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Capital punishment: victims and their families deserve better

WDADP 2019 posterIn announcing the Justice Department’s decision to resume executions for people sentenced to death under federal law last Thursday, Attorney General William Barr said, “We owe it to the victims and their families to carry forward the sentence imposed by our justice system.”

Barr’s words reflect a common misunderstanding about justice and the interests of family members of people who have been killed in horrific crimes.

People often assume that after execution, family members will be able to “move on” or achieve some kind of “closure.” But not all family members share those sentiments. Research confirms that often after the execution family members realize that state-sanctioned killing did not bring them peace. In fact, prosecutors and officials like Barr who want to seem “tough on crime” too often use victims and their family members as pawns.

Tsarnaev jurors kept in the dark about family members’ wishes

One of the people most recently sentenced to death under federal law was Dzhokhar Tsarnaev, who was convicted of crimes related to the Boston Marathon bombing. Bill and Denise Richard, whose 8-year-old son Martin was one of three people killed near the finish line, had urged federal authorities not to pursue the death penalty for Tsarnaev:

We know that the government has its reasons for seeking the death penalty, but the continued pursuit of that punishment could bring years of appeals and prolong reliving the most painful day of our lives. We hope our two remaining children do not have to grow up with the lingering, painful reminder of what the defendant took from them, which years of appeals would undoubtedly bring.

For us, the story of Marathon Monday 2013 should not be defined by the actions or beliefs of the defendant, but by the resiliency of the human spirit and the rallying cries of this great city. We can never replace what was taken from us, but we can continue to get up every morning and fight another day. As long as the defendant is in the spotlight, we have no choice but to live a story told on his terms, not ours. The minute the defendant fades from our newspapers and TV screens is the minute we begin the process of rebuilding our lives and our family.

The sister of police officer Sean Collier, another person Tsarnaev and his brother killed, also spoke out against the death penalty, as did two people who lost limbs in the bombing.

Yet despite these sentiments, prosecutors kept the Tsarnaev jury in the dark. When Bill Richard delivered his victim impact statement to the jury, he was not allowed to disclose his opposition to the death penalty.

Prosecutors not only benefit from but also perpetuate the misplaced assumption that all family members of victims want the death penalty. At least one juror in the Tsarnaev trial, Kevan Fagan, said knowing the Richards’ views probably would have changed his vote at the sentencing phase.

Victims’ families are organizing against the death penalty

Victims’ family members like Bill and Denise Richard who oppose the death penalty are often marginalized and mistreated in the criminal justice system. Renny Cushing, who opposed the death penalty long before his father’s murder, recognized that the structures that are designed to benefit victims and survivors are often reserved for people who support capital punishment:

These hard-won benefits are too often unavailable to victims if they oppose the death penalty. Whether this is because victim’s advocacy offices operate under the auspices of the prosecutor or because an assumption exists among advocates that all family members of murder victims will want the perpetrator executed, the result is the same. Too often, family members who oppose the death penalty are silenced, marginalized, and abandoned, even by the people who are theoretically charged with helping them.

(Earlier this year Cushing, who now serves in the New Hampshire legislature, successfully pushed for that state’s repeal of the death penalty.)

Several organizations organized by and for the families of murder victims are speaking out against the death penalty. Murder Victims’ Families for Human Rights, an organization of victims’ family members who oppose the death penalty, has a mission to challenge the assumption that all families of murder victims support the death penalty. MVFHR plays an important role in educating the public and amplifying the voices of victims’ family members who oppose the death penalty, and its website includes a gallery of stories from victims’ family members who oppose the death penalty. Similarly, murder victim family members lead an organization called Journey of Hope . . . From Violence to Healing, a group that conducts public education speaking tours to address alternatives to the death penalty.  They testify side by side with family members of people on death row, family members of people who have been executed, and people who have been exonerated from death row.

Victims’ family members are better off without the death penalty

The President of Journey of Hope, Bill Pelke, co-founded the organization after four teenage girls murdered his grandmother. Pelke originally supported the death penalty for Paula Cooper, who was characterized as the girls’ ring-leader. But he “went through a spiritual transformation in 1986 after praying for love and compassion for Paula Cooper and her family.” He then championed an international crusade and ultimately helped get Cooper’s sentence commuted from death to sixty years in prison. In Pelke’s words, “The death penalty has absolutely nothing to do with healing. [It] just continues the cycle of violence and creates more murder victims family members. We become what we hate.  We become killers.” Research backs up his words.

