The Road to Racial Justice: Resolving the Disproportionate Health Burden Placed on Communities of Color by Highway Pollution

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Wendy Xiao is a member of the Columbia Law School class of 2021.

The ubiquity of highways and their presence in our lives belies the fact that they developed as a prominent mechanism for racial discrimination. During the development of the Interstate Highway System, government officials across the United States deliberately rammed federally funded highways through communities of color, leading to increases in crime and lack of access to goods and services. These vulnerable communities continue to feel the effects of the racially motivated placement of highways. Recent research has focused on an additional burden placed upon minority populations because of highway location—traffic-based air pollution. This pollution causes numerous lifelong physical adverse health effects in children, such as respiratory illness, cardiovascular disease, and developmental delay. It even affects cognitive functions in adults, including productivity and impulse control. The deadly effects of pollutants are highlighted by the COVID-19 pandemic, as exposure to highway pollution is linked to an increased mortality rate. These health burdens are disproportionately borne by communities of color. As the adverse health effects of highway pollution and the disparate impact highway pollution has on communities of color become increasingly clear, government officials at all levels have still failed to take meaningful action in addressing this human rights and public health issue. This Note analyzes a range of existing recommendations and legislation at a federal, state, and local level. Ultimately, by examining in particular the measures against highway pollution taken in Los Angeles, New York City, and Boston, it is clear that the status quo is not sufficient to protect communities of color. Therefore, government officials must adopt a number of known community development best practices. If they fail to do so, individual citizens, empowered by the Fair Housing Act, should force action from government officials.

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Willful Blindness: Challenging Inadequate Ability to Pay Hearings Through Strategic Litigation and Legislative Reforms

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Jack Furness is a member of the Columbia Law School class of 2021.

Roughly ten million Americans owe court-ordered economic sanctions, known as Legal Financial Obligations (LFOs). Oftentimes, payment of these fees is a condition of probation; when an individual is unable to make payments their probation may be revoked, resulting in incarceration. In 1983, the Supreme Court handed down its opinion in Bearden v. Georgia, explaining that states may only revoke probation for nonpayment of LFOs upon a showing that the nonpayment was “willful,” a determination that must be made in court through an ability to pay hearing. Since Bearden, the Supreme Court has not revisited this issue to explain what “willful” means, leading to an outgrowth of divergent interpretations among lower courts. This Note examines the history and context of the Bearden decision in an effort to uncover a clearer understanding of the meaning of the term “willful.” In doing so, this Note aims to show how some interpretations of this standard have failed to meet the threshold set by the Supreme Court, resulting in unconstitutional deprivations of liberty. Finally, this Note discusses some of the problems facing advocates in challenging inadequate ability to pay determinations before proposing potential solutions through both strategic litigation and legislative reform, modeled on successful outcomes in Washington, Louisiana, and Massachusetts.

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Cruel and Unusual Trauma: How Eighth Amendment Principles Governing Conditions of Confinement Should Apply to Juvenile Strip Searches

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Meg Gould is a member of the Columbia Law School class of 2021.

S.K., a biracial girl from Winnebago County, Wisconsin, was fifteen years old when she was first admitted to Copper Lake School for Girls, a secure juvenile corrections institution.[1] One day, guards accused her of possessing stolen gummy worms. As a consequence of the alleged theft, she was sent to solitary confinement.[2] S.K. was sent to solitary on several occasions while at Copper Lake—one time for passing notes to other youths in her unit.[3] Upon initial intake, after being transferred to solitary, and each time a family member visited, the guards would subject her to strip searches.[4] They required her to take off all of her clothes, ran their hands through her hair, made her display her private parts to them, and mandated that she squat and cough while unclothed.[5] At least some strip searches took place in a room where there was a one-way mirror and a camera: later, she could be watched on video (by any guard, including male guards), and people outside the room could see her naked body through the mirror. On one occasion, a guard strip-searching her wore an activated body camera.[6]

Had S.K. been a fifteen-year-old girl from St. Joseph, Missouri, she would have experienced an almost unrecognizable scenario compared to the one she faced at Copper Lake in Wisconsin. In Missouri she could have been placed to serve her sentence at Riverbend Treatment Center, a secure juvenile facility with an entirely different approach to treating its residents.[7] There, even juveniles who commit a serious offense while residing at the center benefit from an “intentionally humane” environment.[8] In other words, a juvenile like S.K. could have acted out, but the youth specialists would nonetheless treat her empathetically and safely when she did;[9] she could even call a “circle” in order to discuss with the group any problematic (or positive) behaviors or attitudes she experienced.[10] In stark contrast with Copper Lake, solitary confinement is never used as punishment at Riverbend.[11] S.K. would never have been subject to the use of pepper spray as she was at Copper Lake,[12] and strip searches are strictly prohibited.[13]

Children[14] have no control over whether they were born in Winnebago County or the city of St. Joseph, yet if a child happens to spend any time in a correctional facility, location matters. Location determines whether a child might be forced to take part in a “body cavity search” upon intake at a juvenile correctional facility,[15] or whether a child will never have to know what those words mean. While trauma can still occur in institutions designed with the best interests of a child in mind, location ultimately determines whether and how trauma might be structurally enforced.

