End “Tinkering with the machinery of death”

Electric Chair DoctorHarkening back to the 1800s, Tennessee Governor Bill Haslam signed a bill into law on May 22, 2014 that brings back the electric chair – a method of execution plainly fraught with error and considerable suffering. The new law allows Tennessee to electrocute death row inmates if the state is unable to obtain lethal injection drugs or if lethal injection is deemed unconstitutional. Lethal injection is currently the standard method of execution in Tennessee, as it is in all states that permit capital punishment. Existing Tennessee law allowed inmates convicted of an offense prior to 1999 to choose electrocution, although virtually no one did. The new law changes matters in that the state will be able to impose electrocution without providing inmates with any choice. The law becomes effective on July 1, 2014, and will apply to any person sentenced to death after that date.

The Tennessee law passed largely because of current complications surrounding lethal injections. The drugs required for lethal injection are becoming increasingly scarce and difficult to obtain. Foreign government regulations, European Union restrictions, and the refusal of drug companies to sell lethal injection drugs to states have limited the supply of such drugs. As a result, states have begun experimenting with untested and unchartered drug combinations and protocols to administer lethal injections. Compounding this issue is the fact that many states, including Oklahoma, Missouri, and Texas, are obtaining drugs for lethal injection without disclosing the source. These new protocols have resulted in multiple botched executions, including that of Clayton Lockett last month.

Recent accounts of failed lethal injections are sadly reminiscent of botched electrocutions of the past. The electric chair, first introduced in the late 1800s, replaced hanging as the “preferred” method of execution. At the time, electrocution was considered a more humane alternative, but multiple accounts of the gruesome effects of electrocution make it clear that use of the electric chair is untenable. Based on empirical evidence and eyewitness testimony, Justice William Brennan described execution by electric chair as follows:

. . . death by electrical current is extremely violent and inflicts pain and indignities far beyond the “mere extinguishment of life.” Witnesses routinely report that, when the switch is thrown, the condemned prisoner “cringes,” “leaps,” and “fights the straps with amazing strength.” “The hands turn red, then white, and the cords of the neck stand out like steel bands.” The prisoner’s limbs, fingers, toes, and face are severely contorted. The force of the electrical current is so powerful that the prisoner’s eyeballs sometimes pop out and “rest on [his] cheeks.” The prisoner often defecates, urinates, and vomits blood and drool. “The body turns bright red as its temperature rises,” and the prisoner’s “flesh swells and his skin stretches to the point of breaking.” Sometimes the prisoner catches on fire, particularly “if [he] perspires excessively.” Witnesses hear a loud and sustained sound “like bacon frying,” and “the sickly sweet smell of burning flesh” permeates the chamber. This “smell of frying human flesh in the immediate neighbourhood of the chair is sometimes bad enough to nauseate even the Press representatives who are present.” In the meantime, the prisoner almost literally boils: “the temperature in the brain itself approaches the boiling point of water,” and when the postelectrocution autopsy is performed “the liver is so hot that doctors have said that it cannot be touched by the human hand.” The body frequently is badly burned and disfigured. Glass v. Louisiana, (dissent from denial of certiorari) (citations omitted).

In 2001, Georgia’s Supreme Court held the electric chair to constitute cruel and unusual punishment (Dawson v. Georgia, 554 S.E.2d 137 (Ga. 2001))

At least in part due to these problems states began turning to lethal injection, and by the 1990s it displaced the electric chair as the United States’ favored means of execution. Again, this new alternative was seen as a more humane method of execution. However, as recent botched lethal injections make grimly obvious, lethal injection is also an untenable means of execution. Rather than face this reality, Tennessee has attempted to maintain the death penalty through a regressive law that reinstates the inhumane practice of electrocution.

Tennessee’s reinstatement of the electric chair will certainly face legal challenges. And supporters of capital punishment will no doubt cite In re Kemmler, an 1890 Supreme Court decision, as support for the constitutionality of the electric chair. But the decision does not stand for such a proposition. Kemmler declined to consider the validity (and thereby constitutionality) of electrocution. Kemmler simply held that the Eighth Amendment’s protections were not applicable to state actions through the Fourteenth Amendment (a holding that the Supreme Court has since reversed). Kemmler did observe, however, that “[p]unishments are cruel when they involve torture or a lingering death . . . .”

The Eighth Amendment provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The Supreme Court has observed that the Eighth Amendment reaffirms the duty of government to respect the dignity of all persons, even those who commit heinous crimes. The Court has held that when determining whether a punishment is unconstitutional as “cruel and unusual,” it must look to the “evolving standards of decency that mark the progress of a maturing society.” In recent years, the Court has applied this standard to limit the scope of capital punishment. For example, in Atkins v. Virginia (2002), the Supreme Court held that intellectually disabled individuals could not be sentenced to death, as to do so was a form of cruel and unusual punishment that did not conform with “evolving standards of decency.” And just last month, in Florida v. Hall, the Court held that a Florida law that defined intellectual disability based strictly on a rigid IQ cutoff “creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional.” The Hall decision reiterated the Court’s commitment to the evolution of “[t]he Eighth Amendment’s protection of dignity,” which, as Justice Kennedy said in his majority opinion, “reflects the Nation we have been, the Nation we are, and the Nation we aspire to be.”

