Death Penalty Moratorium Brings California Closer to International Human Rights Norms

CA death chamber
Photo: Office of the Governor of California  https://www.sfgate.com/bayarea/article/Striking-photos-show-San-Quentin-execution-13686251.php#photo-17066014

In March 2019, California Governor Gavin Newsom announced the state’s moratorium on the death penalty. His executive order gave the more than 700 inmates on death row reprieve from future execution (although they are still under sentence of death), closed the execution chamber in San Quentin Prison, and withdrew California’s lethal injection protocol. Governor Newsom’s order is a strong stance against the death penalty in California and the United States. The moratorium in my home state of California coincided with my internship here at The Advocates, where I have both worked on and learned about issues globally and domestically related to the death penalty.

The United States’ use of the death penalty and the conditions on death row are gross violations of global human rights norms. As of 2013, there were 3,000 prisoners on death row across 35 states . In Texas, inmates on death row are held in solitary confinement and spend all but 1-2 hours a day in isolation. When they receive visitors they are barred from having physical contact, including with their children Across the country, 93% of states with the death penalty lock up death row inmates for 22 or more hours a day and 67% of states mandate no-contact visitation for death row inmates. Additionally, 62% of states do not offer religious services to death row inmates. This practice violates the Constitution’s First Amendment, the Religious Freedom Restoration Act (for federal and DC prisons), the Religious Land Use and Institutionalized Persons Act, as well as the International Covenant on Civil and Political Rights

Being held in solitary confinement, sometimes for decades, has disastrous impacts on the mental health of death row inmates. Craig Haney, a psychologist at University of California Santa Cruz, conducted a 2003 study of inmates in solitary confinement. He found that two-thirds of inmates talked to themselves and nearly half had “perception disorders, hallucinations, or suicidal thoughts” and Stuart Grassian, who interviewed hundreds of inmates in solitary confinement, found that one-third developed severe mental illness. It is not an exaggeration to say that the treatment of death row inmates in solitary confinement amounts to torture. Techniques of social isolation of detainees in Iraq and Afghanistan were some of the most common of the United States’ so-called “enhanced interrogation” techniques. The United Nations Human Rights Council’s Special Rapporteur on Torture, Nils Melzer, has argued these interrogation methods amount to torture. 

The United States’ treatment of death row inmates violates the United Nations’ Standard Minimum Rules of the Treatment of Prisoners, also known as the Nelson Mandela Rules. While the rules are not legally binding, they do set minimum expectations for the treatment of prisoners. The denial of religious services and resources violates two of these rules: rule 4, which states that prisons should offer education and and vocational training and other forms of recreation and assistance, including spiritual assistance, and rule 104, which requires that inmates be provided with religious instruction. With regard to the use of solitary confinement, rule 43 specifically prohibits “prolonged or indefinite solitary confinement.” Rule 45 goes on to prohibit solitary confinement as a condition of a prisoner’s sentence. The routine confinement of death row inmates to solitary confinement for the duration of their incarceration, particularly when mandated by state law, violates these rules.  

The Advocates is actively working to combat the death penalty in the United States and globally. The Advocates is on the Steering Committee of the World Coalition Against the Death Penalty. As part of our human rights advocacy at the UN we advocate against the death penalty by issuing reports and lobbying on the use of the death penalty on minors, inhumane detention conditions, lack of adequate legal representation, and other human rights concerns surrounding the death penalty. As part of this work The Advocates has collaborated not only with the World Coalition Against the Death Penalty but also with local organizations and activists on reporting and advocating against the death penalty around the world. Combating the death penalty is a central piece of The Advocates’ work in international justice, and I am glad to have had the opportunity to be a part of this work.

By Hannah Maycock, a Fall 2018/Spring 2019 International Justice Intern at The Advocates. She graduated with a degree in Political Science from Macalester College May 2019.  

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Puerto Rico and the Federal Death Penalty: A Legacy of Colonial Paternalism

90th anniverario

Today marks the 90th anniversary of the abolition of the death penalty in Puerto Rico. Following significant human rights progress in the nineteenth and twentieth century driven by Latin American abolitionist movements, Puerto Rico’s legislature abolished the death penalty on April 26, 1929.