Although comparatively humane juvenile facilities like Riverbend do exist, strip searches are employed in most juvenile detention and correctional centers across the United States notwithstanding the consequences—in particular, trauma—they may cause.[16] Despite the frequency of the use of strip searches and the increase in claims challenging the constitutionality of certain juvenile conditions of confinement,[17] the Supreme Court has yet to establish a constitutional standard regarding the use of strip searches in juvenile detention or correctional facilities. Outside of conditions of confinement, however, many other constitutional issues related to juveniles have been litigated before the Supreme Court.[18] One principle that has emerged in this jurisprudence is that “children are different”—that children’s vulnerability to harm and susceptibility to outside influences are different from those of adults.[19] This principle was primarily formed through cases evaluating the constitutionality of harsh sentences imposed on juveniles under the Eighth Amendment, but its implications are much broader.[20]

This Note argues that the Supreme Court’s “children are different” principle should apply to the constitutionality of the practice of strip-searching youth in juvenile facilities. By acknowledging the unique vulnerabilities of youth to harm caused by strip searches, courts must emphasize the extreme intrusion to a juvenile’s privacy rights. Assigning weight to that extreme intrusion would serve to restrict the scope of how and when strip searches should be implemented, justified only by a serious government interest in conducting such an invasive search. In other words, an individualized reasonable suspicion that a youth presented an imminent threat to herself or to others would have to exist before a strip search was conducted.

Part I of this Note describes how trauma resulting from the use of strip searches specifically harms youth. This Part then outlines the lack of a consistent constitutional standard for challenging the use of strip searches in juvenile detention centers under the Fourth Amendment.

Part II discusses the emergence of the constitutional principle that “children are different” from their adult counterparts in the criminal legal system, through the lens of other conditions and disciplinary practices in juvenile correctional facilities. Next, this Part examines the conditions of confinement imposed on juveniles that have violated the Cruel and Unusual Punishment clause of the Eighth Amendment, and the Due Process Clauses of the Fourteenth and Fifth Amendments. Finally, Part II demonstrates the similarities in the harm caused by strip searches to the harms incident to other conditions of confinement, before describing how strip searches could themselves potentially constitute punishment.

Part III argues that courts should apply the principle of “children are different” to the imposition of strip searches on juveniles in order to affirm the reality that youth are more vulnerable to harm resulting from strip searches. To that end, courts would need to acknowledge the higher degree of invasiveness of these searches from the perspective of children. Acknowledging this severe intrusion would affect the balancing of interests used to justify juvenile strip searches, and thereby require a greater governmental interest before conducting such searches. Put differently, acknowledging this intrusion would restrain the scope of strip searches to those implemented with reasonable suspicion or a higher level of cause.

  1.   Amended Complaint at 36, J.J. v. Litscher, No. 17-CV-47 (W.D. Wis. July 10, 2017), ECF No. 13 [hereinafter Litscher Complaint]. S.K. was first admitted in 2015; she was most recently admitted in July 2016. Id. at 36.

  2.   Id.

  3.   Id.

  4.   Id. at 2.

  5.   Id. at 25. One of the other juvenile girls in the lawsuit, A.P., was also subjected to strip searches when she was taken to “solitary [confinement], after family visits, and if someone reported something missing.” She stated that “having the guards stare at her naked body makes her feel dirty.” Id. at 38.

  6.   Id. at 36.

  7.   Richard Mendel, Annie E. Casey Found., The Missouri Model: Reinventing the Practice of Rehabilitating Youthful Offenders 27 (2010), https://www.njjn.org/uploads/digital-library/model.pdf [https://perma.cc/
    6BJW-XJUJ]. Secure facilities (also known as “long-term secure facilities,” “training schools,” or “juvenile correctional facilities”) are institutions that “provide strict confinement and have construction fixtures or staffing models designed to restrict the movements and activities placed in the facility.” Juvenile Residential Programs, Off. of Juv. Just. & Delinquency Prevention 6 (2019), https://ojjdp.ojp.gov/sites/g/files/xyckuh176/files/media/document/residential.pdf [https://perma.cc/3U33-LYPE]. Juveniles housed at these facilities are usually those who have been tried for “serious, violent, or chronic” offenses and “present . . . multiple psychological, social, behavioral, and intellectual needs.” Id. at 7. These facilities often have features like external gates or walls with razor wire, deploy mechanical restraints, or make use of some sort of exclusion; additionally, most of these facilities provide treatment for mental health and substance abuse. Id. at 6–7. In Missouri, youth are sentenced to Missouri Department of Youth Services (DYS) custody—and could be placed at Riverbend Treatment Center—if they committed a “sufficiently serious” infraction and caused “significantly severe” harm. Mendel, supra note 7, at 27.