Dr. Marilyn Armour at the University of Texas and Dr. Mark Umbreit at the University of Minnesota conducted research comparing outcomes for family members of murder victims in Minnesota (which does not have the death penalty) and Texas (which does). Their interviews with family members of murder victims demonstrated that the death penalty results in more negative outcomes:

Although the [death penalty] is promulgated as the ultimate justice, this Study found that the critical dynamic was the control survivors felt they had over the process of getting to the end. In Minnesota, survivors had greater control, likely because the appeals process was successful, predictable, and completed within two years after conviction; whereas, the finality of the appeals process in Texas was drawn out, elusive, delayed, and unpredictable. It generated layers of injustice, powerlessness, and in some instances, despair. Although the grief and sorrow remained high for Minnesotans, no longer having to deal with the murderer, his outcome, or the criminal justice system allowed survivors’ control and energy to be put into the present to be used for personal healing.

These conclusions echo and reinforce the reasons the Richards gave in asking that prosecutors not seek the death penalty for Tsarnaev.

A University of Minnesota study found that just 2.5% of family members reported achieving closure after the execution of the perpetrator, while 20.1% said the execution did not help them heal. Lula Redmond, a therapist who works with victims’ family members in Florida, observed: “More often than not, families of murder victims do not experience the relief they expected to feel at the execution. Taking a life doesn’t fill that void, but it’s generally not until after the execution that families realize this.”

Family members of murder victims deserve support and assistance.

As studies confirm, capital punishment is no panacea to “heal” family members of murder victims. Rather, true healing comes through support, assistance, and restorative justice. Instead of plowing scarce federal and state funds into costly death penalty cases, we would better spend our dollars on improving the scope and quality of victim services. Victoria Coward, whose son Tyler was murdered in 2007, remarked:

If we are serious about helping surviving victims — all of us — we need to see the bigger picture. The bigger picture is that the death penalty is given in fewer than 1 percent of cases, yet it sucks up millions and millions of dollars that could be put toward crime prevention or victims’ services. What I wouldn’t give for a tiny slice of those millions to give my grieving daughters some professional help to process the death of their brother.

Take action

On July 25, the same day as Barr’s announcement, Representative Ayanna Pressley introduced H.R. 4052, a bill to prohibit imposition of the death penalty for any violation of federal law. The bill currently has 12 cosponsors, including independent Rep. Justin Amash.

In introducing the bill, Rep. Pressley said, “It was wrong then and it’s wrong now and I am proud to introduce a bill that completely abolishes the use of capital punishment as a punitive measure. The cruelty is the point – this is by design.”

Encourage your Representative in Washington to cosponsor H.R. 4052 and contact your Senators and ask them to sponsor a companion bill in the Senate. If you live in a state that still has the death penalty, invite speakers from MVFHR, Journey of Hope, or Witness to Innocence to meet with your state elected officials.

The Advocates for Human Rights is proud to join with Journey of Hope, MVFHR, and Witness to Innocence as a member of the World Coalition Against the Death Penalty. Learn more about our work to abolish the death penalty here.

By Amy Bergquist. Amy is a Senior Staff Attorney with the International Justice Program at The Advocates for Human Rights and she currently serves as Vice President of the World Coalition Against the Death Penalty.

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Understanding the Expansion of Expedited Removal

statue 2 web largeThe long-expected announcement of the expansion of expedited removal authority throughout the United States, just a week after the administration rewrote the rules on establishing a credible fear of persecution or torture, is like a 1-2 punch for due process and the right to seek asylum.

Expedited removal, a product of the 1996 Illegal Immigration and Immigrant Responsibility Act, gives low-level immigration officials the power of judge, jury, and executioner of deportation orders. This is particularly disturbing given the record of misconduct and lack of accountability that permeates federal immigration enforcement. Expedited removal authorizes immigration officers to summarily arrest, detain, and deport people believed to be in violation of two provisions of immigration laws. The American Immigration Council has a good primer on expedited removal here.

These provisions – INA 212(a)(6)(C) and (a)(7) – render people “inadmissible” to the United States based on misrepresentation or failure to have required documents for entry.

No actual proof of these violations is needed. There’s no appeal. The penalty: a five-year bar to returning to the United States on a visa.

These provisions are slippery creatures. Here’s how these laws work in practice.

A political dissident escapes their country after spending weeks in jail for attending a political rally. They have a visitor visa to the United States, granted to them so they can travel to this country for a conference of democracy activists, so they buy a plane ticket and head for safety. When they finally arrive at the U.S. airport, exhausted from a long flight and worn out after weeks of imprisonment and torture, they present their lawfully obtained visa to the immigration official. But, when they tell the officer that they want asylum, they invalidate their visitor visa because they say they want asylum, not just to visit. They have violated INA 212(a)(6)(C). Immigration officials arrest, detain, and interrogate them. They sit for hours without food or access to a phone. An immigration agent with little training on the political situation unfolding in this far-flung nation has the power to return them on the spot. No judge. No lawyer. No hearing.

