Friday, August 13, 2021
By Co-Editor Margaret Drew
The discovery of children's bodies on the grounds of Canadian and U.S. "Indian Schools" is bringing the beginnings of a reckoning of the cruelty inflicted upon native people by both governments. U.S. history disguised the deliberate ripping apart of Native families as an attempt to assimilate the children. The Europeans made no attempt to honor the culture of Native peoples nor "assimilate" into established the established cultures of the Americas upon contact. As with other actions taken against Native peoples, this particular cruelty was another effort to eliminate Native peoples and their heritage. Those who survived the "boarding schools" were highly traumatized. The schools were more like prisons. Children were sexually, emotionally, and physically abused. They lived in filthy conditions and were forced to accept the religion of their captors. Many died because of the abusive conditions, others died during escape attempts. Both day and boarding schools were in existence until the 1960s. During that decade the child welfare system continued the policy of separating Native children from their parents, this time by placing Native children in white foster homes, Canadian Native people refer to this practice as The Sixties Scoop.
Secretary of the Interior Deborah Haaland ordered an investigation into U.S. Indian schools. In a Washington Post Op-Ed she wrote: “Though it is uncomfortable to learn that the country you love is capable of committing such acts, the first step to justice is acknowledging these painful truths and gaining a full understanding of their impacts so that we can unravel the threads of trauma and injustice that linger.” Recently the Presidents of the American and Canadian Bar Associations called for full funding of the investigation. A resolution endorsing the same overwhelmingly recently passed the ABA House of Delegates.
Tuesday, August 3, 2021
by Co-Editor Margaret Drew
Stillwater, Matt Damon's latest movie, claims to be "loosely" based on Amanda Knox's "story". One reviewer noted:"The movie is loosely – very loosely – based – on the real-life, story of Amanda Knox, an American woman who since has been acquitted after she spent several years in an Italian prison when she was convicted of murdering her roommate." What's this about "since has been acquitted"? That phrase implies that since the movie was made there is an updated result. Ms. Knox was acquitted finally in 2015.
Ms. Knox was not the only one found guilty and then acquitted in the murder of Meredith Kercher. Raffale Sollecito, another roommate, was convicted and acquitted, as well. Yet who remembers the names of the co-defendant and the deceased? Amanda Knox was immediately tabloidized after the murder. She was a suspect, of course, by, a foreigner in Italy, and was subjected to all of the mental health accusations usually thrown at women without basis; she was sexualized and her account discounted. Women everywhere, particularly women defendants can identify with this treatment. Meanwhile not generally analyzed was the action of the police who failed to provide proper legal precautions and protections, and ignored the evidence that indicated that the sole perpetrator was Rudolf Guede, unknown to Knox, Mercher, or Sollecito.
The right to truth is much explored as a human right when the state causes harm. Unquestionably the Italian government and systems deeply harmed Ms. Knox and her family. Should those complicit in perpetuating the harm be held responsible, as well? This question can be explored in the context of those spreading Trump lies, particularly that he won the 2020 election. That harm began when Trump was president and part of the state.
We might consider expanding liability to those who perpetrate state harm through mistruths and ambiguities. Harm to reputation is difficult to undo, in part because the media is often unsupportive of truth when that truth is not scandalous or so noteworthy that it will draw viewers or readers. We are unwilling as a society to provide support to those whose reputations have unjustly suffered harm. Indeed, like the Stillwater writers, directors, and producers, should those perpetuating mistruths be responsible for human rights harms caused to others when the state originated the harm? The public has a right to the truth. The harm caused by Stop The Steal advocates, that compelled some individuals to act on lies initiated by the state, causes ongoing harm. Third-party non-state actors need to be held accountable when they are advancing or perpetuating harms caused by the state.
The reputational and privacy harm suffered by Ms. Knox is near-constant. US law deems her a public figure even though she did not seek the publicity that made her one. Consequently, she encounters a high standard in any defamation action. While Ms. Knox, a journalist, has not directly raised the human rights perspective on mitigating harm, she describes the ongoing harm she suffers in the Atlantic Magazine. Her narrative challenges us to consider whether this isn't the perfect time for us to consider expanding the conceptual liability for human rights abuses to those who knowingly extend harm originally caused by the state.
