The Advocates for Human Rights condemns plans by the administration to summarily return asylum seekers to Mexico without a hearing while simultaneously asking Congress for more than $800 million for federal immigration enforcement.
On Tuesday The New York Timesreported the White House plans, stating that “[u]nder the policy, asylum seekers would not be held for any length of time in an American facility nor would they be given due process.” Alongside the measure, the White House has requested more than $800 million in increased spending for Customs and Border Protection and Immigration and Customs Enforcement. Roll Call reports the increased funding is earmarked for migrant quarantine facilities and for charter deportation flights to allow continued deportations despite commercial airline shutdowns.
“This move, made at the very moment when federal immigration officials are refusing to release people from ICE detention centers who are at high risk of contracting COVID-19, makes clear that the administration has no interest in ensuring the health of people in its custody or in meeting its international human rights obligations,” says Robin Phillips, executive director of The Advocates for Human Rights. “While we are encouraged by Wednesday’s announcement by ICE that it will temporarily halt interior enforcement activities, people cannot be allowed to languish inside detention centers.
“We call on Congress to reject the White House’s request for more money for immigration enforcement. We also call on the administration to comply with international obligations to ensure that people are not returned to torture or persecution without a hearing. By reuniting people with their families, rather than detaining or deporting them, we can keep our communities safe and meet our legal obligations.”
By Michele Garnett McKenzie, Deputy Director at The Advocates For Human Rights
The Advocates for Human Rights is a nonprofit organization dedicated to implementing international human rights standards to promote civil society and reinforce the rule of law. The Advocates represents more than 1000 asylum seekers, victims of trafficking, and immigrants in detention through a network of hundreds of pro bono legal professionals.
At The Advocates for Human Rights, we envision a world where every person lives with dignity, freedom, justice, equality, and peace. We rely on volunteers to move us closer to this ideal. Volunteers are an essential part of our mission. They create a bigger impact beyond the capacity of our limited staff resources. For example, we leveraged a cash budget of $1.8 million dollars into programs and services worth more than $11 million dollars in our last fiscal year. Furthermore, by involving individuals from all walks of life in the work of human rights, we jointly build a stronger human rights movement.
We are encouraged by our volunteers who work in the trenches to protect and promote human rights. There are many ways to engage with The Advocates for Human Rights. As we move into 2020, we want to share 20 ways you can work with The Advocates to move all of us closer to a world where the inherent dignity of every person is recognized and respected.
We celebrate small victories as well as the bigger successes that combine to change the world for good. Every bit helps, and small steps are essential to building the larger movement. Thank you for all that you have done to make The Advocates such a strong organization.
We look forward to working with you in 2020 to build the human rights movement by involving individuals in other sectors in the work of human rights.
I will admit that when I realized that I had scheduled myself for court observation the Wednesday prior to Thanksgiving, I had not considered all the last-minute errands that would be put on my list, as the sole able-bodied member of my household. So when I woke up to heavy snowfalls and school cancellations that Wednesday morning, I felt a small surge of relief, mixed with guilt. However, when I called, I was informed that Immigration Court was moving forward, full stop. So out I went.
When I saw this particular case involved a woman (I’ll call her Mary – not her real name), my interest was piqued. It’s not all that common for women to appear on the detained docket at the Fort Snelling Immigration Court. The facts of the case were sad: Mary had been arrested after a loud, violent domestic incident had been reported to the police. I do not know whether her partner was also arrested. An immigration judge had already denied her request for release on bond, citing the domestic assault charges as evidence that she was a danger to the community.
But today her request was being re-heard by a different judge.
With her was a new lawyer, and his impassioned defense was the first inkling that this hearing was not business as usual.
The judge explained that she needed evidence of a material change in circumstances in order to consider granting release on bond. The attorney replied that her previous counsel had been ineffective. The previous counsel had failed to uncover the years of domestic abuse that Mary had endured at the hands of her partner. He not only abused Mary, but also threatened her children, several of whom were in the courtroom that day. Her lawyer emphasized that no one had spoken directly to the children during the police investigation of the incident.