Years ago, one of our volunteer attorneys called for help finding out what had happened to friend’s mother. The elderly grandmother had come to the U.S. for her annual visit. Her flight arrived, but she never came out of immigration control. Days later the woman made contact with her frantic children. She had been deported under the expedited removal laws. Apparently immigration officials saw other travelers with a similar last name on the flight who did not have visas. They accused her of being in cahoots with them. Eventually, after spending the night in an interrogation room at the airport, she was sent home with an expedited removal order. Five years of missed school plays and family celebrations were the result.

For years this extraordinary authority was limited to people arriving at airports and sea ports. Then the power expanded to people found within 100 miles of a U.S. border who couldn’t prove they had been in the country at least 14 days. (For my Minnesota friends, that meant that a visit to the North Shore could result in being pulled over, questioned by Border Patrol, and followed to your campsite – at least if you don’t “look Minnesotan” – as we documented in our 2014 report on immigration in Minnesota).

Now the Department of Homeland Security has expanded this sweeping power with plans to apply it to anyone, anywhere in the United States who cannot prove they have been here at least two years. Having lawful immigration status – or even being a U.S. citizen – is no guarantee that you won’t be questioned about your status or your documents. According to an NPR report, hundreds of U.S. citizens each year face detention and deportation. (And, let’s not forget, the United States has engaged in mass deportation of U.S. citizens to Mexico during the Depression, when “up to 1.8 million people of Mexican descent – most of them American-born – were rounded up in informal raids and deported in an effort to reserve jobs for white people.”)

The law treats people at the border differently. And bit by bit the “border” has expanded so that race-based traffic stops, document checks on trains and buses travelling in the northern part of the country, and roadblock checkpoints throughout the southwest all have become routine.

But the immigration law cannot override foundational constitutional protections against arbitrary arrest, incommunicado detention, disappearance, and torture.

So what should people do?

#1 Know your rights. Throughout the past weeks, as threatened ICE raids put communities on high alert, we saw examples of how making ICE play by the rules works to protect people. If you want a good overview of the constitutional limits on search and seizure, check out ICE’s own training on the Fourth Amendment. (Thanks Mijente and Detention Watch Network for forcing ICE to turn over it’s 2017 Operation Mega documents).

You have the right to remain silent. Immigration officials like to rely on people’s admissions of unlawful presence.

You have the right to refuse to let ICE into your home unless they have a warrant signed by a judge. ICE likes to show up with administrative warrants of arrest or removal, which are not enough to authorize them to enter your home.

Remember that even the draconian expedited removal procedures have a review process. People who fear persecution or torture have a right to a review of their claim. People who claim U.S. citizenship, lawful permanent residence, or refugee or asylum status have a right to a “claimed status review” before being deported under expedited removal laws.

#2 Plan ahead. You don’t have to carry a giant folder of documents with you, but gathering your important papers together and storing them in a safe place where a trusted person can access them is a smart move. Help people who may have trouble explaining or even knowing their status know what to do if ICE asks them questions.

#3 Sue. Seriously. Immigrant rights organizations around the country are planning litigation, but individuals whose rights are violated need to step forward. Violations need to be documented and accountability demanded.

#4 Speak out. The expansion of expedited removal was announced in the Federal Register on July 23, 2019. Public comments will be taken for 90 days. You may submit comments, identified by Docket Number DHS-2019-0036 using the Federal e-Rulemaking Portal at https://www.regulations.gov.

Call your congressional representatives at 202-224-3121 and ask them to restore due process by repealing the expedited removal laws.

By Michele Garnett McKenzie, Deputy Director of The Advocates for Human Rights

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The “Commission on Unalienable Rights” has No Place in International Human Rights Dialogue

EleanorRooseveltHumanRights
Eleanor Roosevelt and United Nations Universal Declaration of Human Rights in Spanish text. (Unknown – Franklin D Roosevelt Library website)

The Advocates for Human Rights is strongly opposed to the U.S. Department of State’s recently announced “Commission on Unalienable Rights.” As an organization committed to implementing international human rights standards, we are deeply concerned about the many legal, moral, and philosophical problems with the Commission, its mandate, and its makeup. We have joined with other U.S. human rights leaders in sending Secretary of State Mike Pompeo a letter calling for the Commission to be immediately disbanded. (Read the full text of the joint letter here.)  With this letter, we also express  our collective desire to refocus this administration on solving some of the human rights violations it has fueled through its reactionary policies on issues ranging from immigration, asylum, freedom of religion, and myriad due process and rule of law issues.