Tuesday, March 2, 2021
By Co-Editor, Prof. Margaret Drew
The US has returned to the UN Human Rights Council. US participation was withdrawn during the Trump administration and the Biden administration quickly reversed. The US should expect matters to be different. Until elections for the Council come around, the US will have observer status. Since the US last participated in the council, US human rights violations are even more exposed. #MeToo, Black Lives Matter, and Times Up contributed to worldwide criticism of the US from a human rights perspective.
The US will best approach their participation with a sense of humility, acknowledging US abuses while working to prevent future abuses in the US and the broader international community. No doubt the other nations will expect a less judgmental approach to Council business and some will relish in the US being called out on its human rights abuses. Indeed China will soon release a report on US Human Rights Abuses.
Another change in the council is the predominance of China and other nations known for human rights abuses. China's influence accounts for the lack of a UN resolution condemning arrests and other mistreatment of Hong Kong protesters. When those countries that are the most willing to use brutality and the least willing to acknowledge mistreatment of its people control Human Rights decision-making, one has to examine whether the Council has lost its authority and leadership in the world of global human rights advocacy. One writer proposes how the US might break China's deadlock on the council and possibly bring back credibility to the UN Human Rights Council.
Monday, February 22, 2021
Virginia became the first southern state to abolish the death penalty. The legislature has passed the bills abolishing the death penalty and the governor is expected to sign the bills. At one time, Virginia is was the most prolific state for implementing executions. Virginia has executed more people than any other jurisdiction.
Earlier this month, Virginia decriminalized HIV - previously the law criminalized having sex with another when one is living with HIV. The criminalization law required that the person living with HIV disclose their positive status to their sex partner, even if there is zero possibility of transmitting HIV. For those receiving treatment for their HIV, viral loads typically are undetectable. There is no possibility of transmitting HIV under those circumstances. For those states that retain HIV criminalization laws, disclosure of the condition is required whether or not transmission is possible. The bill maintains as a misdemeanor placing a sexual partner at risk of infection when a substantial likelihood of transmission exists. As one advocate said, “This bill ensures Virginia code reflects current scientific understanding of HIV and promotes public health by alleviating the stigma and mistrust of health institutions."
Fair play to Virginia for protecting human rights.
Wednesday, February 17, 2021
On February 11, 2021, the US Supreme Court let stand a ruling that stayed the execution of a man in prison in Alabama. William B. Smith III requested that his Christian Pastor be present at his execution. Mr. Smith's lawyers argued that their client needed his pastor present to provide him comfort “including by holding his hand, praying with him in his final moments and easing the transition between the worlds of the living and the dead.” Barrett, Breyer, Kagan, and Sotomayor voted to uphold the bar on Smith's execution. Justice Kagan wrote: "I concur in the Court’s decision to leave that order in place, and I write to explain why. Alabama has not carried its burden of showing that the exclusion of all clergy
members from the execution chamber is necessary to ensure prison security. So the State cannot now execute Smith without his pastor present..."
One year earlier the Court refused to stay another Alabama execution where a Muslim inmate requested the presence of his Imam at the execution. In that case, the Court lifted a stay of execution that the appeals court had entered saying that Mr. Ray, the individual awaiting execution, waited too long to make his request known. (But aren't many requests for Supreme Court stays brought in the last hours?) Justice Kagan dissented. "The clearest command of the Establishment Clause, this Court has held, is that one religious denomination cannot be officially preferred over another. Larson v. Valente, 456 U. S. 228, 244 (1982). But the State’s policy does just that. Under that policy, a Christian prisoner may have a minister of his own faith accompany him into the execution chamber to say his last rites. But if an inmate practices a different religion—whether Islam, Judaism, or any other—he may not die with a minister of his own faith by his side. That treatment goes against the Establishment Clause’s core principle of denominational neutrality."