Although the Supreme Court, in Baze v. Rees (2008), declined to hold lethal injection unconstitutional, that decision rested largely on the lack of sufficient “evidence regarding alleged defects in [lethal injection] protocols.” Recent events, namely the scarcity of lethal injection drugs and botched lethal injections inflicting severe and unnecessary pain, have provided just such evidence.

So where are we now? The answer to problems with lethal injection is not to regressively turn back to the electric chair, as Tennessee has done – both of these methods of execution have been shown to be cruel and inhumane. Indeed, the search for a “humane” way to execute people is a fool’s errand, certain to fail. If we are to live up to the Constitution’s protection of human dignity and recognition of evolving standards of decency, so that we can become the nation we aspire to be, the only answer is to recognize the unconstitutionality of capital punishment. The current state of capital punishment has reached its limit, and the nation should, as Justice Blackmun suggested 20 years ago, discontinue our “tinker[ing] with the machinery of death.”

The United States ratified the International Covenant on Civil and Political Rights (ICCPR), which prohibits torture or to cruel, inhuman or degrading treatment or punishment, understood by the United States to mean the cruel and unusual treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.[1] The Advocates for Human Rights submitted a shadow report to the United Nations Human Rights Committee, the treaty body that oversees compliance with the ICCPR, detailing how the death penalty in the U.S. violates basic human rights, including the right to be free from cruel, inhuman, or degrading treatment or punishment. The Advocates was present at the Committee’s 100th session in Geneva, Switzerland in March, when the Committee took the U.S. to task on the death penalty and other issues. In its concluding Observations, the Committee urged that measures be taken to ensure that the death penalty is not carried out in a racially biased or erroneous manner and that lethal injection drugs come from legitimate sources.

[1] The United States has also ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, but issued a reservation stating, “That the United States understands that international law does not prohibit the death penalty, and does not consider this Convention to restrict or prohibit the United States from applying the death penalty consistent with the Fifth, Eighth and/or Fourteenth Amendments to the Constitution of the United States, including any constitutional period of confinement prior to the imposition of the death penalty.”

By: Steven M. Pincus, shareholder with the Anthony Ostlund Baer & Louwagie law firm. His pro bono practice has included representing death row inmates from both Louisiana and Mississippi in post-conviction proceedings. Pincus is one of the lawyers who won the release of Albert Burrell from Louisiana’s death row. Burrell was exonerated and freed from the Louisiana State Penitentiary at Angola in January 2001, after spending more than 13 years on death row for a crime that he did not commit. 

Laura Gordon, a summer associate with Anthony Ostlund Baer & Louwagie, contributed to the blog post.

Call Legislators Today; Move People Out of the Shadows

Woman covering face with hand

Lack of access to a driver’s license forces many to hide in the shadows and steeps their every day lives in fear.

We have an opportunity to make a change for the better, and the time to take action is NOW!

Lack of ability to apply for a driver’s license is one of the pressing issues identified in The Advocates for Human Rights’ new, groundbreaking report, Moving From Exclusion to Belonging: Immigrant Rights in Minnesota Today. Minnesota regulations require proof of lawful presence in the United States for all applicants for driver’s licenses and state identification cards, effectively barring undocumented immigrants from obtaining driver’s licenses and making it difficult for many people who are lawfully present to obtain licenses.[1]

There are numerous reports of individuals being arrested and booked into local jails after minor traffic stops for failing to carry a driver’s license or proof of insurance. Once in jail, ICE officers zero in, interviewing the detained to try to get admissions of unlawful presence in the United States and then turning them over to federal authorities for deportation.

The driver’s license issue stokes fear. “We have big meetings and ask people what the biggest issue is – driver’s licenses,” one community member reports. “People are so afraid of being stopped, constantly thinking, ‘When was the last time I saw my kids; will I be deported?’”[2]

It is commonly believed that the ban on driver’s licenses is a way for police and other law enforcement agencies to target immigrants.[3] This fear is well founded. “A number of our leaders have been lost because they were driving to work, arrested for not having their address on their ID, and brought to the county jail where ICE comes,” a community organizer explained.[4]

One U.S. citizen, whose husband was deported following a traffic stop, told us that her husband knew he should not drive, but he needed to go to work. Arrested in May 2013 for driving without a license, her husband was detained in immigration custody until his deportation in November.[5]

In a similar incident, a public defender described the plight of a Latino man who, after parking his car, was walking toward a restaurant, when a patrol officer stopped him and asked for identification.[6] The officer made no allegations of any violation of motor vehicle operation or suspicion of any criminal activity.[7] When the individual failed to produce a valid Minnesota driver’s license, he was arrested, booked into county jail, and turned over to ICE for deportation.[8]

Consider the person who was simply helping out a friend. He had his car parked on the wrong side of the street in order to jump-start the friend’s car.[9] The police stopped, and asked him for identification. When he presented a Mexican matricula consular, they arrested him.[10] He was booked into jail, interviewed by ICE under the Criminal Alien Program, and placed in deportation proceedings.[11] The individual had no criminal history, and no criminal charges were brought against him.[12]

Living without a driver’s license weighs heavy on undocumented immigrants, their families, and their communities. And it has far-reaching, sometimes unanticipated, consequences. For example, undocumented immigrants are reluctant to turn to law enforcement for help when they are victims of crimes, and they are cut off from participation in schools, from the broad community, and from employment.