We remain focused on fighting these human rights violations and holding our government accountable for the harms it is inflicting by its hateful, xenophobic policies and its failures to protect vulnerable people in this country, on our borders, and around the world.

The United States is scheduled to be reviewed by the United Nations Human Rights Council in May 2020 under its Universal Periodic Review (UPR) process. The UPR process involves an evaluation of the U.S. government’s compliance with the full range of internationally recognized human rights outlined in the Universal Declaration of Human Rights. This is a broad review that is based on the U.S. membership in the United Nations and is not focused on specific treaty obligations.

This review will be an opportunity to expose systematic violations of the rights of refugees, the rights of asylum seekers, and women’s right to be free from violence. The UPR process will highlight the U.S. government’s failure to protect the rights of religious minorities, the failure to ensure that all people live without discrimination, and the failure to respect the rule of law. These and many other violations will be exposed when the U.S. States government’s actions are evaluated by its peers in the Human Rights Council. The U.S. government will be called on to explain its human rights practices.

That’s a tall order for an administration that seems dedicated to reneging on our obligations at every opportunity: protecting perpetrators of violence against women; telling U.S. citizens to leave if they don’t like it here; attacking the press as enemies of the people; undermining the judiciary and the rule of law; and working to roll back guarantees of access to health care. So it is no surprise that the administration is trying to change the rules before it has to step into the spotlight.

Because that’s what this “Commission on Unalienable Rights” is all about. If we don’t like the rules, we will write new ones. And this administration has repeatedly made clear that it is prepared to violate any rule that gives those at the margins of power a voice or any rule that protects opportunities for diverse communities to live with dignity.

But human rights standards and the rule of law are stronger than this administration’s attempt to undermine them. We are better than we were at the end of World War II when there were no institutions to challenge the human rights violations perpetrated by dictators and those who model their policies after them. Human rights are not merely documents. They reflect the core values of our own Constitution and the decades of jurisprudence strengthening anti-discrimination laws that have sought to ensure that these core values can be enjoyed by all. No administration is above the law and we will continue to use all available mechanisms to hold our own government accountable for its bad practices.

By Robin Phillips, Executive Director of The Advocates for Human Rights 

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New Asylum Bar Takes Effect

Statue of Liberty_erik-lindgren-unsplashA new regulation by the Department of Homeland Security and the Department of Justice seeks to bar asylum to people who enter or attempt to enter the United States at the southern border if they do not first apply for asylum in at least one other country through which they traveled.  The Interim Final Rule published July 16 took immediate effect and allows only 30 days for public comment.

The new asylum bar is the latest in a series of actions designed to limit access to protection for refugees. The federal government has engineered a crisis at the southern border by starving the system of adjudicatory resources while exponentially expanding the capacity to detain people arriving in search of protection from persecution or torture. The government has used this engineered crisis to change unilaterally and without debate asylum eligibility rules.

The Advocates for Human Rights is deeply concerned about this restriction on the fundamental human right to seek and enjoy asylum from persecution. We are reviewing the regulation and monitoring its impact on our clients. Volunteer attorneys should watch for practice guidance and should reach out to The Advocates’ staff or consulting attorneys with questions.

What does the new rule do?

The new rule establishes a new mandatory bar to asylum for people who enter or attempt to enter the United States across the southern border if they did not apply for protection from persecution or torture in at least one third country through which they transited on their way to the United States.

Who does the rule apply to?

The new rule applies to anyone who enters or attempts to enter the United States at the southern border on or after Tuesday, July 16, 2019. This rule does not affect people who entered before July 16, 2019, or who enter or attempt to enter at other ports of entry.

Are there exceptions to the new rule?

There is a very limited exception for people who demonstrate that they are a victim of a severe form of trafficking in persons.

How can I help?

Speak out.

Comments to this rule, identified by EOIR Docket No. 19-0504, may be submitted via the Federal eRulemaking Portal: http://www.regulations.gov.

Call your congressional representatives at 202-224-3121 to ask them to protect the right to seek and enjoy asylum.

Volunteer.

We urgently need attorneys to represent asylum seekers. No immigration law experience is needed. You will get the training and support you need. Click here to get started.

Interpreters and translators make representation possible. Click here to help.

Human rights monitors are needed to observe immigration court hearings. Click here to learn more.

Donate.

The Advocates for Human Rights provides free legal help to more than 1000 victims of human rights abuses, including asylum seekers, victims of trafficking, and people in detention. We need your help now more than ever. Please click here to give.