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.
Sunday, November 25, 2018
In October the UN Rapporteur on Adequate Housing visted New York to discuss her thematic report on Informal Settlements. Leilani Farha is the UN Rapporteur and her report covers a wide range of human rights approaches in addressing the many problems faced by those who live in informal settlements, which is the preferred term for what many refer to as slums.
The problems are complex and require not only thoughtful intervention but sensitivity to the needs and preferences of those living in informal settlements. For example, forced relocation is not endorsed but for those who wish to relocate, finding improved and adequate housing is essential.
The right to adequate housing is "increasingly viewed as a commodity. Housing is most importantly a human right. Under international law, to be adequately housed means having secure tenure - not having to worry about eviction or having your home or lands taken away. It means living somewhere that is in keeping with your culture, and having access to appropriate services, schools, and employment."
A right to tenancy and lack of formal eviction processes are concepts that can be difficult ones for many living in America. Our focus is on landlord property rights. Given the economic and human costs of eviction, the less formal route of discussion and negotiation may at some point become a preferable alternative.
In the meantime, the report comments on Farah's visiting housing in appalling conditions, while other parts of the municipality provides luxury housing. The gap between rich and poor is universal. As the report states, we must begin by refusing to accept the unacceptable.
Tuesday, November 20, 2018
Technology has its own biases.
US scholars are raising concerns regarding lack of cultural competency and other biases that are built into technological tools used to obtain information from those seeking to access public benefits. These concerns were recently reiterated by the UN Rapporteur for Extreme Policy who raised concerns about the UK's move to digitize the delivery of public services.
Philip Alston warned that "A major issue with the development of new technologies is lack of transparency. Evidence shows that the human rights of the poorest and most vulnerable are especially at risk in such contexts."
Digital tools used in the US as well as the UK do not account for those whose primary language is not English. Sherley Cruz, who studies the lack of cultural competency in most digital tools, notes that the tools do not account for those who have limited or no experience with digital tools let alone those who are illiterate or who do not understand any complexity in the wording used by the tool. And there is no transparency in how the tools are configured or how responses are assessed. Prof. Cruz' article is forthcoming in the University of Tennessee Law Review.
The Special Rapporteur's full statement may be viewed here.
Wednesday, November 7, 2018
Sexual abuse of those detained in ICE centers is no secret. Statistics show that there were 1448 complaints of sexual assault in just over five years with 237 assaults in 2017 alone. Some of the assaults were on children. Several employees have been arrested. This with only 40% of sexual assaults in detention centers being reported by administrators.
Yet in a civil suit filed on behalf of assault victims, ICE has raised the centuries old defense that the detainee, who was assaulted when detained with her three year old son, consented to the assault. In this context, however, consent (even if it did exist) is irrelevant because in the detention setting, any sexual contact between an employee ad a detainee is a criminal offense.
In E.D. v. Sharkey a detainee filed suit because she was assaulted while detained with her three year old son. Among the defendants are those employees who stood by while the assault occurred and failed to protect E.D. The institutional defendant claims that it should not be liable to the Plaintiff because they are a detention center and not a prison or jail and therefore should not be accountable under the Prison Rape Elimination Act.
The ACLU has filed an Amicus brief in support of E. D.
Monday, November 5, 2018
Children and teens in Oregon filed suit in federal court in Oregon asking the court to develop a national plan to eliminate the use of fossil fuels. The government, who had sought relief in asking the court to stop the case from going to trial. SCOTUS refused to block the suit from proceeding but in the meantime informed the government that they may receive relief from the 9th Circuit Court of Appeals.
The lawsuit, Juliana v. US, framed in human rights terminology, survived a Motion to Dismiss. In its ruling, the Court said “The debate about climate change and its impact has been before various political bodies for some time now. Plaintiffs give this debate justiciability by asserting harms that befall or will befall them personally and to a greater extent than older segments of society. It may be that eventually the alleged harms, assuming the correctness of plaintiffs' analysis of the impacts of global climate change, will befall all of us. But the intractability of the debates before Congress and state legislatures and the alleged valuing of short-term economic interest despite the cost to human life, necessitates a need for the courts to evaluate the constitutional parameters of the action or inaction taken by the government. This is especially true when such harms have an alleged disparate impact on a discrete class of society.”
According to Plaintiff's counsel, there is little discovery left to do and the case is ready to proceed with trial. The Plaintiffs will proceed on the Public Trust Doctrine. The Doctrine asserts that the government is a trustee of the natural resources that its residents depend on for life, liberty and the pursuit of happiness.