A history of opposition

In 1952 the Puerto Rican Constitution further secured abolition by declaring: “The death penalty shall not exist.”

The Puerto Rican Constitution has a unique history. The Congress of the United States adopted a law in 1950 authorizing Puerto Rico to draft its own constitution. After several months of deliberation, the Constitutional Convention of Puerto Rico produced a draft Constitution. In 1952 the electorate in Puerto Rico approved that document, with support of nearly 82% of voters. After the referendum, the U.S. Congress amended the draft constitution, but did not amend the provision prohibiting the death penalty. After those amendments, the Constitutional Convention reconvened and approved a resolution accepting the congressional amendments. And in November 1952, the Puerto Rican electorate approved the amended constitution.

Commemorating 90 years of abolition

The legislature of Puerto Rico is commemorating the historic milestone of abolition of the death penalty with a joint resolution that explicitly reaffirms abolition of the death penalty and rejects the application of capital punishment as a “failed mechanism” which is implemented in an “arbitrary and discriminatory manner.”

Federal authorities have stepped up efforts to seek the death penalty in Puerto Rico

Despite Congress explicitly accepting and endorsing Puerto Rico’s Constitution, the federal government has continued to seek death sentences in Puerto Rico, ignoring strong local opposition. In this sense, today’s resolution, and the anniversary more generally, also highlight the complex colonial history of capital punishment in Puerto Rico.

Puerto Rico’s continuing commitment to fighting the death penalty reflects not only the collective, cultural opposition of its citizens to capital punishment, but also a world view that recognizes the fundamental incompatibility of the death penalty with human rights. At a time when there may be ominous backsliding on these issues at the federal level, Puerto Rico is leading by example.

The Juan Pedro Vidal case sheds light on these tensions

When the federal government seeks the death penalty in Puerto Rico, it is violating not only the right of all persons to be protected from cruel and inhuman punishment, but also the right of self-determination of the people of Puerto Rico.

Today’s joint resolution by the Puerto Rican legislature highlights a decision issued earlier this month by Judge Gustavo A. Gelpi of the U.S. District Court for the District of Puerto Rico. In that decision, Judge Gelpi rejected Juan Pedro Vidal’s argument that the Federal Death Penalty Act does not apply to Puerto Rico.

Vidal argued that U.S. citizens who reside in Puerto Rico should not be subject to federal civil and criminal laws that are crafted by representatives for whom they did not vote, particularly in light of the history of Puerto Rico’s decision to abolish the death penalty and the formal act of the U.S. Congress approving that decision.

In a four-page opinion, Judge Gelpi rejected Vidal’s arguments, asserting that capital punishment falls into a category of federal laws that apply equally to all citizens, independent of questions of geography. The court stated that the issue of disenfranchisement of U.S. citizens living in Puerto Rico presented a question to be resolved through the political process, not the court. Moreover, the court reasoned, even though the Puerto Rican Constitution prohibits capital punishment, federal law preempts state law for federal crimes, as would be true in any other state.

The principle of consent of the governed

The court’s order ignores Puerto Rico’s unique status and history which place the people of Puerto Rico in a “democratic void,” unable to seek adequate political or legal recourse. Today’s joint resolution noted this dissonance, emphasizing that U.S. citizens in Puerto Rico have no say in the federal government policy that can take their lives.

Steven Potolsky, who represented Pedro Vidal and specializes in death penalty defense, argued that it was precisely due to this lack of representation that judicial action was necessary. Potolsky emphasized that because the U.S. Congress had originally accepted Puerto Rico’s constitutional prohibition of the death penalty, retroactive application of federal capital punishment was unreasonable and excessive, especially in light of the fact that U.S. citizens living in Puerto Rico have no democratic mechanism to voice their opposition at the federal level.

Federal judge’s arguments place Puerto Ricans in a double-bind

Although Judge Gelpi acknowledged that the lack of representation was undemocratic, he said that it was not unconstitutional, and that it was left to “the hands of Congress” to fix the problem.

The court never explains how to determine when something that is undemocratic is also unconstitutional, or why exactly the courts should not intervene. The court’s analysis drew on other opinions applying federal law to colonial territories, but ignored Puerto Rico’s distinct and unique history. The opinion seems to place Puerto Ricans in a political-legal double bind.