Expecting rational thinking and attention to details in pre-planning one's own violent death is particularly harsh and unempathetic. A belated request for religious comfort is not unreasonable and should not be unexpected. The perspective on last-minute requests appears to change, however, when the clergy requested by the condemned is Christian. In such a case, the law reveals its more sympathetic side.
Wednesday, February 3, 2021
The Human Rights Watch Film Festival begins on Tuesday. Adapting to a digital format, the festival features a number of films centering on fundamental principles of human rights and the various contemporary needs of people around the globe. The festival will run through Monday.
As reported by KBPS, "The festival, returning to MOPA for its 11th year, will feature critically acclaimed films on topics including LGBTQ rights, immigrant rights, equal access to child care for working-class parents, freedom of speech, and systemic racism." Movies include a film on the need for overnight child care to assist parents working in our 24/7 culture. Another documents the attempts of a group in Sudan to being back open-air films following a ban on cinemas following a coup.
More information can be found here.
Tuesday, January 26, 2021
After years of demonstrations against gender-based violence. The state of emergency, which will be in effect until June 22, 2022, responds to demands from those who protested increasing and unchallenged gender violence. The demand for a state of emergency was voiced by demonstrators following a rash of killing many women including transgender women and other trans people. One human rights activist said that transgender people were being hunted. "At least 60 direct and indirect femicides were reported in Puerto Rico in 2020, according to the local group Gender Equality Observatory. "
The Governor of Puerto Rico said "Gender violence is a social evil, based on ignorance and attitudes that cannot have space or tolerance in the Puerto Rico that we aspire to. For too long vulnerable victims have suffered the consequences of systematic machismo, inequity, discrimination, lack of education, lack of guidance and above all lack of action."
On a day when President Biden withdrew the ban on military service for transgender people, we are reminded that gender violence is on the rise everywhere. The machismo culture that Governor Pierluisi recognized as the root of gender violence has yet to challenged publicly in the mainland U.S. This machismo culture was on display on January 6th but results in the terrorization primarily of women, LGBTQ+ people, and children.
May the courage of Governor Pierluisi inspire others in the country to declare their own states of emergency to end gender violence.
Wednesday, January 20, 2021
Monday, January 11, 2021
Consequences matter. President Trump has had no consequences for his despicable behavior over the past five years. When he bragged that he sexually assaulted women, he had no consequences. When Donald Trump mocked a disabled woman he had no consequences. When he endangered Hillary Clinton by encouraging his followers to "lock her up" no media came to her defense by commenting on the inappropriateness of inciting violence against her despite the lack of evidence.
The birther movement was a trial balloon for Trump. He needed to see how many people he could convince that Barack Obama was not born in the United States in order to know the level of manipulation needed to control a large segment of voters. No medial pointed out how these lies were the act of a dangerous man. Instead, every outrageous comment from Trump became media entertainment. No one said that these outrages were the acts of a dangerous man.
If Trump is not prosecuted there would have been no consequences for his dangerous acts, which now assumed the level of sedition. There is little justification for anyone saying they didn't know that Trump's acts would reach this level of danger. The time of denial and no consequences must end. The failure to impose consequences for actions leads to an escalation in the unwanted behavior. Ask any parent, But Donald Trump is not a child. He is a dangerous man.
We are in for a rough time ahead. There is more violence to come. These seditionists and brutes must experience consequences. They are well-organized haters. As time-consuming and risky as enforcement will be, it must happen. Appeasement does not work.
Sunday, January 10, 2021
On Friday morning, a Scottish friend informed me that President Trump had sought permission to fly to one of his golf holdings in Scotland on January 19th. Locals reported that for several days prior to the request they spotted a US plane flying over one of the properties, a process engaged before a presidential visit. As one Scottish publication wrote:
"Mr. Trump owns two golf courses in Scotland, and on Tuesday Nicola Sturgeon said the country’s travel ban will apply to Mr. Trump amid speculation he was planning an overseas golf trip during Joe Biden’s inauguration. On Thursday, Scotland’s First Minister said that the scenes in Washington – where the US President’s supporters attempted to prevent the formal approval of incoming President Joe Biden's election win – were 'shocking', but not 'surprising'. The permission to enter was denied under COVID restrictions, but there is also a provision in Scottish law that entry may be denied to anyone deemed a risk to the security of the country. No question that Trump would be banned under the latter if COVID was not rampant.