He submitted a 315-page document to support the request for a bond, including dozens of affidavits of support from her community. He said that she had never been in trouble with the law previously, that this was her sole offense, and most importantly, that she had been acting in self-defense of herself and her children. Mary had an upcoming child custody hearing with this partner and was determined to retain custody of her minor children. She was clearly not a flight risk, because that hearing was her top priority.
The attorney asked for a $2000 bond because of their impoverished circumstances and the fact that she had been in custody for nine months. NINE months! [me, not the attorney]
Imagine my surprise when the judge almost interrupted the government lawyer to say that she was going to rule in Mary’s favor. There was a slight difficulty with the microphones that day which made hearing just a tad more difficult, and the judge was speaking rapidly. Everyone in the courtroom leaned forward to hear what she was saying. She went on to cite well-established research in the area of domestic violence that found that typically law-abiding and nonviolent individuals will resort to self-defense to protect their children. In a high percentage of cases, women’s use of violence is actually reactionary or defensive and often preceded by severe acts of violence by their partners.
By that time, her words had been translated. I looked over and saw that Mary was sobbing. The judge set the bond at $5000 and the attorney wheeled around to look at her daughters to get the OK. They were both sobbing but they nodded yes. Then I saw that most everyone in the courtroom was teary-eyed and some were openly crying. I’m crying now as I remember. Mary managed to gasp out “thank you, thank you” as she was led away.
I stopped myself from running after the daughters to write them out a check for $5000. Really, I’m not sure what good retirement savings are – they seem like almost unbearable privilege – when we live at a time when such terrible indignities can be visited upon people like Mary. But I knew that it would be breaking the rules of no interaction with those we observe. I was glad to have learned through the Human Rights Defender Project (court observation) about the immigration bond fund with The Minnesota Freedom Fund.
I was very glad to have witnessed such an uplifting outcome for Mary, even though the way ahead would be difficult. She would be with her family at Thanksgiving and that was a tremendous blessing for us all.
By Susan Herridge, a volunteer court observer with The Advocates for Human Rights under the Human Rights Defender Project.
About the Human Rights Defender Project: People detained by federal Immigration and Customs Enforcement (ICE) face barriers to basic human rights. While people detained by ICE have the right to legal counsel, they do not have the right to a government-appointed attorney. Many people, regardless of age or capability, have to represent themselves in immigration court. Detention undermines the ability to seek and enjoy asylum from persecution, to remain with family, and to a fair day in court. Although immigration court hearings are open to the public, few people witness these proceedings.
The Human Rights Defender Project Court Observers help bring transparency and accountability to this system. Court Observers attend hearings and report on issues of concern including access to counsel, family and community support, and interpretation; the manner of arrest; and the ability of individuals to raise defenses to deportation.
No immigration experience or law license is needed. This community service opportunity is open to all. Court observers must have valid government-issued photo identification to enter the immigration court. Learn more and volunteer here.
This project currently is open to observers at the Fort Snelling Immigration Court only.
At The Advocates for Human Rights, we envision a world where every person lives with dignity, freedom, justice, equality, and peace.
As this year comes to a close, we know that there is still much to be done to reach that ideal. In 2019, we saw setbacks in asylum policy that put the lives of victims of human rights violations in jeopardy. The administration targeted social safety net programs that keep people afloat in hard times. Universal access to health care is still out of reach. Our partners in other countries are targeted and threatened for speaking up about basic and universally accepted human rights.
We are encouraged by those who have come forward to protect human rights. We are grateful for those who are on the front lines every day, fighting to protect the dignity and human rights of people in this country and around the world.
Nearly every day, people who are frustrated with what is happening contact us and ask what they can do to protect human rights. For the start of the new year, we have come up with a list of suggestions to move us closer to a world where the inherent dignity of every person is recognized and respected.
Here are 20 things you can do in 2020 to support human rights:
Read and educate yourself about current events and their impact on human rights.
Attend events and presentations to increase your knowledge of human rights standards.
Familiarize yourself with groups working on human rights issues that are important to you.
Donate to an organization that reflects your human rights values.