Minnesota can end this pervasive fear. The Minnesota House has the opportunity to pass a bill, H.F. 348, “Driver’s Licenses for All,” that would allow all residents of Minnesota to apply for driver’s licenses. The Minnesota Senate has already passed the bill, and Governor Dayton supports it. House Speaker Paul Thissen has stated that he will schedule a vote, if there is enough support for its passage.

Call today and help undocumented immigrants and their loved ones move out of the shadows.

To find information on contacting your Minnesota state representative, use the District Finder on the Minnesota Legislature’s webpage: http://www.gis.leg.mn/OpenLayers/districts/.

By: Madeline Lohman, a program associate in The Advocates for Human Rights’ Research, Education, and Advocacy Program.  Lohman received her Master of Arts in Law and Diplomacy from the Fletcher School, with a focus on international human rights law and Latin America, and her B.A. in British history and literature from Harvard. Prior to joining The Advocates, she worked at a variety of nonprofits, including Freedom House in Washington D.C., International Relief Teams, Human Rights Education Associates, and PACT Bolivia.

[1] Minn. Rules 7410.0410 (2013) (as amended by 28 SR 314, Sept. 15, 2003). Even for some refugees and immigrants who are legally present in the United States, Minnesota’s restrictive driver’s license rules pose a problem. A public defender said “homeless refugees often have no documents. So, they end up getting arrested because they don’t have documents and can’t prove their identity.” Interview 124.

[2] Interview 128.

[3] Interview 139 (“people end up in contact with immigration because of driver’s license problems.”)

[4] Interview 107.

[5] Dianne Towalski, Couple’s plight spotlights need for immigration reform, The Catholic Spirit, Jan. 2, 2014, at 6.

[6] Interview 124.

[7] Interview 124.

[8] Interview 124.

[9] Interview 121.

[10] Interview 121.

[11] Interview 121.

[12] Interview 121.

 

Lives on the Line: Will Supreme Court Hold U.S. Accountable for the Death Penalty?

Video excerpting questions about the administration of the death penalty in the United States from the United Nations Human Rights Committee, as well as the responses from the United States delegation.

The United Nations Human Rights Committee took an important step last week in holding the United States accountable for its human rights record, and Friday the ball is in the Supreme Court’s court. In a March 27 press conference, the Committee issued its Concluding Observations, following analysis of the United States’ self-report on its human rights record, shadow reports from The Advocates and other civil society organizations, and an interactive dialogue between the Committee and a 32-member government delegation on March 13 and 14 in Geneva, Switzerland.

On Friday, the Supreme Court has a chance to take up one of the Committee’s key issues.

One of our U.S. civil society briefings with the UN Human Rights Committee in Geneva
One of our U.S. civil society briefings with the UN Human Rights Committee in Geneva (I am seated on the right.)

I helped author The Advocates’ shadow reports, and I was in Geneva to participate and observe, representing The Advocates. Our shadow reports, submitted to the Committee in October 2013, held the United States’ feet to the fire on the death penalty, rights of non-citizens, immigration and asylum, and violence against women. The Committee’s Concluding Observations were long and detailed, delving into a wide variety of concerns, including the issues The Advocates and its partners raised.

Two lives were on the line

We were particularly excited when the U.S. State Department announced the delegation, because it included Mississippi Attorney General Jim Hood. This is the first time a U.S. delegation for a treaty-body review has included representatives from state and local governments. They are an important piece of the accountability puzzle because many of our country’s human rights obligations need to be implemented at the state and local level.

Mississippi retains the death penalty, and Attorney General Hood had just asked the Mississippi Supreme Court to schedule two back-to-back executions for March 26 and 27–for Charles Ray Crawford and Michelle Byrom. We knew that two lives were on the line.

Committee highlights key death penalty issues

The Committee’s examination of the United States on March 13-14 and its Concluding Observations mirror some of the issues we raised in our shadow reports. They devote much attention to the death penalty, including the associated issues of exonoree compensation, racial disparities, and sourcing of drugs used for executions.

While welcoming the overall decline in the number of executions and the increasing number of states that have abolished the death penalty, the Committee shares The Advocates’ concerns about its continued use. The Committee is concerned by the high number of people wrongly sentenced to death, despite existing safeguards, and it is concerned about the racial disparities in the death penalty’s imposition—disparities that disproportionately affect African Americans and that are exacerbated by the rule that discrimination has to be proven case-by-case.

As I discuss below, just this week there have been some developments on the issue of wrongful convictions.

