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Bringing the worldwide movement to end the arbitrary death penalty to the U.S. Supreme Court

Amy
Connie Numbi of the Foundation for Human Rights Initiative in Uganda & The Advocates’ Amy Bergquist serve on the Steering Committee of the World Coalition Against the Death Penalty

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.

amicus brief

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 amicus brief sheds light on the connection between Article 6 of the International Covenant on Civil and Political Rights—a treaty the United States ratified in 1992—and McKinney’s case. Our brief notes that the Human Rights Committee’s comments rejecting the mandatory death penalty are rooted in a consensus that began with a decision of the U.S. Supreme Court in 1976, which ruled that a mandatory death penalty law in North Carolina was unconstitutional.

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.

Click these links to learn more about the death penalty in Uganda and Malaysia, and The Advocates’ death penalty work.

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.

Activities for Human Rights Day 2015

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Each year on December 10, people all around the world celebrate Human Rights Day.  

The date was chosen to honor the United Nations General Assembly‘s adoption on 10 December 1948 of the Universal Declaration of Human Rights (UDHR), the first global statement of international human rights principles.

This year’s Human Rights Day is devoted to the launch of a year-long campaign for the 50th anniversary of the two International Covenants on Human Rights: the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, which were adopted by the United Nations General Assembly on 16 December 1966.

The “Our Rights. Our Freedoms. Always.” 50th anniversary campaign will highlight the theme of rights and freedoms — freedom of speech, freedom of worship, freedom from want, and freedom from fear — which underpin the International Bill of Human Rights are as relevant today as they were when the Covenants were adopted 50 years ago.

Below are some ideas for simple yet meaningful ways that families can celebrate Human Rights Day by learning about the rights and responsibilities that we all share as human beings.

For more ideas, check out my past Human Rights Day posts:

10 Things to Do With Your Kids on Human Rights Day (2011)

10 More Things to Do With Your Kids on Human Rights Day (2012)

Human Rights Activities To Do With Your Kids (2013)

Human Rights Activities For You & Your Kids (2014).

The UDHR in a word cloud. From Article 26 website.
The UDHR in a word cloud. From Article 26 website.

1. Learn about the Universal Declaration of Human Rights.  Download an illustrated version of the UDHR on the UN website here. You can also find a simplified version of the UDHR here.

2. Join the UNICEF Kid Power Team and work together to help end global malnutrition.Globally, one in four children is malnourished, about 159 million children worldwide. 50 million children suffer from acute malnutrition resulting in about one million children dying each year. And 16 million children suffer from the most life-threatening form of malnutrition, severe acute malnutrition (SAM), which can require specialized feeding care such as treatment with Ready-to-Use Therapeutic Food (RUTF) packets.


Families can join the UNICEF Kid Power Team by purchasing a UNICEF Kid Power Band—available at Target—and downloading the free companion UNICEF Kid Power App. Kids go on missions to learn about new cultures and earn points by getting active. Points unlock funding from partners, parents and fans, and funds are used by UNICEF to deliver lifesaving packets of therapeutic food to real, severely malnourished children around the world. In the pilot project earlier this year, more than 11,300 kids in Boston, Dallas and New York joined the UNICEF Kid Power Team and took enough steps to walk around the world more than 23 times. These kids earned enough Kid Power Points to unlock 188,850 therapeutic food packets, enough to save the lives of 1,259 children. 

3. Stand up for the rights of girls everywhere. Girl UP, the United Nations Foundation’s adolescent girl campaign, engages girls to take action. Girl UP’s current advocacy priority is improving access to quality education for girls worldwide, especially those in vulnerable settings. Worldwide, 140 million children are not in school – more than half are girls. Learn more about the impact of education of girls on society here.  Learn about ways you can advocate (no matter your age) here.

4. Sing your own song! Amandla! is a song that was a sung by Black South Africans during apartheid to give them strength. Amandla is a Zulu and Xhosa word meaning “power”. It was also the name of a documentary about the role of music in apartheid South Africa that won multiple awards at Sundance in 2003.  The chorus is:

We will fight for the right to be free
We will build our own society
And we will sing, we will sing
We will sing our own song

The band UB40, which strongly advocated against apartheid in the 1980s, did a popular cover of the song Amandla!