Volunteer with an organization that you support. For example, at The Advocates our volunteer opportunities include monitoring court proceedings, investigating human rights conditions and much other meaningful work for volunteers of any background.
Sign a petition on an important human rights issue.
Write and call your elected officials to encourage them to protect human rights and to thank them when they do.
Use social media to support human rights initiatives and educate others about human rights.
Write a blog post or opinion piece to share your personal experiences with advancing human rights.
Organize or participate in a demonstration promoting issues you support.
Ask hard questions about human rights to candidates at all levels of government.
Volunteer for candidates who ground their campaigns in protecting fundamental human rights principles.
Vote and actively work to get out the vote on election day.
Speak up when you hear someone being mistreated.
Speak up when people are repeating negative stereotypes or making discriminatory comments.
Start your own positive conversations about human rights issues.
Recognize your own internal biases and work to overcome them.
Invite someone to your home whose background or life experience is different from yours.
Read a book or see a play that expands or challenges your world view.
Take care of yourself so you are ready and able to respond when opportunities to promote human rights arise.
When you focus on your efforts to advance human rights, you will start seeing opportunities every day to make the world a little bit better.
Happy New Year from all of us at The Advocates for Human Rights!
By Robin Phillips, Executive Director of The Advocates for Human Rights.
I’ve spent the last few days in Paris immersed in the work of the World Coalition Against the Death Penalty—collaborating with other members the Coalition’s Steering Committee to review our accomplishments over the past year and to define our countries and issues of focus for the next three years, and attending workshops to prepare for a four-year project funded by the European Union to combat the death penalty in several African countries and other countries at risk of resuming executions. But when I get on the plane for Minneapolis Wednesday, it will be time to switch gears and think about the connections between The Advocates’ involvement with the international abolitionist movement and death penalty issues closer to home.
On Wednesday, December 11, 2020, the U.S. Supreme Court is hearing oral argument in a death penalty case called McKinney v. Arizona. With pro bono assistance from Dechert LLP, The Advocates for Human Rights and the World Coalition submitted an amicus curiae brief in support of the petitioner, James McKinney, who was sentenced to death in Arizona for his involvement in two 1991 murders. McKinney was 23 years old at the time of the crimes.
We work to limit the scope of the death penalty
The Advocates, like the World Coalition, is opposed to the death penalty in all circumstances. In some countries, however, we don’t expect immediate abolition of the death penalty. As an interim measure, we try to limit the scope and applicability of the death penalty, consistent with international human rights standards.
Article 6, paragraph 1 of the International Covenant on Civil and Political Rights recognizes that “No one shall be arbitrarily deprived of his life.” In the context of the death penalty, this language means that a person charged with a crime eligible for the death penalty must receive a fair trial and the jury (or judge) must consider all relevant evidence before deciding whether to sentence the person to death.
My Steering Committee colleague Connie Numbi, who represents the Foundation for Human Rights Initiative (FHRI) in Uganda, notes that several East African countries such as Tanzania and Botswana have a mandatory death penalty. If a person is convicted of certain crimes, the death sentence is automatic. No judge or jury hears evidence about the nature of the crime, why the person committed it, or what “mitigating” factors might warrant a sentence other than death.
The death penalty is arbitrary if the defense can’t present evidence about the defendant’s personal circumstances and the circumstances of the offense
The Human Rights Committee (the UN body in charge of interpreting the Covenant) has explained that any mandatory imposition of the death penalty violates Article 6, paragraph 1 because it is arbitrary:
In all cases involving the application of the death penalty, the personal circumstances of the offender and the particular circumstances of the offence, including its specific attenuating elements must be considered by the sentencing court. Hence, mandatory death sentences that leave domestic courts with no discretion on whether or not to designate the offence as a crime entailing the death penalty, and on whether or not to issue the death sentence in the particular circumstances of the offender, are arbitrary in nature.
Similarly, Article 6, paragraph 2 of the International Covenant on Civil and Political Rights states that, “In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes,” The Human Rights Committee has explained that under this provision, the death penalty “must not be applied except for the most serious crimes, and then only in the most exceptional cases and under the strictest limits.”