Nicola Sturgeon, First Minister of Scotland, said: “In some senses, Donald Trump’s presidency has been moving towards this moment almost from the moment it started, but that doesn’t make it any less shocking. " Few in the current administration and congress are willing to acknowledge what Ms. Sturgeon did, that the chaos was predictable from Mr. Trump's behavior from his behavior since Mr. Trump began his presidential race.
This request to leave the country remained largely unreported in the US until the last 24 hours. Granted the media had much to report on since Wednesday. What any prosecutor would read into this request to leave the country is a desire to leave US jurisdiction in order to avoid service of process or even arrest. It may be that the President's motivation was to put as much distance between himself and Mr. Biden's inauguration. But if we are to use the measurements as we do when Black defendants look to leave a jurisdiction, then prosecutors must assume that the attempt to leave reflects consciousness of guilt and take appropriate measures such as revoking Mr. Trump's passport at 12:01 PM, January 20th.
Thursday, January 7, 2021
The Trump administration has referred to the International Criminal Court as a kangaroo one. The administration, including Secretary of State Pompeo, claim that the International Criminal Court has impeded US sovereignty. "Trump had authorized economic and travel sanctions against employees of the Hague-based ICC and anyone supporting its work, including a probe into whether US forces committed war crimes in Afghanistan between 2003 and 2014." Among those considered as supporting the ICC are four professors.
On Monday, Judge Failla of the US District Court in Manhattan entered an injunction staying implementation of sanctions. "The court is mindful of the government's interest in defending its foreign policy prerogatives and maximizing the efficacy of its policy tools. Nevertheless, national-security concerns must not become a talisman used to ward off inconvenient claims." By entering the temporary injunction, the Court signaled that the administrations civil and criminal sanctions against the four professors is unlikely to stand.
Another correction to be made by the Biden administration. The clean up is endless.
Tuesday, December 29, 2020
The latest stimulus bill includes a provision restoring Pell Grant eligibility to those who are incarcerated. The Obama administration began a pilot program awarding Pell grants to 12,000 incarcerated individuals. The educational program was a success and its restoration for availability for all prisoners had bipartisan support. Even Betsey DeVos supported the bill. Education is a critical way for those who are incarcerated to obtain jobs upon their transition back into civil society. Access to Pell grants is important but is only one of the necessary steps to improving the lives of both the incarcerated and the formerly incarcerated.
Recently PBS aired a series of reports on the difficulties faced by formerly incarcerated people. Often those returning to civil society face substantial barriers to improving their lives. The barriers placed by our bureaucracies who impose unreasonable costs and other demands on the formerly incarcerated. These restrictions prevent these formerly incarcerated humans from achieving financial success and independence. These are only some of the obstacles and indignities formerly incarcerated people encounter. To read the stories of those interviewed for the PBS series, click here.
Tuesday, December 8, 2020
Dreamers have been specific pawns in the Administration's anti-immigrant efforts. The status of DACA youth has been a pawn since immigration "negotiations" began early in the Trump presidency. When Congress refused to cede to Trump's demands, then the administration took action to strip the Dreamers of protections afforded them by the prior administration. The Dreamers are US residents who came to the United States as children. To deport this population means sending these young people to a country of which they have no memory of the country where they were born, and in many cases do not speak the language.
Finally, on December 4, 2020, Brooklyn Federal Judge Nicholas Garaufis, ordered the government to immediately accept applications from Dreamers for work permits. This restores Obama Era protections. Let's hope that the Biden administration fast-tracks Dreamers' citizenship
Wednesday, December 2, 2020
The Trump Administration has stepped up its efforts to inflict as much inhumanity as possible before its demise. As of now, five people who ae incarcerated in the federal prison system are scheduled to be executed before January 20th.
