Human rights begin at home

Opinion, NakedLaw, Rights

International Human Rights Day is Wednesday, December 10. Many of us think of human rights as concerns for foreign countries – not ours. Yet groups like Amnesty International and Human Rights Watch have increasingly pointed to American abuses of international norms in our policing, our prisons, and, as we saw yesterday, our military and intelligence actions abroad. In some cases, we’ve made gains. In others, much work remains to be done.

In honor of International Human Rights Day, here’s my selective roundup.

Mike Brown and Eric Garner cases: Human rights disasters

“I condemn the excessive use of force by the police [in Ferguson] and call for the right of protest to be respected. These scenes are familiar to me and privately I was thinking that there are many parts of the United States where apartheid is flourishing.”  — United Nation’s High Commissioner for Human Rights, Navi Pillay, on the heavily militarized police response to Ferguson protests.

In Ferguson, Missouri, citizens had long complained of racially biased policing. After the shooting of Mike Brown, the world’s cameras focused on the town, and captured images of excessive force and bullying tactics – precisely what the demonstrators were protesting against.

Amnesty International issued a damning report, condemning not only the use of lethal force against an unarmed teenager by armed police officer Darren Wilson, but also for the excessive police response to the community’s right to protest. The police department’s often confused and conflicting rules about when, where and how people could express their First Amendment rights, officers’ intimidation and threats to protestors, use of rubber bullets, tear gas, stun grenades and sound cannons all came under attack, as did the city’s restrictions on journalists covering the demonstrations.

One irksome facet of the coverage was when reporters stated that police were “allowing” protestors to march. Our Constitution, actually, is what allows freedom of speech, assembly and to seek redress of grievances. The job of police is to protect the community – including peaceful protestors.

And those were only the abuses going on in public. Inside the halls of justice, prosecutor Bob McCulloch refused to recuse himself, despite over 70,000 community members signing a petition demanding it. He then refused to file charges directly.

Instead, McCulloch told an already convened grand jury that they would now be given a very different kind of case, and proceeded to put on a highly unusual and extraordinarily biased presentation of evidence that favored Officer Wilson, including:

  • Allowing Wilson to simply tell his story without being confronted with evidence that was inconsistent with his statements;
  • Asking tough questions of witnesses adverse to Wilson but not Wilson himself;
  • Allowing his assistant prosecutors to incorrectly instruct the grand jury on the wrong law at the outset of the proceeding and then correcting this error only at the end in a confused, garbled manner.

If there was any doubt about the legal system’s ability to bend over backwards to protect police shooters of unarmed African Americans stopped for petty infractions, the following week’s “no indictment” decision in the Eric Garner case silenced those doubts.

A Staten Island police officer, accompanied by at least four other cops, used a banned chokehold method on the unarmed Mr. Garner, which led to Garner’s death. The entire confrontation was captured on film. Officer Pantaleo, Garner’s killer, had two recent complaints against him for improper conduct, including strip searching two black men in broad daylight and “tapping” their testicles. Notwithstanding a clear, shocking video, no charges.

After that stunning announcement, the New York prosecutor did not ask that the transcripts and evidence be released. I can only assume that he did not want to be subject to the scrutiny that followed the Ferguson prosecutor’s poor performance. After this very public killing, a secret proceeding: is this America?

Ferguson and Staten Island are not alone. Nationwide protests and “die ins” have followed, because police shootings of black and brown Americans are everywhere. While no one officially counts all the police killings in America – a travesty in and of itself – estimates are that at least 500 Americans die at the hands of police annually, compared to less than ten in most other developed nations.

The ray of hope in this story is that the conscience of America has awakened. If the George Zimmerman injustice was not enough, Ferguson followed. For those who felt that case was too complicated, the choking death of Eric Garner on video followed quickly thereafter. Many people are now calling for solutions, including the appointment of independent special prosecutors for police shootings, the requirement of badge cams for all law enforcement, and stepping up training of nonlethal means for police to handle citizens.

And police must be trained to eradicate their explicit or implicit racial biases. “The persistent and widespread pattern of racially discriminatory treatment by law enforcement officers” was condemned by Amnesty International. The organization points out that across the United States unjustified stops and searches, ill treatment and excessive, and sometimes lethal, use of force are disproportionately focused on Americans of color.

Which leads us to another enormous human rights issue in America.

Mass incarceration

We incarcerate more of our own people than any country on earth or in human history. Three decades of harsh laws, including a jump in life and life-without-parole sentences (one in nine U.S. prisoners is serving a life sentence), high mandatory minimums and three strikes laws have led to more than 2 million Americans imprisoned with another 5 million under correctional control.

The War on Drugs is the biggest single factor. While “pot barons” are reaping huge profits from marijuana sales in Colorado, elsewhere Americans serve years behind bars for simple possession. Though blacks and whites use and sell drugs at roughly the same rates, blacks are four times more likely to be prosecuted and convicted for marijuana offenses. That bias permeates all aspect of drug enforcement in America.

One positive sign is that U.S. Attorney General Eric Holder recently instructed federal prosecutors to avoid charges carrying mandatory minimum sentences for certain low-level, nonviolent drug offenders. But this modest step is not enough, as it still leaves many drug offenders subject to disproportionately long mandatory sentences, according to Human Rights Watch. Legislative efforts to grant judges more discretion in such cases are under debate.

The best solution is legalization and taxation of marijuana, which will raise large amounts of money in tax revenue and save states enormous amounts in prosecuting and jailing costs each year — all adding up to hundreds of millions of dollars in that is better spent on education and other urgent needs. Another encouraging sign is that seven more states seem ready to legalize in 2016 ballot initiatives, ending their eras of marijuana prohibition. Surely more will follow suit.