Wednesday, October 31, 2018
President Trump is sending troops to the US – Mexico border. The announcement attempts to resuscitate republican candidates, and stir up his base to vote. Trump once again is focusing on immigration and immigrants as the source of all troubles for the alienated (or alienating) voter.
Part of his plan is to send 5200 troops to the Mexican border. By current estimates that is two plus soldiers for each member of the immigrant “caravan”. And what are the troops to do? Simply stand in a line so that refugees cannot pass? Not assist as children become dehydrated? Watch the travelers starve? Are trained soldiers expected to use violence if any of the migrants attempt to breach the border? What is our action plan if that should happen?
If we had a President looking for solutions, not drama, why not send the troops to Honduras where they could restore safe living conditions and people would not need to leave their home country. But it is the drama our President seeks.
Then the President announced that he will eliminate birthright citizenship by executive order. Experts cite a long line of constitutional cases that prohibit such an action. But as we have learned, we can no longer rely upon traditional avenues to protect us from radicalism.
Monday, October 29, 2018
The killings at Tree of Life Synagogue on Squirrel Hill in Pittsburgh were so horrific that it is difficult to know where to begin. But not beginning at all would be the worst. For it is in our silence and inaction that disregard of human life thrives. Somehow all expressions of hatred get around to torture and killing of Jewish people. Here we are again.
We have read warnings that recent events and political speeches repeat the fascism of the 30's and 40's. What I would like to know from those making these observations is what should we be doing at this point in time? We protest, we rally, we write. But surely there must be more. Is there a more effective active resistance? When do we reach the tipping point? While still a minority, the neo-nazi bullies, behave like the majority when it comes to controlling us through terror. One obstacle is that those of us who do not advocate hate and brutality have little experience with effective response. November 6th might give us some hope. But will that be enough?
Those who suffered genocide may help us understand what effective resistance looks like. One member of Tree of Life Synagogue opined that this is not the time for silent support. This is the time for loud, unending opposition. Mass shootings have been normalized. Hate crimes must not be.
Sunday, October 28, 2018
On Monday October 29th at 6:30 p.m. City University of New York will host a discussion by women of color who are leading the effort to pass the Equal Rights Amendment.
Speakers are women of color in political life and include several state senators. The discussion will be moderated by Carol Robles-Roman, co-president and CEO of the ERA Coalition and the Fund for Women's Equity. For those who cannot attend the live event, the discussion will be live streamed. You are encourage to host a party to watch this event. Encourage your students to do the same. As the website states:
For more information on live streaming and registration, click here.
Thursday, October 25, 2018
Former Secretary of Health and Human Services Kathleen Sebelius warned in a recent Washington Post article that the administration is already seeking to restrict women's health care beyond what the Supreme Court has permitted under Hobby Lobby and administration efforts to eliminate protections for pre-existing conditions. Sebelius focused on pending regulations that would not only limit access to birth control but access to information on birth control.
Pending regulations would make access to contraceptive difficult for about 4 million low income women. The regulations would create a "gag" order on providers giving referrals for abortion services. We are familiar with these restrictions on overseas health who receive federal funds. Now the administration seeks to implement the same restrictions on US providers. The regulations would primarily impact lower income women who lack insurance. Money saved from funding reproductive health care and low-cost contraception will be used to fund notoriously unsuccessful abstinence promotion.
As Sebelius informs "The draft rules, issued in June, not only would block any federal funding for family planning clinics that also offer abortion services, such as Planned Parenthood, but also would eliminate the current requirements that all health clinics receiving federal family planning funds offer a broad range of approved family planning methods, including prescription contraception." All at a time when teen pregnancies have drastically declined.
The full article may be read here.
Monday, October 22, 2018
Sunday, October 21, 2018
Joining a minority of US jurisdictions, the Supreme Court of Washington ruled last week that sentencing of youthful offenders to life sentences without parole violates the US Constitution. 21 jurisdictions including states and the District of Columbia having ruled similarly and the present minority of states demanding that juveniles not have a minimum sentence of "life" look is growing.
The man in question murdered three members of his family when he was 15. The victims were his parents and 5 year old brother. He obtained his GED and took courses through a community college while incarcerated. But as a psychologist testified, the youthful brain fails to consider long term consequences of actions.
In 2012, the US Supreme Court ruled that sentencing juveniles to automatic life sentences was unconstitutional. The Washington State legislature then passed a statute allowing youthful offenders to have their sentencing reviewed, but provided that life in prison was still an option. That option is now struck by the Supreme Court.