The court also ignores Puerto Ricans’ longstanding opposition to the death penalty. As the joint resolution highlights, no jury in Puerto Rico has ever sentenced a person to death under federal law, even after those juries have reached guilty verdicts.

Worrying trends under the Trump Administration

The court’s logic is even more worrying when framed within the broader of the death penalty in the United States since 2016. Amnesty International has documented an increase in the number of executions and death sentences since 2009 for two years in a row.

Although these numbers still remain at historical lows, the trend points to an ominous political and legal climate under the Trump presidency. They call on us to be vigilant and to combat backsliding.

In the context of Puerto Rico, the joint resolution noted that even though Puerto Ricans account for just 1% of the U.S. population, Puerto Rico accounted for 20% of all federal death penalty cases between 2012 and 2014. With these trends in mind, the federal courts should pay more careful attention to their role in safeguarding the rights of people in territories like Puerto Rico.

Continuing local, national, and international efforts to fight the death penalty

The Vidal decision has further galvanized the Puerto Rican fight against the death penalty. Kevin Miguel Rivera-Medina, President of the World Coalition Against the Death Penalty and of the Puerto Rican Bar Association, expressed frustration at the hearing before Judge Gelpi. Attorneys for the federal government—both white and not Puerto Rican—asserted that Puerto Ricans were not traditionally opposed to the death penalty. The argued that the death penalty was used during the 19th century and in the early 20th century. But as Rivera-Medina pointed out, they ignored the fact that during that time Puerto Rico had been under the Spanish colonial regime and then was a U.S. colonial territory.

In celebration of the 90th anniversary of Puerto Rico’s abolition of the death penalty, universities and high schools are holding round tables on the topic and the Puerto Rican Coalition Against the Death Penalty is welcoming Witness to Innocence—an organization created by and for death row exonerees—to the Puerto Rican legislature.

The Advocates for Human Rights is preparing to bring these issues to the international stage

In May 2020, the United States will participate in its third Universal Periodic Review at the U.N. Human Rights Council. During the last UPR, The Advocates raised the issue of the death penalty in Puerto Rico in a joint stakeholder report coauthored with the Puerto Rican Coalition Against the Death Penalty and the Greater Caribbean for Life We are busy preparing an updated report that will identify some of the recent developments in Puerto Rico and throughout the United States that warrant the world’s attention. For more information about using the United Nations to promote human rights, see Chapter 9 of Human Rights Tools for a Changing World. To read more about the death penalty in the United States and other countries, consult our online library of UN submissions.

By Shubhankar Dharmadhikari, an intern with the International Justice Program at The Advocates for Human Rights. He is a student at the University of Minnesota.

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The Advocates Welcomes Progress in Ethiopia, Remains Concerned that Threats to Minority Rights Remain

The Advocates for Human Rights has worked in partnership with the Oromo diaspora for many years to hold the government of Ethiopia accountable for human rights violations.  In March 2019, volunteer Nagessa Dube made the following oral statement at the United Nations Human Rights Council during an Interactive Dialogue with the UN Special Rapporteur on minority issues.  

Dear Mr. President:

The Advocates for Human Rights, alongside partner organization United Oromo Voices, would like to thank the Special Rapporteur for his report on minority issues. The concerns that he raises in his report and in his 2018 country visits parallel the struggles minority indigenous groups face in Ethiopia.

Similar to Botswanan minorities, as discussed in the report, minority groups in Ethiopia face barriers to land use. Members of the minority Ogaden community have been subjected to the arbitrary confiscation of land and ethnic persecution since the beginning of Ethiopian rule over the Somali region in 1948. In April 2014 and again in November 2015, the Oromo people launched large-scale protests in opposition to the Addis Ababa Master Plan, which intended to forcibly displace the Oromos from their homes in favor of expansion of the territory of the capital city.

We call attention to the persecution and suppression of freedom of speech. Many Oromo people were injured and killed during the 2016 Irreechaa protests after security forces fired into crowds. Many survivors were taken into government custody.