Committee urges federal and state governments to ensure fair compensation for people who are wrongfully convicted and sentenced to death

The Committee also notes, as we observed in our shadow report, that 16 states retaining the death penalty do not provide compensation for people who are wrongfully convicted; other states provide insufficient compensation or impose barriers to obtaining it. Consider Glenn Ford. Wrongfully convicted in Louisiana, Ford spent almost 30 years on death row for a crime he didn’t commit. As Committee expert Professor Walter Kaelin noted during the review, he was exonerated and released just days before the Committee’s review. He would have been about 34 years old when he entered death row, and was 64 when he was released. Louisiana’s compensation law allows him to collect only a maximum $330,000 for the three decades he spent on death row for a crime he didn’t commit.

The Committee also notes with concern reports that states administer untested, unregulated drugs to execute prisoners, and that state authorities withhold information about the drugs from those to be executed. There have been some late-breaking developments around the country on these drug-sourcing issues.

Committee hits hard on Mississippi’s sourcing of lethal drugs

Mississippi Attorney General Jim Hood, March 14, 2014, waits to respond to questions from UN Human Rights Committee experts about the sourcing of lethal injection drugs his state plans to use for two upcoming executions.
Mississippi Attorney General Jim Hood, March 14, 2014, Geneva, waits to respond to questions from UN Human Rights Committee experts about the sourcing of lethal injection drugs his state plans to use for two upcoming executions. (Photo by the author.)

 

We were really fortunate that Mississippi Attorney General Hood was part of the U.S. delegation in Geneva. I was there on the ground, so my colleagues at The Advocates and I were able to quickly collect facts about the upcoming executions of Crawford and Byrom that Hood had requested and fed hard-hitting questions about Mississippi’s lethal injection policies directly to the Committee experts.

Mississippi was just one week away from executing Crawford and Byrom with drugs from a compounding pharmacy. As our shadow report explains, compounding pharmacies are not regulated by the U.S. Food and Drug Administration, and Mississippi’s drugs had likely expired. These kinds of drugs carry a high risk of causing excruciating pain; one of the more recent executions to use compounded drugs resulted in the prisoner crying out during his execution, “I feel my whole body burning.”

Drug-sourcing has become a problem for states seeking to execute inmates, because many European drug manufacturers have stopped selling drugs like pentobarbital to the United States, fearing they will be used in executions. States are therefore scrambling to come up with alternative ways to concoct their execution drugs.

It was instructive that an official from a state government was part of the U.S. delegation—a first—because state governments conduct the overwhelming majority of executions. And the Committee experts repeatedly pressed Attorney General Hood on the sources of Mississippi’s lethal drugs.

You can see the questioning in the 17-minute video at the top of this post, which excerpts the relevant questions on the death penalty from the Committee and responses from the U.S. delegation.

Due Process revived: Michelle Byrom granted new trial; Charles Ray Crawford’s appeal to proceed

Soon after the Committee’s examination, Attorney General Hood’s office asserted that he asks for execution dates only “once due process has occurred.” The Mississippi Supreme Court this week twice disagreed with his characterization of due process. The court reversed Michelle Byrom’s conviction and granted her a new trial with a new judge. In its two-page order, the court emphasized that its action was “extraordinary and extremely rare.”

Seemingly oblivious to his own role in nearly executing someone the court determined was entitled to a new trial, and to the extraordinary nature of the court’s decision, Hood responded, “Our citizens can once again take comfort in the fact that we have a legal system that works for all parties involved.” And rather than accepting the court’s decision, a motion from Hood’s office complained that “[e]ach and every claim that Byrom presented to this Court had been addressed on the merits either by this Court or the federal courts on habeas corpus review,” and asked for the court to explain its decision.

On the same day, the Mississippi Supreme Court denied Attorney General Hood’s request to execute Charles Ray Crawford. The court noted that during the sentencing phase of Crawford’s trial, the prosecution introduced as an aggravating factor evidence that he had previously been convicted of rape. The court noted that Crawford’s appeal of that rape conviction was currently pending, so Hood’s request to execute Crawford was premature.

Challenges to sketchy lethal drug sourcing multiply

Last week, before the Mississippi Supreme Court rejected Hood’s requests, attorneys for Byrom and Crawford filed a lawsuit challenging the drugs that the State of Mississippi had purchased for their executions. The state had initially refused to tell Byrom and Crawford where it had obtained pentobarbital, the first drug in Mississippi’s execution procedure.

But some clever detective work by Byrom and Crawford’s legal team uncovered the source–a compounding pharmacy called Brister Brothers in Grenada, Mississippi. Judging from Brister Brother’s facebook page, the outfit specializes in “herbal dietary supplements,” including a “specially formulated men’s tonic” called “Man Up.”

Brister Brothers co-owner Ward Brister says the company is a “third-party supplier” and did not compound the pentobarbital. According to an NBC report, “Byrom’s legal team presumes Brister purchased the raw ingredients for the drug and that the state intends to have it compounded for the executions.”

The lawsuit alleges that the State of Mississippi will secretly compound the drugs at an unknown time and place, by people with unknown training and credentials. The danger, a lawyer for Byrom and Crawford explains, is that “[i]f the state’s pentobarbital is contaminated or sub-potent, prisoners will be conscious when the second and third drugs are administered, and they will experience a torturous death by suffocation and cardiac arrest.”

U.S. Supreme Court could act soon

Front doors of the U.S. Supreme Court
Front doors of the U.S. Supreme Court (Photo by the author.)