  8.   Mendel, supra note 7, at 27.

  9.   The Missouri Model describes how, in lieu of training staff as traditional guards or correctional officers, the Missouri DYS instead has redefined the role of frontline workers as “youth specialists,” charged with ensuring the “safety, personal conduct, care, and therapy” of juveniles in their care. These youth specialists are intensively recruited for possessing certain personality traits, including listening skills, empathy, and clear speaking styles; for embodying racial and ethnic diversity; and for having a base level of at least sixty hours of college experience before being hired. Id. at 28, 31.

  10.   Id. at 29.

  11.   Id. at 27.

  12.   Litscher Complaint, supra note 1, at 36.

  13.   Mendel, supra note 7, at 27.

  14.   This Note follows Justice Kagan in Miller v. Alabama, where she used the terms “children” and “juvenile” interchangeably. See 567 U.S. 460 (2012).

  15.   Wis. Stat. § 968.255 (2015); Cal. Stat. § 4031 (2017); see also William Simonitsch, Visual Body Cavity Searches Incident to Arrest: Validity Under the Fourth Amendment, 54 U. Miami L. Rev. 665, 665 (2000) (describing the procedure of a visual body cavity search, in this instance applied to adults).

  16.   Rhode Island, Maryland, Washington, Indiana, Kentucky, Oregon, Mississippi, Texas, California, Georgia, Virginia, West Virginia, Alabama, Wyoming, Massachusetts, Ohio, Utah, and Delaware, among other states, use strip searches; a full list is on file with the Columbia Human Rights Law Review.

  17.   Many juvenile conditions of confinement have been challenged in courts over the past two decades as advocates, organizers, family members, and activists have elevated the issue of children’s vulnerability to harms within detention facilities. See, e.g., A.T. ex rel. Tilman v. Harder, 298 F. Supp. 3d 391, 416 (N.D.N.Y. 2018) (challenging the constitutionality of the use of solitary confinement on youth); J.J. v. Litscher, No. 17-cv-47 (W.D. Wis. July 11, 2017) (challenging the use of solitary confinement, physical restraints, and pepper spray on youth); Doe v. Hommrich, No. 3-16-0799, 2017 WL 1091864, at *1 (M.D. Tenn. Mar. 22, 2017) (challenging the use of punitive solitary confinement on youth).

  18.   See, e.g., In re Winship, 397 U.S. 358 (1970) (holding that a juvenile charged with conduct for which s/he would be criminally liable as an adult has a due process right for the elements of the offense to be proved beyond a reasonable doubt); Kent v. United States, 383 U.S. 541 (1966) (determining whether a juvenile can be waived to adult court); In re Gault, 387 U.S. 1 (1967) (ascertaining what legal rights juveniles have in criminal court); McKeiver v. Pennsylvania, 403 U.S. 528 (1971) (establishing the right to trial by jury for juveniles and other due process requirements); Breed v. Jones, 421 U.S. 519 (1975) (applying double jeopardy protections to adjudicatory hearings); Roper v. Simmons, 543 U.S. 551 (2005) (considering the imposition of the death penalty); Graham v. Florida, 560 U.S. 48 (2010) (considering the imposition of life imprisonment without the possibility of parole); Miller v. Alabama, 567 U.S. 460 (2012) (finding unconstitutional a mandatory sentence of life without the possibility of parole for juvenile offenders.); J.D.B. v. North Carolina, 564 U.S. 261 (2011) (determining whether age is a factor for Miranda purposes); Safford Unified Sch. Dist. #1 v. Redding, 557 U.S. 364 (2009) (deciding the constitutionality of strip searches imposed on juveniles in public schools).

  19.   Miller, 567 U.S. at 470–71 (2012) (“Children are constitutionally different from adults.”).

  20.   See Roper, 543 U.S. at 578 (2005) (concluding that imposing the death penalty on juveniles is unconstitutional); see also Graham, 560 U.S. at 82 (2010) (finding unconstitutional the imposition of life imprisonment without parole on juveniles).

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Of American Fragility: Public Rituals, Human Rights, and the End of Invisible Man

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Etienne C. Toussaint is a Associate Professor of Law at the University of the District of Columbia, David A. Clarke School of Law.