This opinion moves human rights forward in Washington State and comes shortly after the state's Supreme Court determined the state's death penalty was unconstitutional.
Thursday, October 18, 2018
The Constitution's failure to acknowledge full voting rights in black men and all women, has had long lasting repercussions. The founders ignoring the fundamental rights of more than half of the population produced devastating results that extend into this decade. Active voter suppression efforts are taken to prevent people of color from voting. Threats of arrest for voter fraud, and other acts of intimidation are not only common but are effective. One of the most insidious deprivations of voting rights is denying the right to vote to those who are incarcerated for felonies and for newly returning citizens. Maine and Vermont do not deprive those convicted of felonies of the right to vote, even while incarcerated. This is not so in other states..
In 2016, Crystal Mason of Texas voted in the presidential election. She had no idea that she was not permitted to vote while on probation. And certainly no one from the state, including her probation officer, ever told her she could not vote while still doing community service. Ms. Mason, who is African-American, was recently sentenced to five years in prison. Being both female and a woman of color, Ms. Mason is just the sort of individual that the founders never intended to enfranchise. The resulting avoidance by the drafters connects to present voting disruptions in a direct line.
A majority of states permit returning citizens to vote. Before someone you know who was formerly incarcerated participates in voting, it would be helpful for them to check and learn who is permitted to vote and when voting may resume in the jurisdiction of residence. One helpful resource may be found here.
Monday, October 15, 2018
The President is making his move to quell opposition.
"A new proposal by the Trump administration would seriously limit the number of protests in Washington, D.C., and bar demonstrations outside parts of the White House and the National Mall altogether." So reports Newsweek. The National Park Service claims that it proposed the plan that would shut down protests on the north side of the White House, near Lafayette Park. Protesters have demonstrated in that area for 50 consecutive nights. In addition the plan would prohibit protests on the National Mall and would cap the number of protesters permitted to demonstrate. Portions of Pennsylvania Avenue would be shut down, as well.
Many other presidents have lived through continuous protests in the neighborhood. President Nixon was the target of anti-war protesters, as well as those seeking impeachment. On one early morning, President Nixon went to the Lincoln Memorial to engage those demonstrating. Protesters during the Vietnam War continued a steady chant of "Hey, Hey LBJ, how many kids did you kill today." The demonstrators were so persistent that often the Johnsons forewent plans for entertaining visitors because of the chanting outside.
This President has no tolerance for dissent. Despite protest being a long, embedded activity in our political culture, President Trump seeks to shut down peaceful protest. This move is one of the most threatening to democracy to date.
We should all be very worried.
Thursday, October 11, 2018
As reported by Amy Howe in Howe On The Court The Supreme Court declined to intervene in the case of Richard Brakebill v. Secretary of State of North Dakota which challenges North Dakota’s requirement that voters produce identification that includes their current residential address. Lawyers for those challenging the requirement argued that the requirement would prevent thousands of Native Americans from voting because they often do not have traditional addresses. In addition, Native Americans are disproportionately homeless. The law in question was put on hold by the Federal District Court hearing the matter when North Dakota was ordered to permit voters with identification showing a street or mailing address to exercise their franchise. But now the US Court of Appeals for the 6th Circuit put that order on hold. In declining to hear the case on whether to continue the lower court order, voters in the final election will be required to show identification with a current residential address.
Justice Ginsburg dissented with Justice Kagan joining her:
“ The risk of voter confusion appears severe here because the injunction against requiring residential-address identification was in force during the primary election and because the Secretary of State’s website announced for months the ID requirements as they existed under that injunction. Reasonable voters may well assume that the IDs allowing them to vote in the primary election would remain valid in the general election. If the Eighth Circuit’s stay is not vacated, the risk of disfranchisement is large.”
In the meantime, suit has been filed against Brian Kemp the Georgia Secretary of State alleging voter suppression in the hotly contested governor's race where Stacey Abrams seeks to become the first African American governor. The lawsuit claims that the Secretary of State is refusing to certify 40,000 new applications for voter enrollment. Mr. Kemp happens to be Ms. Abrams' opponent.
Saturday, October 6, 2018
After spending a depressing Saturday mourning our political process and anticipating the anti-female and anti-LGBTQ opinions that the confirmation of Brett Kavanaugh likely will bring, I am just beginning to recover. Having been a fully engaged, practicing lawyer during the Hill-Thomas hearing, I felt sucker punched. I realized that this time around I actually had some hope that the voices of women would be heard. That little part of me that thought this time around would be different was angry. Nothing had changed.