Immigration reform

Human Rights Watch estimates that there are approximately 25 million noncitizens in the U.S., nearly 12 million of whom are here without authorization. Our treatment of this group is a human rights violation that cries out for reform.

The vast network of immigration detention centers in the U.S. now holds about 400,000 noncitizens each year. At any given time, hundreds of detainees are held in solitary confinement.

In a reversal for human rights, the criminal prosecution of immigrants, which historically has been largely dealt with through deportation and other non-criminal sanctions, is increasing. In 2012, immigration cases constituted 41 percent of all federal criminal cases. Astonishingly, illegal reentry is now the most prosecuted federal crime. Many of those prosecuted have no criminal history and have substantial ties to the U.S. such as U.S. citizen family members they were seeking to rejoin when arrested. Most immigrants come to the U.S. for the same reasons they always have: to find work, to seek better lives for themselves and their families.

The good news here is that President Obama announced last month an executive order that provides legal status and work permits for about 5 million illegal immigrants. He has also called for congressional action for further reform. Most Americans support finding a pathway to citizenship for law abiding immigrants who have lived in the U.S. for years, and certainly for their children.

Reproductive rights

Women’s rights are human rights. When it comes to women’s reproductive rights, we have taken a significant step backwards in the last few years.

Roe v. Wade is still the law of the land, but outside the northeast and some western states, abortion rights barely exist anymore. A woman’s constitutional right to choose is now fraught with exceptions and legal restrictions like mandated parental involvement for minors; required pre-abortion counseling that is medically inaccurate; extended waiting periods paired with a requirement that counseling be conducted in-person, thus necessitating two trips to the facility; mandated performance of a non–medically indicated ultrasound prior to an abortion; prohibitions of Medicaid funding; restrictions on insurance coverage; medically inappropriate restrictions on the provision of abortion medication; and onerous requirements on abortion facilities that are not related to patient safety.

More legal restrictions on abortion rights are in effect now than at any time since Roe v. Wade. The majority of American women now live in states with laws that are overtly hostile to their reproductive rights, according to the Guttmacher Institute. No abortion clinic exists at all in 89 percent of the counties in America.

In the years since Roe v. Wade was decided in 1973, over 700 pregnant American women have been arrested or forced into unwanted medical procedures based on the “personhood” rights of the embryo or fetus they were carrying.

I have no ray of hope to offer here, as the midterm elections saw the election of a slate of anti-choice state legislators.


The dozens of women accusing Bill Cosby of rape has brought the issue of sexual assault into the headlines. What that story highlights is how little rape victims, who are usually women, trust the system to handle their cases. Few of Cosby’s accusers went to the police. Several say they were talked out of it by lawyers, agents, managers or friends. One did go, only to be told the prosecutor wouldn’t prosecute. While the alleged Cosby assaults took place decades ago, the situation hasn’t changed much over the years – currently, the majority of rape victims do not go to the police. Until trust in the system is earned, rapists will escape justice.

The positive news with regard to sexual assault is the advent of “yes means yes” laws, mandating schools to have policies requiring students to state unambiguous consent before they have sex. California’s “yes means yes” law will be the first in the nation to make affirmative consent language a central tenet of school sexual assault policies.

What is the definition of consent? “An affirmative, conscious and voluntary agreement to engage in sexual activity.” It also states that silence and a lack of resistance do not signify consent and that drugs or alcohol do not excuse unwanted sexual activity. Consent must be obtained for each sexual act.

Translation: Silence is not consent. If someone is too drunk or high to clearly say yes, it’s a no. Fondling is not consent to intercourse. The lack of a no is not a yes.

If a woman says or indicates no and a man has sex with her anyway, that was and is rape under policies old and new. Of course this is true for all genders and sexual orientations, but women are the primary victims and men the primary perpetrators of sexual assault. If she says or unambiguously communicates yes, she has consented and no sexual assault has occurred, then or now.

The question has been what to do about the space in the middle, where words were not spoken, or perhaps alcohol or drugs were involved. The old idea that sex was consensual if she cannot definitively prove she said “no” stems from centuries of women being the legal property of men, existing for male pleasure. In some parts of the world today, for example, there remains no such thing as marital rape.

Shifting the blame from the victim to the perpetrator is a good first step. But campus rape remains a serious problem requiring high priority attention from universities and law enforcement.

LGBT rights

Let me start with the bad news here so I can end on a positive one.

Only 21 states and the District of Columbia prohibit sexual orientation discrimination in employment. In the other 29 states, your boss can fire you for being gay. It’s time for all 50 states to recognize that LGBT people have the same job rights as everyone else. This is well overdue.

We’ve made major progress, however, on gay marriage. A decade ago same sex marriage in America did not exist. Today, largely due to federal and state court decisions, same sex couples have legal marriages in 35 states. In the seven states where gay marriages are still banned, appeals are in progress. I predict that the U.S. Supreme Court will ban marriage discrimination nationwide within the next five years.

This is important progress for our LGBT friends. Gone are the days when same-sex couples were told to accept civil unions or domestic partnerships when it was obvious these were second-class designations.

A generation is now growing up with full equality for LGBT folks as the norm.

I just got married. At the Santa Barbara, California, courthouse, the forms no longer asked for “Bride’s name” and “Groom’s name,” but simply “Person 1” and “Person 2.”

So simple. So right. Progress.

The views and opinions expressed here are those of the author and do not necessarily represent those of Avvo. // Photo: Shutterstock

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