We do commend the Ethiopian Government for accepting several recommendations in the last UPR in 2014 to take measures to alleviate tensions between and discrimination against ethnic groups through intercultural and inter-religious dialogue. And we welcome the current administration’s stated commitment to reforms, including the release of thousands of political prisoners—many belonging to minority and indigenous groups—and ending the state of emergency. Despite this progress, the threat to minority rights in Ethiopia continues via land displacement, persecution, and suppression of the freedom of expression.

We urge the government of Ethiopia and the Council to work together to confront the threats to minority rights in all their forms.

Thank you.

Briefing the UN Human Rights Council on Burundi

A growing number of victims fleeing politically-based violence in Burundi have requested legal assistance from The Advocates for Human Rights in applying for asylum in the United States. The Advocates for Human Rights recently brought the experience of our clients and concerns about violations of civil and political rights in Burundi to the United Nations Human Rights Council.  The Advocates for Human Rights’ volunteer attorney Carrie Brasser delivered the following oral statement in March 2019 during an Interactive Dialogue with the UN Commission of Inquiry for Burundi.

The Advocates for Human Rights welcomes the oral briefing of the Commission of Inquiry on Burundi.

Since April 2015, the human rights crisis in Burundi has escalated in both its extent and brutality. The ruling party’s repression of suspected opponents, civil society, and the media has involved enforced disappearances, extrajudicial killings, arbitrary detention, torture and rape. State actors, including members of the police force and the Imbonerakure youth league, have acted with impunity against their victims. The indiscriminate shooting of demonstrators, targeting of journalists and activists, and aggressive reprisals against witnesses are among the many abuses suffered by citizens. These conditions have caused over 250,000 to flee this state-sponsored oppression and violence.

As a provider of legal services to asylum seekers, The Advocates for Human Rights has represented victims of violence from Burundi and documented first-hand accounts of:

  • Illegal invasions and searches of homes and businesses, including firing on civilians, looting of property, and the rape of a witness
  • The arbitrary arrest of an anti-corruption activist based on false charges, culminating in her assault and rape, and
  • The targeting of supporters of constitutional election law, as well as journalists, involving arbitrary arrests followed by brutal torture for extended periods

We commend the Commission of Inquiry for making concerted efforts to engage in monitoring and fact-finding among people who have been forced to flee the country.

These and other accounts of human rights abuses support our recommendations that the Human Rights Council:

  • Continue the mandate of the Commission of Inquiry on Human Rights in Burundi and retain the situation in Burundi on its agenda under item 4
  • Request that the Security Council impose sanctions against individuals responsible for both gross systemic human rights violations as well as the obstruction of UN mechanisms to document violations and
  • Encourage effective justice mechanisms to ensure that individuals responsible for these abuses are held accountable.

Thank you.

In 2017, The Advocates also submitted a stakeholder submission for Burundi’s Universal Periodic Review, which included direct information about human rights violations from survivors who have fled Burundi to seek asylum in the United States.  Read the full submission here.

Trafficking in Women and Girls in the Context of Global Migration

Since 2014, a growing number of women and children fleeing gender-based violence in the Northern Triangle countries of El Salvador, Guatemala, and Nicaragua have requested legal assistance from The Advocates in applying for asylum in the United States. The Advocates for Human Rights is able to help these women and children in two important ways: providing legal assistance in their asylum and trafficking cases and documenting their experiences to advocate at the United Nations for law and policy changes. 

In February 2019, Board member Peggy Grieve shared the experiences of our asylum clients with and made recommendations to the UN Committee on the Elimination of all forms of Discrimination Against Women.  Peggy delivered the following oral intervention during the Committee’s Half-day General Discussion on Trafficking in Women and Girls in the Context of Global Migration.

Dear Members of the Committee:

From The Advocates for Human Rights’ direct legal representation of Northern Triangle clients, we have determined:

(1) children, even when traveling in the company of migrating adults, are vulnerable to sex trafficking; and

(2) after arrival in the U.S., adults and children are at risk of labor trafficking.

Two examples. One client entered the U.S. as a 15-year-old girl with her father. A family friend coerced her into leaving home. They traveled to live several states away where this friend groomed her to be sex-trafficked.