Amnesty International created a full lesson plan around the song.  Check out the full lesson, which encourages kids to sing along with the song.  Take out specific words and have your kids fill in the blanks.  Kids have such a great sense of justice that their words may surprise you! Then have your kids draw the images that the song evokes and present their art projects to others.

(Fun fact: Amandla Stenberg, who played Rue in The Hunger Games, was named for the word and its meaning.) 

5. Play Rights of the Child Pictionary. Based on the game Pictionary, each child sketches his or her interpretation of one article of the Convention on the Rights of the Child. When all are done, you can take turns examining the sketch and guessing the article it represents. For this and other ideas for teaching children’s rights through art, click here.

6. Play Human Rights Musical Chairs.  This lesson, developed by The Advocates for Human Rights, is a game similar to musical chairs, but with a writing twist. Select magazine and newspaper images that you feel effectively demonstrate a particular article of one of the 30 articles of the UDHR. For example, if the picture shows a scene where a group of children, boys and girls, are happy and walking with backpacks on their way to school, you could discuss Article 26 the “Right to Education” and Article 2 “Freedom from Discrimination” as both girls and boys are attending school.

Tape one image onto each chair along with one sheet of paper. Select music to indicate the starting and stopping of the writing. Tell the kids that they can write about whatever the image makes them think of. When the music starts, have the kids write the beginning of the story based on the image.  After a few minutes, stop the music and have them move to the next image. Start the music and have them write the middle of the story based on that image.  Encourage them to follow the storyline already in progress but allow them to get creative. Stop the music and have them move to the third image and write the ending. For more ideas, check out The Advocates for Human Rights’ resources for educators.

7. Learn more about famous and not-so-famous human rights heroes. There are many great biographies of famous activists (I Am Malala is one you may enjoy) but there are also many other inspiring peace and social justice activists to learn about.

Better World Heroes is an informational website which includes the biographies of 1000 heroes who have fought to build a better world.

The Giraffe Heroes project tells the stories of “Giraffe Heroes” – people who stick their necks out for the common good.

For more resources, download The Advocates for Human Rights’ Rights Sites newsletter: Human Rights Heroes edition.

8. Read Dr. Seuss’ The Sneetches as part of an anti-racism, anti-bullying activity. Teaching Tolerance has developed a great simulation activity.  The simulation exercise can help children understand the emotional impact of unfair practices. The follow-up activity on discrimination helps ensure that students understand that the goal is to change those practices, not the characteristics that make us different from one another. Check out all of Teaching Tolerance’s resources here.

9. Take a test together.  The Representation Project has developed two quizzes to examine how mainstream media shapes our beliefs and practices about women and girls, as well as what it means to be a man.  For families with preteens and teens who are interested starting a conversation about this issue, the Representation Project’s family resources can be found here.

#TheRepTest is a media literacy tool, sparking conversation about overall representation in film, television, and video games and encouraging more diversity in the entertainment industry.

The #BeyondTheMask quiz lets you grade male characters as role models.

10. Have a conversation with your family about what it means to be “free and equal”.  Watch this video with your kids and discuss their reactions.

What else does it mean to be “free and equal”? the United Nations recently launched a new campaign called “Free & Equal” for lesbian, gay, bisexual and transgender equality.  There are fact sheets, information about a film series, and much more on the Free & Equal website.  You can even check out the very first Bollywood video for gay rights.  The UN is asking that you share if you believe everyone should be welcomed into their family’s hearts, regardless of their sexual orientation.

The 2015 “Faces” video from the Free & Equal campaign celebrates the contributions that millions of lesbian, gay, bisexual, transgender and intersex people make to families and local communities around the world. The cast features “real people” (not actors), filmed in their workplaces and homes — among them, a firefighter, a police officer, a teacher, an electrician, a doctor and a volunteer, as well as prominent straight ally and UN Secretary-General Ban Ki-moon. Can you see past the label?

If you are not sure how to talk to your kids about LGBT issues, check out these Human Rights Campaign resources that provide the language and information needed to discuss lesbian, gay, bisexual and transgender people and issues in an age appropriate way with children and youth.

