age and maturity of that child.
As the late Nelson Mandela once said, “There can be no keener revelation of a society’s soul than the way in which it treats its children.” He did not say we are judged by how we treat only well-behaved children. It’s how we treat all children. Despite progress on significant juvenile justice issues in recent years, the latest evidence on direct file statutes reminds us that there is much more work to be done.
Monday, March 17, 2014
For those of us promoting a human rights perspective in United States cases involving domestic violence, we often revisit Jessica (Gonzales) Lenehan's cases against Castle Rock, Colorado and later against the United States. For those unfamiliar with the facts of the case, Jessica, a resident of Castle Rock, obtained a protection order restraining her husband from any contact with her. Jessica was awarded custody and the father had certain rights of visitation with the three young daughters. In violation of the visitation schedule and other terms of the protection order, Simon Gonzales removed the three girls from their yard and during the following early morning he drove into the police station parking lot and began shooting at the police. The police officers responded in kind. Simon was killed. Immediately after the exchange of gunfire, the Castle Rock police found the bodies of the three girls in the truck. Each was killed by gunshot.
During the ten or so hours that the children were missing, Jessica called the police numerous times. The police did not take any meaningful measures to find Simon and the girls. Jessica’s concerns were minimized. At one point she was told that the children were with their father and would be safe.
In re-reading the US Supreme Court decision, I was struck again with the odd language used in our US opinions when we discuss enforcement or entitlement to enforcement. The court found that Jessica did not have a “property” interest in the civil protection order issued by the state of Colorado. Because she lacked a property interest, Jessica had no right to expect enforcement despite the mandatory enforcement language of Colorado’s civil protection order statute.
Property in this context is anathema to a human rights perspective. Much of US legal culture revolves around the notion of “property." The protection of land and money is embedded in our legal system. In this instance, to reduce the concept of police protection where a valid court order has entered to a “property “ interest must seem odd to foreign observers. More accurate language is that the state made an agreement with Jessica. The agreement was made clear through the language of the enforcement statute. That agreement demands mandatory arrest when a violation of a protection order is known to the police. Even the language of a state "promise" on which the mother relied is more descriptive of the legal dilemma.
Keeping children and their mothers safe involves basic human rights. Protection by the state and enforcement of orders intended to keep the protected parties safe, are fundamental human rights. Women and children being viewed as “property” is a concept that US based domestic violence and child advocates have been confronting for well over a century and half. The very language of child “custody” connotes parental ownership rights.
It is difficult to eliminate the concept of ownership over women and children while our language continues to reflect jurisprudence based the “property“ interests of its citizens. The language of the Inter-American Human Rights Commission report in addressing the traumatic events suffered by Jessica is focused on her needs as a human being, particularly as a parent. By contrast the language of the Inter-American Commission shifts the legal language from one of abstract and artificial constructs of “property interests” to human rights' language of restoring dignity and addressing the anguish of a mother who daily endures unspeakable pain.