Also last week, Missouri executed a man using secretly sourced pentobarbital. His attorneys sought a stay from the U.S. Supreme Court, arguing that Missouri’s “secretive process prohibited the public from knowing exactly how the drug was made and whether it could cause pain and suffering for the inmate.”

The Supreme Court denied the motion for a stay on a 4-5 vote. A similar challenge garnered three votes in February. And a federal judge in Texas just yesterday issued two stays of execution over challenges to that state’s drug secrecy laws. But just hours later, an appeals court vacated her order, allowing the executions to proceed.

Tomorrow, the U.S. Supreme Court will consider for the second week in a row whether to review a case raising similar drug-sourcing issues in Louisiana. And it will also consider another Missouri execution case raising a similar challenge. Five Justices must vote to issue a stay of execution, but four votes is all it takes to grant certiorari, so last week’s close vote on the Missouri execution might be a signal of hope for the Louisiana case and others like it.

(Here’s a tidbit for readers interested in the obscure, perplexing Supreme Court “arithmetic of death.” In pending execution cases in which four Justices vote to grant review, there apparently had been an informal practice of a fifth Justice granting a “courtesy” vote for stay, so that the execution wouldn’t render the case “moot.” Supreme Court watchers say this practice ended by 1990. As a result, an inmate may be executed despite the Court’s decision to hear the case, which seems to be what happened last week.)

Committee issues strong recommendations on lethal drug sourcing

In its Concluding Observations released last week, the UN Human Rights Committee urges the United States to

“ensure that lethal drugs for executions originate from legal, regulated sources, and are approved by the U.S. Food and Drug Administration (FDA) and that information on the origin and composition of such drugs is made available to individuals scheduled for execution.”

If the Supreme Court grants cert. in the Louisiana case, it will be the first body of the U.S. government to take action consistent with the UN Human Rights Committee’s recommendations issued last week, upholding our country’s human rights treaty obligations. It would be a great start to the long process of working on implementation of the Committee’s recommendations.

Committee issues further recommendations on the death penalty

The Committee also recommends that the United States consider establishing a moratorium on the death penalty at the federal level, and, on the 25th anniversary of the Second Optional Protocol to the Covenant aiming at the abolition of the death penalty, consider acceding to the Protocol.

In summary, the Committee recommends that in addition to establishing a moratorium, acceding to the Protocol, and ensuring that legal drugs come from transparent, regulated sources, the United States:

1. take measures to effectively ensure that the death penalty is not imposed as a result of racial bias;

2. strengthen safeguards against wrongful sentencing to death and subsequent wrongful execution by ensuring inter alia effective legal representation for defendants in death penalty cases, including at the post-conviction stage;

3. ensure that retentionist states provide adequate compensation for the wrongfully convicted; and

4. engage with retentionist states with a view to achieving a nationwide moratorium.

As litigation challenging the death penalty around the country continues, The Advocates for Human Rights will work with civil society organizations and state and federal governments to press the Committee’s recommendations and work on implementation. We will continue to raise these and other issues during upcoming United Nations reviews, such as those scheduled by the UN Committee on the Elimination of Racial Discrimination in August, the UN Committee Against Torture in November, and the UN Human Rights Council’s Universal Periodic Review of the United States next January.

This post is one in a series of posts on the UN Human Rights Committee’s review of the United States.

More posts in this series:

Live from Geneva! It’s Crunch Time for the UN’s Examination of the U.S. Human Rights Record (The Advocates Post)

Access to Justice and the Bringing Human Rights Back Home Challenge (Human Rights At Home Blog)

Decades Later, No Justice for Kent State Killings (ACLU)

U.S. Human Rights Record Undergoes International Scrutiny (ACLU)

By: Amy Bergquist, staff attorney with the International Justice Program at The Advocates for Human Rights.

Why is U.S. Border Patrol Shooting Rock-Throwing Teenagers?

Ablog-iceabuse-500x280my Bergquist, staff attorney with The Advocates for Human Rights, is in Geneva this week for the United Nations Human Rights Committee’s review of the United States’ human rights record.

She is part of a delegation coordinated by the U.S. Human Rights Network, a network of organizations and individuals working to build and strengthen a people-centered human rights movement in the United States.

The following post, which originally appeared on the ACLU Blog of Rights, is just one of the blog entries that network members plan to write about the U.S. review.

By Vicki B. Gaubeca, ACLU of New Mexico, at 12:15pm

Sixteen-year old Jose Antonio Elena Rodriguez was walking near the U.S.-Mexico border in Nogales, Sonora, Mexico to meet his brother for a late-night snack when he was fatally shot by U.S. Border Patrol agents. An autopsy later showed the body of the teenager had been riddled with 10 bullets that had entered his back and head. Mexican officials also said it seemed there were two agents who shot at least 14 times. More than a year later, the U.S. government has yet to issue a public explanation of what happened, or to release stationary video footage, except to allege that he was part of a group throwing rocks at Border Patrol agents who were up on a hill, behind the 60-foot tall border fence.