McKinney never had a fair chance to present evidence of his personal circumstances
Which brings us to McKinney’s case before the U.S. Supreme Court. A jury found McKinney guilty of murder, but at the time, under Arizona law, a judge was responsible for deciding the appropriate sentence. McKinney’s attorneys presented evidence to the judge about McKinney’s horrific childhood, including evidence McKinney has Post-Traumatic Stress Disorder from his abuse. The judge accepted McKinney’s PTSD diagnosis but did not consider it in deciding on the sentence. Indeed, under Arizona law at the time, the judge was prohibited from taking into account any evidence of mitigating factors that were not causally connected to the crime.
An appellate court ruled that the judge was wrong to reject the PTSD evidence. The State of Arizona then took up the case with the Arizona Supreme Court, asking that court to review the sentencing decision. McKinney argued that he was entitled to a new sentencing hearing, particularly because in the interim the U.S. Supreme Court had ruled that juries—not judges—must make any factual findings relevant to deciding whether to sentence someone to death.
But the Arizona Supreme Court disagreed. It decided to conduct an independent review of McKinney’s sentence. In so doing, it said that McKinney’s conviction had been finalized before that Supreme Court ruling. And it then went on to look at the trial transcript and make its own sentencing decision, concluding that the mitigating evidence wasn’t sufficient to warrant a punishment other than death.
McKinney takes his case to the Supreme Court
Before the U.S. Supreme Court, McKinney will argue that the Arizona Supreme Court made two mistakes. First, when it reopened the case, the Arizona Supreme Court should have applied the current law, requiring a jury (rather than a judge) to make the factual determinations relevant to a death sentence. Second, the Arizona Supreme Court should have given McKinney the opportunity for a new hearing to present mitigating evidence, rather than simply reading the trial transcript.
Our friend of the court brief: The U.S. Supreme Court helped build a consensus under international human rights law that people like McKinney must have a fair chance to present all their mitigating evidence
Our Supreme Court’s reasoning in that case gradually helped build a consensus among national courts and international human rights mechanisms favoring individualized sentencing in capital cases. In 2009, for example, in a case that FHRI initiated, the Ugandan Supreme Court struck down that country’s mandatory death penalty for murder, and earlier this year the Ugandan parliament adopted a law eliminating several provisions rendering the death penalty mandatory. Kenya’s Supreme Court followed Uganda’s lead and struck down the mandatory death penalty in 2017. Malaysia is also taking steps to limit the mandatory nature of the death penalty.
Our brief cites the Ugandan Supreme Court as well as a long line of Human Rights Committee rulings recognizing that under Article 6, a person has the right to “individualized sentencing” where defense counsel may present evidence about the defendant’s personal circumstances as well as the circumstances of the crime.
Our brief also points out that the U.S. Federal Government has repeatedly assured the Human Rights Committee that in capital cases “the jury must be able to consider and give effect to any mitigating evidence that a defendant proffers.”
By the time I get off the plane, court-watchers will be sharing their spin on the oral argument, and by the end of the week, the Court will probably release a transcript I can read to get caught up. And then it will be a matter of waiting to see whether the Court will build on the foundation of international human rights law that it helped lay to ensure that McKinney finally has a chance to tell a jury his story.
Amy Bergquist is Senior Staff Attorney with the International Justice Program. She is Vice President of the World Coalition Against the Death Penalty and represents The Advocates on the Coalition’s Steering Committee.
As a longtime practicing attorney in the United States, I spent much of my professional career working on cases related to criminal justice, including prison conditions and the death penalty. My death penalty work brought me in contact with The Advocates for Human Rights several years ago, when I had the opportunity to write a report to the UN Human Rights Council about the death penalty in the United States. So began a volunteer relationship in which I was able to participate in The Advocates’ UN work to abolish the death penalty and many other issues. It’s thanks to that relationship that I’m now studying International Humanitarian Law and Human Rights at the Geneva Academy in Switzerland, and hope to continue addressing criminal justice issues using different approaches after graduation.