I hope you and your families have a great Human Rights Day 2015!  If you have other ideas for human rights activities, please share them with us!

Jennifer Prestholdt is Deputy Director and International Justice Program Director at The Advocates for Human Rights. This post was originally published on World Moms Blog. 

My run-in with hate speech at a Minnesota Vikings game

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The following opinion editorial written by The Advocates for Human Rights’ Refugee and Immigrant Program Director Deepinder Mayell was published in the December 9 Star Tribune.

 

 

It was my first Minnesota Vikings game and my first NFL game. I am not new to football, though. As an undergrad at Boston College, I went to many Eagles games, and I played junior varsity football. I knew what to expect on the field. I was excited, and, as I found my seat, I thought about bringing my family to a game in the new stadium.

What I didn’t expect was for a man to push aside other people and point his finger in my face, demanding to know if I was a refugee. He needed to make sure I wasn’t a refugee, he said. There was anger in his face and vehemence in his accusation.

I was stunned. He didn’t know anything about me. We were complete strangers. But somewhere in his mind, all he saw was a terrorist, based on nothing more than the color of my skin. He was white, and I wasn’t. He didn’t see anything else.

He didn’t know that I have lived in Minnesota for the past four years, that I was born and raised in New York and that the words “Never Forget” may mean more to me than to him. He didn’t know that when I went home and my children jumped on top of me and asked “How was the game?” that I’d be holding back tears as I told them about racism instead of touchdowns. He didn’t know that I am an attorney and the director of the Refugee and Immigrant Program at the Advocates for Human Rights.

It was also abundantly clear that he didn’t know about refugees, dignity or freedom. He didn’t know that if he were speaking to a refugee, he’d be speaking to someone who feared persecution due to their race, religion, nationality, political opinion or social group. He didn’t know that many refugees are victims of some of the worst human-rights abuses occurring on the planet, ranging from being sold into sexual slavery to being killed in mass executions. He didn’t know that being a refugee is a badge of resilience and honor, not danger.

In that moment, I was terrified. But what scared me the most was the silence surrounding me. As I looked around, I didn’t know who was an ally or an enemy. In those hushed whispers, I felt like I was alone, unsafe and surrounded. It was the type of silence that emboldens a man to play inquisitor. I thought about our national climate, in which some presidential candidates spew demagoguery and lies while others play politics and offer soft rebukes. It is the same species of silence that emboldened white supremacists to shoot five unarmed protesters recently in Minneapolis.

The man eventually moved on. I found security staff, and with a guard and friend at my side, I confronted the man on the concessions level. I told him that what he said was racist and that what he did scared me. I told him that I was afraid to return to my seat and that I was afraid that people were going to hurt me. I told him that what he did makes me afraid for my children.

Somewhere during that second confrontation there was a change. Maybe some humanity crept inside him. Maybe he felt the presence of the security guard. While he said he was sorry, his apology was uttered in an adolescent way that demonstrated that he felt entitled to reconciliation as much as he felt entitled to hurl hatred. He wanted to move on and enjoy the game. I told him that I didn’t want his apology. Rather, I wanted him ejected from the stadium because he made me feel unsafe.

The security staff talked with him privately. I don’t know what was said. He was not removed. Apparently, the Vikings do not think that hate speech and racism are removable offenses. My gameday experience was ruined. I tried to focus on the players, but I continued to take glances at the man who sat just a few yards away. I couldn’t help looking over my shoulder, wondering if he had inspired someone else. It was clear that I would not be bringing my family to a Vikings game.

I am deeply troubled by what happened to me. Hate speech is a warning for us all. It is like smoke. Imagine your office, church or stadium filling with smoke, while everyone acted like nothing was wrong. That smoke eventually becomes an unstoppable fire, the type of fire that has consumed people around the world to commit horrendous crimes, the type of fire that can bring down the entire building. As President Obama stated in his address from the Oval Office on Sunday evening: “[I]t is the responsibility of all Americans — of every faith — to reject discrimination.” It is up to us all, from individual bystanders to institutions as big as the Vikings, to respond to and to stop the spread of racism and hate.

 Deepinder Mayell is an attorney and director of The Advocates for Human Rights’ Refugee and Immigrant Program.

 

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