This week, the ACLU of New Mexico Regional Center for Border Rights is joining an ACLU delegation and participating as a civil society member in a review of the U.S. record on human rights under the International Covenant on Civil and Political Rights, in Geneva, Switzerland.

A chief concern presented to the U.N. Human Rights Committee has been the rash of lethal use-of-force incidents at the border, including the death of Elena Rodriguez. Since January 2010, at least 28 civilians have died following an encounter with U.S. Customs and Border Protection (CBP) personnel; 27 = died as the result of use of force. These deaths include numerous cases of individuals being shot in the back, across international borders, and in response to alleged rock throwing. One-third of the deaths are of U.S. citizens and one-third of minors, including three boys aged 15, 16 and 17, who were fatally shot while standing on the Mexican side of the border.

CBP’s fundamental lack of oversight, accountability and transparency has created a culture of impunity for agents who violate agency policy or their domestic and international legal obligations. In addition, Border Patrol rejected some core changes to its use-of-force policies recommended by national law-enforcement experts at the Police Executive Research Forum (PERF), including how to respond to rock and vehicular assaults, and has refused to release those recommendations publicly.

In addition to providing testimony at informal and formal briefings, we hand-delivered the Human Rights Committee a letter signed by more than 75 border-wide and national organizations and individuals that demanded, among other key items, that CBP’s use-of-force policy and practice fall in line with the highest professional law enforcement standards and comply with international human rights standards on law enforcement conduct, with particular emphasis on improving accountability and increasing transparency with the general public and directly impacted families and individuals.

It is our hope that international pressures will result in closure for the family of Elena Rodriguez and that improved use-of-force policies and training will prevent further unnecessary deaths.

 

U.S. Human Rights Record Undergoes International Scrutiny

Amy Bergquist, staff attorney with The Advocates for Human Rights, is in Geneva this week for the United Nations Human Rights Committee’s review of the United States’ human rights record. She is part of a delegation coordinated by the U.S. Human Rights Network, a network of organizations and individuals working to build and strengthen a people-centered human rights movement in the United States.

After more than a year of preparation over the phone, email, and even in webinars, Bergquist and her delegation colleagues got together Sunday to finally meet face to face. “Wow what a crowd!” Bergquist said. “More than 60 of us crammed into a hotel conference room (and the adjoining hallway) for a 3-hour meeting to finalize our preparations. The room was full of energy and excitement!”

Group members spent the evening polishing 2-minute working group statements, which were delivered in a formal briefing to the Human Rights Committee on Monday. And they plotted out their additional informal briefings with the committee and side events that target a broader audience in Geneva. They have an action plan for blogging, live-tweeting, and doing other social media outreach, too.

The following post, which originally appeared on the ACLU Blog of Rights, is just one of the blog post series that network members plan to write about the U.S. review.

blog_un

U.S. Human Rights Record Undergoes International Scrutiny

By Jamil Dakwar, Director, ACLU Human Rights Program
(This post and accompanying image originally appeared on the ACLU Blog of Rights on 03/09/14)

This week, the United Nations Human Rights Committee will review U.S. compliance with its obligations under the International Covenant on Civil and Political Rights, ratified by the U.S. in 1992. The review will cast light on a dark underbelly of American exceptionalism — our refusal to acknowledge that human rights treaties have effect overseas. Unlike most of the world (the only other exception being Israel), the United States continues to claim that human rights treaties don’t apply to U.S. activities overseas.

The review is a rare spotlight on human rights issues inside the United States, one of the few occasions where our government is forced to speak the language of human rights – rather than its usual constitutional and civil rights rhetoric – and explain its own violations. It is also attracting worldwide attention—so much so that the committee had to reserve a bigger hall to accommodate the sizable U.S. government delegation and more than 70 human rights advocates and observers who will be in attendance at the six-hour session. The entire U.S. ICCPR review will be broadcast live on UN TV and take place on March 13 and 14.

The review will shine an international spotlight on significant human rights issues in the United States: the rights of indigenous peoples, the death penalty, solitary confinement, voting rights, migrant and women’s rights, NSA surveillance and targeted killings.

The ICCPR protects basic human rights, such as freedom from torture and abuse, freedom from discrimination, the right to life and effective remedy, the right to privacy and freedom of expression, and many more. Since ratifying the treaty in 1992, the U.S. has been bound to uphold these fundamental protections and must undergo periodic reviews. The last time the United States appeared before this committee was in July 2006, when the Bush administration denied participation in numerous acts of torture while operating a web of secret CIA detentions abroad.

The ACLU submitted a shadow report to the committee highlighting examples of accountability gaps between U.S. human rights obligations and current law, policy, and practice. Although the U.S. human rights record has shown marked improvement since its last review by the committee in 2006, most notably in the areas of LGBT rights and enforcement of civil rights by the Department of Justice, U.S. laws and policies remain out of step with international human rights law in many areas. In addition, the ACLU provided an update to the issues covered in our September submission to the committee, which addresses serious rights violations that have emerged in recent months. The report covers:

Anti-Immigrant Measures at the State and Federal Levels

U.S.-Mexico Border killings and Militarization of the Border

Solitary Confinement

The Death Penalty

Accountability for Torture and Abuse During the Bush Administration

Targeted Killings

NSA Surveillance Programs

More than ever, the U.S. is facing an uphill battle to prove its bona fides on human rights issues. The United States is not only seen as a hypocrite, resisting demands to practice at home what it preaches abroad, it is now increasingly seen as a violator of human rights that is setting a dangerous precedent for other governments to justify and legitimize their own rights’ violations.