While pursuing my studies, I am also still a volunteer for The Advocates in Geneva. Recently, I had the opportunity to participate in a pre-session meeting with the UN Committee on the Rights of the Child regarding Tunisia’s progress in implementing the Convention on the Rights of the Child. The pre-session meetings provide a chance for non-governmental organizations (NGOs) and other interested stakeholders to provide information to the Committee in a confidential setting. I joined Bronwyn Dudley of the World Coalition Against the Death Penalty, and Choukri Latif of the Coalition tunissiene contre la peine de mort (a Tunisian anti-death penalty NGO), to address the committee regarding Tunisia’s failure to implement the rights of children whose parents have been sentenced to death or were executed. The Advocates, the Tunisian Coalition, and the World Coalition highlighted these issues in a recent report to the Committee.
Children: Unseen victims of the death penalty
This year’s World Day Against the Death Penalty, on October 10, 2019, will focus on how children around the world are affected by the death penalty, so meeting with the Committee on the Rights of the Child was a timely opportunity to apply this broader concern to a concrete situation. The World Coalition seeks to raise awareness of the severely damaging psychological trauma inflicted upon children whose parents are sentenced to death, at every stage of the process from arrest to incarceration to execution.
Punishing Tunisian Children for Their Parents’ Wrongdoing Violates the Convention
As in many retentionist countries, people sentenced to death in Tunisia typically spend many years in prison. Indeed, since Tunisia has thankfully been observing a moratorium on the death penalty since 1991, parents who are sentenced to death may spend decades in prison. As Choukri explained in his opening statement to the Committee, Tunisia is failing to protect the rights of those children to maintain meaningful relationships with their parents during their incarceration. Many of these parents are incarcerated far away from their families, and the prohibitive costs of transportation prevent children from exercising their visitation rights. Even for those who can do so, visits are limited to 30 minutes and, for younger children, direct physical contact with the parent is not permitted. Children of death-sentenced and executed parents are not provided with badly needed medical and mental health care to cope with the trauma they endure. Additionally, a new anti-terrorism law has expanded the potential application of the death penalty in Tunisia, including to children themselves, and is very unclear as to what conduct is covered.
Tunisia Must Reform Its Laws and Practices to Respect Children’s Rights
Several Committee members posed questions. The Committee’s questions provided me with an opportunity to offer some specifics about the failings of Tunisia’s laws, and how Tunisian authorities must address those failings to bring Tunisia into compliance with its human rights obligations. We also provided more information about the government’s purported justification for the anti-terrorism law and possible alternative measures.
Around the world, the death penalty in anti-terrorism laws is typically justified as a supposed deterrent to would be terrorists. But academic research reveals that there is no support for the notion that the death penalty is a deterrent to terrorism. In 2016, the UN Special Rapporteurs on summary executions, torture, and human rights while countering terrorism, respectively, specifically warned against using the death penalty in an effort to deter terrorism, stating:
“there is a lack of persuasive evidence that the death penalty could contribute more than any other punishment to eradicating terrorism. The death penalty is also an ineffective deterrent because terrorists who are executed may just gain in prestige, as may their cause.”
In other words, the death penalty, if it has any impact at all, may provide incentives to terrorists.
Tunisia Creates Unnecessary Barriers to Children’s Rights
With regard to the need to continue reviewing and revising laws, I offered the laws affecting children of death-sentenced parents as an example showing that Tunisia’s laws are not yet compatible with the Convention and continue to be in need of reform. The Tunisian Constitution of 2014 expressly recognizes the rights of children and the government’s obligation to act in their best interests, and the law on Special Regulations for Prisons expressly provides that children are entitled to visit their detained parents. But these laws are vague and do not give Tunisian authorities direction about how to account for the recognized rights and obligations. In law and in practice, Tunisia continues to violate children’s rights through arbitrary interference (30 minute visit limitations and lack of physical contact), and failure of the government to make any provision to address the financial barriers associated with transportation to far-flung prison facilities. The latter failure constitutes a de facto denial of the right to visit, but Tunisia does nothing to take this right into account when deciding where a parent will be incarcerated. In fact, Tunisian authorities often deliberately place parents far from their families, considering such isolation to be part of the parent’s punishment. Such punishment obviously violates the rights of the child, just as expressly denying visits would.