We have witnessed an absolute disregard for what is happening in the country. After all, the next presidential Supreme Court Nominee will be a conservative justice. What does the Senate think it had to lose by passing on Justice Kavanaugh. The objections to Kavanaugh center not only on the sexual assault allegations, but on his behavior at the Senate hearings when he disrespected women senators. The Senate's failure to acknowledge the concerns of millions of men and women resulted from the immovable belief by men in power that they are beyond questioning or examination. They don't care. At the Hill-Thomas hearing the women were silenced as in Kavanaugh, but the raw hatred of women was kept at bay.
But something else changed since Hill-Thomas.
While Senator Grassley may believe that the protests were helpful to the Republican Senators, he is wrong. The confirmation of Brett Kavanaugh has inspired younger women to vote and carry on. The confirmation of Brett Kavanaugh is a catalyst for women. I am particularly heartened by the young women who demonstrated. Watching women being arrested for protesting following the confirmation hearings is so hopeful. Many of the women and men who are demonstrating are in their twenties. Their energy and persistence is inspiring. And they vote.
Our new leaders have arrived.
Thursday, October 4, 2018
The first letter to be delivered to Senate Judiciary leadership signed by multiple law professors was one from professors who teach, write or work on the gender violence. Dated September 26, the letter addressed issues of integrity and temperament of the nominee. But notably the letter addressed the committee's engaging a female prosecutor to query Dr. Ford and the resulting effort to raise the standard of proof to "beyond a reasonable doubt." Use of the criminal standard in civil matters has plagued gender violence survivors for decades. Use of the higher standard inevitably leads to abuse claims not being substantiated by the legal system.
"We are additionally concerned about the selection of a prosecutor to question Dr. Ford. Questioning by a prosecutor fuels misguided ideas that the allegations raised should be proved “beyond a reasonable doubt.” That standard of proof has no place here, since the liberty and equitable issues at stake in criminal cases are not at issue. We would expect the Committee to conduct its own questioning, as it has done with other nominees and throughout this process. "
Then in a letter dated October 4th, over 2,400 US law professors opposed the confirmation of Judge Kavanaugh to the Supreme Court. The Guardian, the New York Times , Chris Hayes and other reporters and outlets have reported on the letters. The letter, as printed in the New York Times, brings together male and female professors who may otherwise disagree on Judge Kavanaugh's qualifications, but universally agree that Judge Kavanaugh's hostile and disrespectful behavior at last week's hearings revealed that Judge Kavanaugh does not have the temperament demanded of Supreme Court justices.
A separate letter was signed by over 900 female law professors and emphasized. “Judge Kavanaugh’s lack of respect for our democratic institutions, and for women in positions of power in particular, revealed that he does not have the requisite judicial temperament,” the letter states. The letter particularly notes Kavanaugh's behavior with female senators.
Unknown is the impact the letters will have on the Senate vote. But many of the signatories report experiencing communications from colleagues, former students, community members and others who are grateful that they signed on. These are amazing times and many are looking to lawyers for leadership. Congratulations to all signatories.
Tuesday, October 2, 2018
In a CNN opinion piece Prof. Judith Resnik traced the history of women's legal issues becoming a prominent factor in the history of Supreme Court nomination hearings. The 1970 nomination hearing of George Harold Carswell was the first time that legal issues of importance to women were part of the inquiry. Congresswoman Patsy Mink described Carswell of lacking any understanding of women's equality issues when he refused to review a case where a woman was denied a position because she had children, yet fathers were hired for that same position. Carswell was rejected as was Robert Bork, whose hearing was held in 1987. Judge Bork's opinion was that the equal protection clause did not protect women. He also referred to sexual harassment as "sexual escapades".
Prof. Resnik discusses the progressive influence of women's advocacy that led to the Clarence Thomas vote being delayed, a la Brett Kavanaugh. Prof. Resnik's piece affirms the direct line of women's advocacy from the 70's to the present that has forced the consideration of issues important to women as a factor in Supreme Court nominees' hearings. What remains to be seen with the Kavanaugh hearings is whether the vote will reflect the incremental progress of those advocating for women or whether we will observe a repeat of the Thomas hearings.
The full opinion piece may be read here.
Sunday, September 30, 2018
How many times does it take for one person to learn the lesson that the suspected crime is not what typically creates harm to the accused, particularly for the white and wealthy. The attempted coverup causes the harm. One would think that more than anyone, a judge would have learned this lesson through observation.