The President removed the suspension of capital punishment that had been in place for well over a decade. The last prior federal execution was 17 years ago. Among those scheduled for execution is Lisa Montgomery. She would be the first woman executed by the federal government in 67 years. While Ms. Montgomery's crime was shocking, she committed the crime while suffering from PTSD from being sexually trafficked during her childhood. According to a Washington Post report on Ms. Montgomery " Cases in which women are sentenced to death often involve prosecutors portraying the defendant as straying from gender norms by, for example, being sexually deviant or an inattentive mother, Dunham said. He said many women who receive the death penalty were not in their right mind at the time of the crime."
Recently Ms. Montgomery's two lawyers became ill with COVID-19. A federal district court recently denied their quest for a delay in the scheduled December 8th execution. Ms. Montgomery is represented by clinicians and students of the Cornell International Human Rights Clinic. An appeals ordered a stay of execution until December 31st to provide Ms. Montgomery's lawyers an opportunity to recover and continue advocating for their client. The federal government promptly rescheduled the execution for January 12th. Wishing the clinic Godspeed in finding a way to extend the execution date for at least an additional nine days so the Biden administration may take action to prevent Ms. Montgomery's execution as well as other future executions.
You may sign a petition to assist Ms. Montgomery here.
Wednesday, November 25, 2020
I have begun wishing everyone a good long weekend. This year in particular it is difficult for me to say "Happy Thanksgiving". Living in a part of the country that claims to have had the first thanksgiving, i find it difficult to honor the tradition as promoted by whites. Recently I discovered that I am a direct descendant of Mayflower travelers and immediately recognized that this is not something to be proud of. I take marginal comfort in knowing that my ancestors were not Puritans and indeed one ancestor did not intend to stay when the journey began. One blessing of the pandemic was that activities planned to celebrate the 400th anniversary of the pilgrims' landing were canceled.
This year in particular has heightened our awareness of white disregard and devastation of other cultures. Native peoples have suffered longer than any other people in the country now known as the United States of America. Cultural and human genocide have been the favorite tools of powerful whites against Native peoples.
The concept of coming together for a shared meal where we express gratitude for our many blessings is a beautiful one. My hope is that those celebrating the day will devote significant time in reflection on the plight of our devastated First Nations and our obligations to apologize and make reparations. There are many tangible things whites can do immediately bring some relief to Native people, particularly during this time of COVID. See here for an article on the myths and facts of Thanksgiving.
Blessings on our readers and their loved ones.
Sunday, November 15, 2020
Many are using their time to contain irrational fears, dispel misconceptions stoked through the presidential campaign, and bridge the national political divide. Calming fears seems to be the most humane approach to problems in this unprecedented time. Then there is Justice Alito who has no inclination toward constraint. In a speech to attendees of the Federalist Society’s Virtual Convention, Justice Alito fueled conservative obsession with viewing themselves as constitutional victims. Many have reported on Justice Alito's remarks. As readers may be aware, Justice Alito proclaimed that first amendment rights of free exercise of religion and the second amendment right to bear arms are becoming "second class liberties". Most observers have focused on two aspectsof the speech. The first is that it is highly irregular for a sitting justice to discuss matters that are likely to be heard by the court. Also, does the substance of his speech raise the specter of recusal? Although recusal is unlikely in most Supreme Court cases (a la Cheney and Justice Scalia) Justice Alito's biases and prejudgment of issues parts ways with the usual discretion of members of the US Supreme Court.
Aside from the obvious, that Justice Alito is likely to be called to the principal's office this week, another aspect of this spectacle needs addressing. Justice Alito has done what so many Americans have done so well recently. He has made himself, and by extension Federalist Society members, victims of perceived grievances. Justice Alito is highly educated, is in a leadership role within our governmental systems, and presumably is aware of how to use words that can convey concerns without inciting alarm in the targeted audience. Justice Alito set his years of training aside and joined with people of privilege in sharing a view that their religious values and other liberties are under attack. Religious organizations have been unusually successful before the Supreme Court over the last decade. Beginning with Hobby Lobby, small businesses have obtained religious exemptions from providing birth control. Successive victories include Little Sisters of the Poor as well as the broad application of a "ministerial exception" granted to a religious school that engaged in what otherwise would be employment discrimination. Yet- those victories were ignored by the Justice, who instead chose to discuss a Nevada case that held that a regulation permitting casinos to operate during COVID-19 at 50% capacity while limiting church services to 50 people was not an unconstitutional restriction on practice of religion. While some might disagree with the decision, most accepted the restircitons as necessary under extraordinary circumstances. That is true, unless one views any case not finding on behalf of a religious institution as religious persecution. Justice Alito's behavior was not only inappropriate from a judicial perspective, it showed him to be an angry individual who sees himself as a victim despite his enormous privilege.