I was also able, thanks to the detailed research Bronwyn conducted before the meeting, to point the Committee to two of its own previous recommendations that supported our position that Tunisia has a positive obligation to take the child’s interests into account during criminal proceedings related to the parent.
To learn more about The Advocates’ work on the Death Penalty, click here. For ideas of things you can do to take action for World Day Against the Death Penalty, click here.
By: Lisa Borden, a volunteer with The Advocates for Human Rights, currently based in Geneva, Switzerland.
In May 2019, the United Nations Human Rights Council held its 33rd session of the Universal Periodic Review (UPR), as part of the third cycle of the review process. The UPR examines the status and progress of human rights in all 193 member countries of the United Nations. (For more information about the UPR, check out Chapter 9 of Human Rights Tool for a Changing Worldhere.) Among other countries, both the Democratic Republic of Congo (DRC) and Brunei Darussalam received recommendations to further their progress toward abolishing the death penalty.
Both countries have a de facto moratorium on the death penalty. Brunei has had no reported executions since 1957, and the DRC has had the moratorium since 2003. But neither country has ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights to officially move toward abolition of the death penalty. Even though international human rights standards mandate that countries retaining the death penalty must reserve it for only the most serious crimes, Brunei continues to sentence people by hanging for far less.
Under the Syariah Penal Code, adultery, sodomy, rape, apostasy, blasphemy, and insulting Islam are all punishable by death by stoning in Brunei. In the DRC, the administration of the death penalty lacks transparency. Just last year, the government handed down 41 death sentences.
At the Universal Periodic Review
Due to these issues, at the UPR in May both countries faced increasing pressure to abolish the death penalty. Brunei Darussalam received 96 recommendations on the death penalty from 50 countries–38.6% of all recommendations the country received, and a 336% increase from Brunei’s second cycle UPR. The recommendations ranged from ratification of the Convention against Torture to repealing problematic provisions in the Penal Code. The DRC received death penalty recommendations from 17 countries, an increase of 13.3% from the second cycle.
The Advocates, together with the World Coalition Against the Death Penalty, pushed for these recommendations behind the scenes. The two organizations submitted joint stakeholder reports on both countries. (To read the full reports, visit: Brunei and the DRC). Through both emails and in-person meetings, The Advocates lobbied 48 of the 50 countries that made death penalty recommendations to Brunei Darussalam, and 16 out of the 17 countries that made death penalty recommendations to the DRC.
A Lack of Progress?
After taking months to examine the recommendations from May, last month both Brunei Darussalam and the DRC “noted” all the recommendations relevant to the death penalty. In the language of the UN, noted means rejected. Both countries cited their respective sovereignty over the issue as the reason for rejecting the recommendations. Brunei Darussalam used the country’s religious background to justify the current use the death penalty in the Penal Code. Many countries and organizations, including Belgium and the UK, urged the government of Brunei to reconsider its decision. Similarly, a representative of the government of the DRC told the Human Rights Council that the nation’s own parliament should make the final decision on the death penalty. A delegate from Germany, however, urged the DRC to ratify the Second Protocol.
Despite noting these recommendations in the official meeting, the Brunei government took a small step forward. On May 6, the Brunei government announced that it would extend its moratorium on capital punishment to the crimes of homosexuality and adultery. Under laws that had taken effect in April, the two crimes would otherwise have been eligible for the death sentence of stoning. Furthermore, a representative from the government of Brunei told the Human Rights Council that the government had been making progress toward ratifying the Convention Against Torture. Many governments and non-governmental organizations welcomed this move.
The fight persists
This small victory, however, should not overshadow the larger picture. Despite overall progress toward abolition of the death penalty, many countries’ practices are far removed from international human rights standards. The cases of Brunei Darussalam and the DRC signal the difficulty ahead. The Advocates will continue to fight for a humane justice system on an international level.