A client entered the U.S. without inspection with her boyfriend. He brought her to live with his family.  Before long, he demanded that she repay him $10,000 he had paid smugglers for entry. He sexually assaulted her. She was forced into a low-paid, illegal job to cover her “debt.”

No one is going to believe you. You don’t have a voice. Here you are nobody,” she was told.

To help women and girls, victims of trafficking, survive, heal, and ultimately integrate into society and live a life free of further exploitation, a victim-centered, trauma-informed approach that provides survivors with immigration and other legal protections and adequate support services is critical.  The criminal justice approach focused on punishing traffickers, by itself, is insufficient to address the human rights of sex and labor trafficked survivors.

On behalf of our clients, the Advocates for Human Rights thanks the Committee for this important initiative.

The Advocates for Human Rights encourages the Committee to consider the experience of our women and girl clients, as well as the recommendation for a victim-centered approach to identify and respond to meet the needs of trafficked women and girls in the context of global migration.

International Women’s Day 2019: Think Equal, Build Smart, Innovate for Change

The theme for International Women’s Day 2019 is Think Equal, Build Smart, Innovate for Change. According to UN Women, this theme challenges us to think about how we can “advance gender equality and the empowerment of women.” This objective reflects that envisioned by Sustainable Development Goal 5, which recognizes that although discrimination against women and girls is decreasing, gender inequality persists and continues to deny women and girls basic human rights and opportunities. As we look at laws and practices around the world today, there are still laws that actively discriminate against women. Many countries still retain lists of prohibited jobs for women – banning them from jobs such as a truck driver, factory worker, metal welder, deck hand or barring them from working above certain heights or during night hours. In countries where economic opportunities are scarce, removing these employment opportunities from women’s reach hinders their empowerment, advancement and economic independence. For example, Russia bans women from 456 types of jobs, Ukraine bans women from 458 jobs, and Kazakhstan bans women from 287 jobs. These countries are rich in natural resources and therefore employment opportunities in those fields, yet the lists of banned professions often include jobs found in the extractives industries.

promoting_gender_diversity_and_inclusion_in_the_oil_gas_and_mining_extractive_industries
At the request of the UN Group of Experts on Coal Mine Methane, The Advocates has undertaken research to examine the benefits of female inclusion and ways to support women in traditionally male-dominated industries, specifically the extractive industries of oil, gas, and mining. The report, Promoting Gender Diversity and Inclusion in the Oil, Gas and Mining Extractive Industries, demonstrates the numerous benefits that women and diversity bring to industries, including a larger talent pool for recruitment, greater profitability, improved performance, better safety records, and overall economic empowerment to women and communities. For example, it is well-documented that female inclusion boosts company profits. Companies ranking in the top 25 percent for gender diversity are 15 percent more likely to have “financial returns” higher than the national industry medians. Companies with more women employees and gender-diverse teams have better teamwork, communication, and greater creativity in solving business and technical problems than homogenous work forces, and women are more likely to use teamwork and cooperative approaches that draw on the skills and resources of a broader network. The report also addresses challenges that women face – both legal and in the workplace setting – that hinder their full participation in the workforce. The report concludes with recommendations to both states and private companies on how to promote gender diversity and inclusion, with the priority recommendation to repeal laws that discriminate against women in the workplace and in private life.

By: Rosalyn Park, director of the Women’s Human Rights Program at The Advocates for Human Rights.

Expanding the Technical Expertise of Women’s Rights Defenders in 2018

Expanding the Technical Expertise of Women’s Rights Defenders in 2018

Women’s rights are human rights. We make up half the world’s population, and therefore, half its potential. But unfortunately, laws, practices, and people’s attitudes do not always take into account the legacy of discrimination in women’s lives and the fact that women and girls routinely face violence and oppression.

We know that, when we lift up women, we see a ripple effect that goes far beyond women and girls and into the world. For example, when we see greater income equality across both women and men, poverty diminishes through the generations. When women hold assets or gain income, that money is more likely to be spent on their family’s nutrition, medicines, and housing. As a result, children are healthier and the community does better. When girls pursue a secondary education, they marry later and have fewer children. Their risk of domestic violence is lower compared to child brides who are forced to marry.

It Takes a Multifaceted Approach

From ending violence against women to stopping discrimination to empowering women.