The perception of victimization has turned into a national pastime over the past two decades and it is beyond disheartening to hear a justice who should represent neutrality and fairness modeling self-centeredness and participating in rhetoric that could lead to even greater polarization. Perhaps there is a medical reason for Justice Alito's lack of decorum. Absent that, those appearing before the court whose views differ from Justice Alito's know what to expect.
Tuesday, November 10, 2020
November is Native American Heritage Month. This year readers may be prompted to explore the nature of US relations with Native Peoples from the time of first contact. Many good sources are available, including the The Native People's History of the United States. Black Lives Matters brought a reckoning of what is true, what is not, and what is omitted from the US historical narrative. This crucial examination is long overdue for Native Peoples. That Native Peoples have survived is due to their perseverance and resistance and not due to the acts of white people.
Colonization has had no greater impact in this country than on Native People. Annihilation has been a goal of many US presidents. While that goal has not been accomplished, US policies favor the continued poverty and marginalization of tribal members. The US long history of ignoring treaty provisions, and unilaterally ending agreements with tribes continues.
Reparations, including return of lands, must be considered as part of making right what centuries of violence against Native People has done to destroy Native autonomy and culture.
Wednesday, November 4, 2020
As of this writing, the election looks likely to go to VP Biden. Relief may be the major emotion. An extended exhale.
At the same time the election results are disturbing. A Biden presidency will stave off future harms from that the Trump administration would have brought and some of the damage done through executive orders by a simple act of reversal and repeal. That will go a long way toward preventing some of the environmental damage done over the last four years as well as restoring civil service protections and other arbitrary orders from 45.
But change might be limited. This was an amazing election for turnout. For once most citizens exercised their right to vote. But in many states the vote was close between the candidates. The nation proved its deep division.
The road ahead is bumpy. Racism will continue to divide us. Anti-immigrant sentiment is likely to linger if not accelerate in the short term. Violence may be in our near future with our current president declaring victory despite evidence to the contrary. His followers are told that the election was fraudulent.
None of this is news. Moving forward will be difficult. While President Trump may be defeated, Trumpism has not.
Monday, November 2, 2020
Clashes with angry people are expected to rise in the short term due to increased emotions around the Presidential election. Just in case Trump supporters attempting to drive the Biden Bus off the road is a portent, know that there is a hotline you can call. Organized and operated by Hofstra's Law Reform Clinic. The critical information for Voting Day and during the weeks to follow is that protestors, including those engaged in peaceful protests, will be referred to criminal and civil rigths lawyers for representation.
The clinic will serve legal observers, and military service members that might question the legitimacy of orders that cocerning responses to demonstrators.
The clinic opens November 2nd and depending upon need will run until March 1. 2021.
The website indicates that "Servicemembers, Conscientious Objectors, and Protesters can call the Hotline at 516-463-5935 between 6:00 PM and midnight Eastern Time any night of the week. All calls are strictly confidential."
Sunday, November 1, 2020
Turmoil is coming no matter the election's outcome. A Biden victory does not equate with a return to calm. We remain a divided nation and before the nation can move toward healing, there is trouble to pass through. The president is likely to declare victory before results are announced, and we have been forewarned that he will not leave easily. Many citizens, including many in government, do not believe in democracy. The angry Americans are not going silent. But the rest of us must.
This is the time to return to our spiritual cores. Calm, centering, and self-reflection will serve us. Our defenses against fear must be sharp. Experts tell us that the most effective path to the coming turbulence is non-violent demonstration. Sustaining non-violence demands a strong spiritual core. That is our essentialism for the coming times.