Judge Kavanaugh did not.
The testimony of Dr. Linda Blasey Ford may not be sufficient to derail Judge Kavanaugh’s confirmation to the US Supreme Court. Nor may the FBI investigation. But under any objective standard Judge Kavanaugh has undermined himself.
Even knowing that temperament is a critical factor in judicial appointments, Judge Kavanaugh could not maintain civility during last week’s hearings. He was particularly rude to his female interrogators, supporting theories that this is a man who does not respect women.
Claiming to be the victim, and creating the requisite tears is a technique often used by white men of privilege to divert attention from their own inappropriate behavior.
Chief Justice Roberts must be distraught.
In addition to disrespecting the Senators, Judge Kavanaugh disrespected the rule of law. Although, or perhaps because, he was under oath at last week’s hearing, the Judge refused to answer many questions, notably around his drinking. Throwing back to Senator Amy Klobuchar her question about whether he has suffered blackouts from drinking was an effort to chisel away at her dignity. Even beer consumption questions were scorned by the nominee, though the issue is central to other allegations. His defensiveness around drinking makes some wonder not only whether Judge Kavanaugh suffers from alcoholism, but whether we were witnessing the dis-temperament of one who needs alcohol to function and perhaps had not imbibed for a couple of days – just in case a senator inquired. Covering up his drinking was a mistake. There is a line of former classmates who will attest to the Judge’s frequent inebriation sometimes to the point of vomiting. This attempted cover up may be the Judge’s undoing.
Even worse would be the discovery that anger and disrespect is Judge Kavanaugh’s natural state, unrelated to any addiction. But whatever the source, we can only hope that Judge Kavanaugh seeks whatever help he needs to disengage from his self-righteousness and recover or discover a respectful, alcohol-free self. Maybe then he will understand the significance of the human rights focus on respect and dignity.
The bottom line is that Judge Kavanaugh revealed his anger, disrespect and incivility to the country. And he quite likely lied or misled the Senate Judiciary Committee. Judge Kavanaugh has neither the temperament nor the character to sit on our highest court. The ABA should use Judge Kavanaugh's wretched display of anger as grounds to change their ranking of Judge Kavanaugh to “unqualified”.
Wednesday, September 26, 2018
RFK Human Rights will celebrate its 2018 Human Rights Laureates at a December 12th New York Gala. The awardees are President Barack Obama, Discovery President and CEO David Zaslav, New Jersey Governor Phil Murphy, and Humana CEO Bruce D. Broussard. Laureates were selected for their exceptional work toward a more just and peaceful world.
Ethel Kennedy, widow of Robert and founder of RFK Human Rights, will present the awards. Robert Kennedy's daughter Kerry, who is President of RFK Human Rights, noted that "On the 50th anniversary of his historic campaign for the White House, we honor laureates who have sent forth countless ripples of hope to millions of people inspired by their example."
More information on the awardees and the event may be found here.
Monday, September 24, 2018
Identifying as resisters has some downsides. Michael Alexander has reframed the discussion to flip our view of what is being resisted and by whom.
Ms. Alexander challenges us to examine what it means to identify as a member of the Resistance. In her NYT op-ed, "We Are Not The Resistance" the author briefly examines the history of the #Resistance movement, noting that while some resistance falls along party lines, other concerns attract a crossover population. Ms. Alexander ponders whether calling those opposed to some of the actions of this administration "the resistance" results in lowered expectations of those who resist.
"Resistance is a reactive state of mind." Alexander notes. "While it can be necessary for survival and to prevent catastrophic harm, it can also tempt us to set our sights too low and to restrict our field of vision to the next election cycle, leading us to forget our ultimate purpose and place in history."
Indeed, when we resist are we asking for a return to the status quo prior to the offensive act? A return to the status quo satisfies very few. The status quo maintains power primarily in the wealthy and the white. Women, people of color and others who historically have been denied political and cultural power are unlikely to support a return to the status quo.
We are at a moment of revolutionary change. We are not the resisters. The President is the resister. We are seeing the last gasp of corrupt systems that empower white men and often only wealthy white white men. If we adopt Ms. Alexander's more optimistic view of our expectations and our place in historical change, we can release ourselves from the exhaustion of resistance and elevate our expectations to creative change toward justice. We free ourselves to disengage resistance and join the energy of revolution.
The op-ed is well-worth reading in full to expand our historical and sociological perspective of the current movements.