While addressing United States’ breaches of privacy rights last January, President Obama said:

And I also know that in this time of change, the United States of America will have to lead. It may seem sometimes that America is being held to a different standard. And I’ll admit the readiness of some to assume the worst motives by our government can be frustrating. No one expects China to have an open debate about their surveillance programs, or Russia to take privacy concerns of citizens in other places into account. But let’s remember: We are held to a different standard precisely because we have been at the forefront of defending personal privacy and human dignity.

The ICCPR review process presents the administration with an opportunity to put President Obama’s words into action, not only in the context of privacy rights, but all other rights guaranteed by the ICCPR. This review will be the last in his term as president and will, in part, determine his human rights legacy. We look forward to briefing the committee members and observing the U.S. government review later this week, and hope that the concerns and recommendations raised by the ACLU and other groups will be meaningfully addressed by the U.S. government. The world will be watching.


Watch for blog posts about these subjects:

  • Live from Geneva! It’s Crunch Time for the UN’s Examination of the U.S. Human Rights Record
  • Human rights and mental health in the U.S.
  • Anti-immigrant measures, U.S.-Mexico border militarization, solitary confinement, death penalty, torture and abuse during the Bush administration, targeted killings, NSA surveillance program
  • Human rights defenders
  • Voting rights, Stand Your Ground laws
  • Human Rights Committee review of the U.S. (March 13-14)
  • Wrap up and overview of the week

Live from Geneva! It’s Crunch Time for the UN’s Examination of the U.S. Human Rights Record

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The Advocates for Human Rights has a booth at the Minnesota State Fair every year. We have a wheel that fairgoers spin to take a shot at answering a question on a human rights topic. Last year, one question was a real stumper: “When will the United Nations next review the human rights record of the United States?” “Never” was the common response. The correct answer? Now. This week, a 32-person delegation of U.S. officials will appear before the UN’s Human Rights Committee in Geneva, Switzerland, to discuss human rights here at home.

I’m in Geneva this week as part of a delegation coordinated by the U.S. Human Rights Network, a network of organizations and individuals working to build and strengthen a people-centered human rights movement in the United States. After more than a year of preparation over the phone, email, and even in webinars, we all got together Sunday to finally meet face to face. And wow what a crowd! More than 60 of us crammed into a hotel conference room (and the adjoining hallway) for a 3-hour meeting to finalize our preparations. The room was full of energy and excitement!

US civil society groups and tribal nation leaders preparing Sunday evening for the Human Rights Committee's review of the United States
US civil society groups and tribal nation leaders preparing Sunday evening for the Human Rights Committee’s review of the United States (Photo credit: Jamil Dakwar, ACLU)

It’s crunch time for our network. We spent the evening polishing 2-minute working group statements, which we will deliver in a formal briefing to the Human Rights Committee Monday around noon. And we plotted out our additional informal briefings with the committee and side events targeting a broader audience here in Geneva. We have an action plan for blogging, live-tweeting, and doing other social media outreach, too. This post is just one of the first in a series that network members will be posting this week.

UN badge 002
My UN badge

With the help of some teachers and their students, I’ll field some questions students have about how the international human rights system works. Here are the questions they’ve sent me, and my answers.

Switzerland? Isn’t the UN in New York?

The United Nations’ headquarters is in New York City. That’s where the Security Council and General Assembly meet. But the UN has three regional offices: Vienna, Austria; Geneva, Switzerland; and Nairobi, Kenya. The Geneva office is the largest of the three, and it hosts most of the UN’s human rights work.

Does the United States have to do what the UN says?

Kind of. The UN’s human rights bodies don’t have a police force to send to the United States to enforce human rights laws. Instead, these UN bodies ask our government questions and then publish “Concluding Observations.” It’s a politely worded report that describes “Positive aspects” and then presents “Principal subjects of concern and recommendations.” For example, one of these bodies in 2006 recommended that the United States “ensure the right of residents of the District of Columbia to take part in the conduct of public affairs, directly or through freely chosen representatives, in particular with regard to the House of Representatives.”

Why do these UN bodies get to tell the United States what to do?

Because the United States agreed to let them! Most international human rights law is based on treaties, which are kind of like contracts. If a government signs and ratifies a treaty, it agrees to follow the treaty. It’s just like if you sign a lease, you agree to pay your rent on time and follow the other terms of your lease. And human rights treaties typically say that any country that ratifies the treaty has to report to the UN from time to time to show that the country is following the treaty. The UN calls a country that has ratified a treaty a “State party” to the treaty.

What exactly are these “UN bodies”?

There is a committee for each human rights treaty . For example, the UN’s Committee Against Torture oversees the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The UN’s Human Rights Committee is responsible for the International Covenant on Civil and Political Rights. Each committee is made up of independent experts from around the world.

How does it all work?