What is The Advocates for Human Rights doing about it?

  • We change laws by analyzing and commenting on laws before they are passed to make sure they are the strongest they can be.
  • We monitor and document violations of women’s rights and make recommendations to fix the pitfalls and barriers to women.
  • We build the capacity of civil society to hold their governments accountable and safeguard women’s rights.
  • We provide our expertise to the United Nations to elaborate best practice standards on violence against women and evaluate on-the-ground practices.

We Were Busy in 2018!

Ending Violence Against Women

  • We completed the final two trainings for the Russian Legal Training Academy for Women’s Human Rights. Sixteen Russian-speaking lawyers from 8 countries in the Former Soviet Union were trained on how to use UN and European mechanisms when all domestic remedies have failed. The second training, in Chisinau, Moldova, led by Jennifer Prestholdt, Theresa Dykoschak, and Amy Bergquist, addressed using UN mechanisms to defend women’s rights. Local NGO, Promo-LEX, was our host partner for this second session. Rosalyn Park, Amy Bergquist and Theresa Dykoschak completed the third session this October in Tbilisi, Georgia. Local NGO, Anti-Violence Network of Georgia, was our host partner for the third and final session.

    • Rosalyn Park and volunteer Veronica Clark attended the Women Against Violence Europe (WAVE) Network annual conference in Malta in late October. They conducted interviews on the backlash against women’s rights across Europe.

    • Robin Phillips attended the “European Network for the Work with Perpetrators of Domestic Violence” (WWP EN) conference in Prague, Czech Republic in October with Denise Gamache of the Battered Women’s Justice Project. Our participation builds on our 2016 report, Batterer Intervention Programs: Recommendations for Effective Batterer Intervention Programs in Central & Eastern Europe & the former Soviet Union.

    • At the invitation of the Organization for Security and Cooperation in Europe (OSCE), Rosalyn Park was in Astana, Kazakhstan to present on international best practices for legal reform on domestic violence. The conference, “Preventing Domestic Violence through Effective Collaboration: A New Stage of Development of Crisis Centers,” was organized by OSCE, UN Women, UNFPA, and the Union of Crisis Centers in Kazakhstan and aimed at strengthening the work of the crisis centers and raising awareness on preventing domestic violence.

Stopping Discrimination

  • At the request of the UN Group of Experts on Coal Mine Methane, The Advocates undertook research to highlight the benefits of promoting female inclusion in traditionally male-dominated industries and identify ways to support the women in these sectors. Fish & Richardson and Dechert LLP provided pro bono assistance to help conduct the research. The Advocates presented its findings in Geneva at the annual meeting of the UN Group of Experts on Coal Mine Methane. The report will be published in early 2019.

    • Theresa Dykoschak, Staff Attorney, was in Bishkek, Kyrgyzstan in early November as an expert panelist at a conference for systems actors from Central Asian countries on eliminating gender-based violence against women and girls. The conference was organized by UN Women, UNFPA, UNDP and UNICEF.

Empowering Women and Human Rights Defenders

  • Robin Phillips and Rosalyn Park trained 25 lawyers from 15 countries for the seventh round of the Women’s Human Rights Training Institute (WHRTI) in Sofia, Bulgaria. In partnership with the Bulgarian Gender Research Foundation and Equality Now, WHRTI strives to build the capacity of young lawyers from Central and Eastern Europe and the Former Soviet Union for litigation on women’s rights issues.

    • Robin Phillips and Rosalyn Park built the capacity of civil society to hold their governments accountable to effectively respond to rape and sexual violence. At the invitation of local partner Mobilizing for Rights Associates, The Advocates trained 23 civil society members and systems actors in Marrakech, Morocco in December.

    • In March we celebrated International Women’s Day, a day to catalyze activism and to focus on advancements and challenges in women’s rights and equality. Theresa Dykoschak presented on cyberviolence and Rosalyn Park facilitated a panel discussion by the keynote speaker and performing artist, Nekessa Julia Opoti and Andrea Jenkins.

Thank you to all our supporters! We look forward to continuing the work in 2019.

By: Rosalyn Park, director of the Women’s Human Rights Program at The Advocates for Human Rights.