Every 4-5 years, each State party has to file a written report with the relevant committee. The report is supposed to show how the State party is following the treaty. It’s kind of like a “self-evaluation.” As you might expect, these self-evaluations sometimes ignore or gloss over human rights problems. So the committee identifies some issues and questions it is concerned about, and the State party then files written responses to those issues and questions. Then, a delegation from the State party’s government travels to Geneva to go head-to-head with the committee. The committee experts ask questions for six hours, or even longer. And then a few weeks later, the committee issues “Concluding Observations.” The State party is then supposed to implement the committee’s recommendations, and report back again in 4-5 years on how things are going.

Do State parties actually do what the Committee says?

Sometimes. The committees really have to rely on the power of persuasion. In some cases, the State party just says it can’t do what the committee recommends. For example, even if the U.S. Federal Government wanted to follow that 2006 recommendation and give residents of the District of Columbia a voting member of the House of Representatives, it’s not clear that it could do so under Article I, Section 2 of the Constitution. In other cases, a State party may disagree with the Committee’s interpretation of the treaty’s obligations–just like you might disagree with your landlord about some language in your lease. But in many cases, the State party makes a genuine effort to implement the committee’s recommendations.

Can regular people participate, or is it just between the government and the UN?

Efia Nwangaza of the Malcolm X Center for Self Determination, at the Sunday planning meeting
Efia Nwangaza of the Malcolm X Center for Self Determination, at the Sunday planning meeting

There are many ways that ordinary people can get involved in human rights at the UN. In fact, “civil society” plays a critical role. If a State party files a sugar-coated report, civil society groups can flag important issues for the committee. Civil society groups can also write their own independent reports to share their own views and experiences about the human rights situation on the ground. And civil society groups meet with committee members before they meet with the government delegation in Geneva. The Advocates for Human Rights has “special consultative status” with the United Nations, which means that staff members like me can get UN grounds passes to attend sessions in person.

Speaking of Geneva, what’s going on there this week?

Palais Wilson
Palais Wilson

This is the time human rights nerds like me have been waiting for!

  • First up, on Monday civil society organizations and leaders of tribal governments have a “formal briefing” at the Palais Wilson with all of the members of the Human Rights Committee. We’ll talk with them about our concerns, they’ll share what they’re most interested in and any questions they have. The purpose of this meeting is to make sure the Committee experts are ready to grill the U.S. Government delegation with six hours of tough questions later this week.
  • Next, on Tuesday morning we’ll have a longer informal briefing with the committee where tribal leaders can have more opportunity to dialogue with the Committee. We’ll also give the Committee answers to any questions they raised on Monday, and some people who have been personally affected by human rights violations will be there to testify.
  • On Wednesday afternoon, we’re all invited to the U.S. Embassy to the United Nations in Geneva for a “civil society consultation.”

    Palais des Nations
    Palais des Nations
  • On Thursday, the action moves up the road to the Palais des Nations. The Committee has a quick “informal briefing” with civil society groups, and then from 3-6 pm, it starts asking the U.S. Government Delegation questions. You can watch a live webcast of the questioning, or check out the video archives later.
  • On Friday, from 10-1, the questioning continues. If the Committee doesn’t have time to cover everything it wants to discuss, it may take a break and then ask the United States to come back for a few more hours after lunch.
  • Then we all go home and wait for about two weeks for the Committee to publish its Concluding Observations.

Why are you there?

The Advocates is part of civil society, and we submitted three independent reports to the Human Rights Committee. The first is about the detention of non-citizens, the second is about the death penalty, and the third is about domestic violence and “Stand Your Ground” laws. So I’m in Geneva to meet with the Committee and raise awareness about the issues we covered in our reports. I’ll answer any questions Committee members have, and I’ll encourage the U.S. Government delegation to accept and implement any recommendations the Committee makes that relate to our reports.

Could you recommend reading materials, videos, or other learning tools that will expose my students to human rights issues all over the world?

Sure! First, be sure to take a look at all of The Advocates’ great human rights education resources for teachers and students. There are some good videos on the UN Human Rights Youtube channel, including, relevant to my time in Geneva, What is a Human Rights Treaty Body? and What is a Human Right? The UN also maintains information on a long list of human rights issues. The UN also offers live and archived webcasts of its proceedings, including sessions of treaty bodies like the Human Rights Committee. The UN also publishes training and education materials.

How can we learn more?

I’ll be in Geneva all week, and members of the U.S. Human Rights network will be livetweeting and updating with new blog posts as soon as we can. If you have questions or want us to talk about certain things, please send me an email at abergquist@advrights.org. We hope to hear from you!

This post is one of the first in a series of posts by U.S. civil society groups in Geneva this week for the UN Human Rights Committee’s review of the United States.

More posts in this series:

Lives on the Line: Will Supreme Court Hold U.S. Accountable for Death Penalty? (The Advocates Post)

Access to Justice and the Bringing Human Rights Back Home Challenge (Human Rights At Home Blog)

Decades Later, No Justice for Kent State Killings (ACLU)

U.S. Human Rights Record Undergoes International Scrutiny (ACLU)

By: Amy Bergquist, staff attorney with the International Justice Program at The Advocates for Human Rights