The COVID-19 pandemic has exposed the fragility of American democracy in at least two important ways. First, the coronavirus has ravaged Black communities across the United States, unmasking decades of inequitable laws and public policies that have rendered Black lives socially and economically isolated from adequate health care services, educational resources, housing stability, environmental security, stable and living wage jobs, generational wealth, and other institutional structures necessary for resilience. Second, government-mandated social distancing in response to the coronavirus has failed to dampen America’s racially biased, violent, and supervisory policing culture, reigniting demands from the Movement for Black Lives for police abolition and, more generally, the dismantling of white supremacy in sociopolitical life. In response, scholars have called for a radical (re)imagination of American democracy.

This Article argues that resolving the fragility of American democracy amidst the terrors of COVID-19 warrants a renewed commitment to the emancipatory language of human rights. This assertion rests on three claims, using the challenges of housing insecurity as a guiding explanatory thread. First, the geography of health inequity in Black communities across the United States embodies not merely governmental neglect, but more poignantly, the rituals of white supremacy that create and reconstitute the racial social order. As a result, beyond coordinated public health measures and short-term economic stimulus plans to address human vulnerability, the future of American democracy demands new tools to confront racial ritualization in everyday life. Second, human rights discourse challenges the normative underpinnings of contemporary public policy, which are shaped by liberal assumptions about the human condition that enshrine structural inequality and propagate economic power. Third, human rights discourse expands the social imagination, fostering innovation in lawmaking by deconstructing antiquated valuations of equality and reconstructing contextualized notions of liberty. Taken together, these insights reveal human rights discourse as a project of reimagining legal subjectivity and state responsibility.

To further elucidate the benefits of human rights discourse in view of compelling arguments to move beyond rights-based framings of equality and discrimination, this Article places Martha Fineman’s theory of vulnerability in conversation with Ralph Ellison’s articulation of the Black American experience during Jim Crow segregation in his novel, Invisible Man. This dialogue reveals the erasure of “sacrifice” from ongoing discussions of social and economic inequality. As this Article argues, sacrifice is a critical dimension of democratic citizenship that has been rendered invisible in contemporary rights-based discourse and emergent strategies for poverty alleviation. Drawing insights from the Movement for Black Lives and contemporary theorists of political philosophy, this dialogue clarifies the central role of “dignity” in establishing the preconditions for an engaged citizenry in the context of American racial capitalism.

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Obscured by “Willful Blindness”: States’ Preventive Obligations and the Meaning of Acquiescence Under the Convention Against Torture

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Jon Bauer is a Clinical Professor of Law and Richard D. Tulisano Scholar in Human Rights at University of Connecticut School of Law.

As U.S. asylum law becomes more restrictive, relief under the U.N. Convention Against Torture (CAT) has become the last hope for safety for many asylum seekers. But for those who face torture at the hands of non-State actors, CAT relief has proven extraordinarily hard to win. The CAT’s torture definition encompasses privately-inflicted harm only when it occurs with the consent or acquiescence of a public official. Agency decisions initially took this to mean that officials must willfully accept or tacitly approve the private party’s actions. Courts have rejected that approach as overly restrictive. But what they have adopted in its place—a “willful blindness” test under which CAT applicants must show that officials would turn a blind eye to the torture they face—is also problematic. Under this standard, even where government officials take only half-hearted or patently inadequate steps to combat acts of privately-inflicted torture such as domestic violence, honor killings, gang violence, or mob attacks on LGBTQI people, courts frequently conclude that acquiescence has not been shown. As long as officials are doing something, the decisions reason, they are not willfully blind.

This Article argues that willful blindness should not be the test for acquiescence. The term “acquiescence” is defined in a Senate ratification understanding to require that a public official have awareness of the torturous activity and breach a legal responsibility to intervene to prevent it. This definition, which has been incorporated into U.S. law, makes clear that when officials are aware of torturous activity—and in most cases there is no doubt that a country’s government is aware of widespread patterns of abuse—what matters is whether they breach their legal responsibility to take preventive action.

Drawing on previously overlooked aspects of the history of the CAT’s drafting and U.S. ratification, this Article argues that officials acquiesce to torture if they fail to meet their legal responsibility under international law to take effective preventive measures. The State’s responsibility to exercise “due diligence” to prevent, investigate, prosecute, and punish acts of torture by non-State actors is widely recognized under the CAT and other human rights treaties. The U.N. Committee Against Torture has found that when States fail to exercise due diligence, they enable private parties to commit acts of torture with impunity, and thereby acquiesce. That approach accords with how the U.S., during the treaty negotiations, originally defined “acquiescence” when it proposed adding the term to the CAT’s torture definition. It also fits in comfortably with the text and purpose of the treaty and its U.S. ratification understandings. The Article concludes by considering what a due diligence standard for acquiescence would look like in practice and addresses potential objections to its appropriateness and administrability. It also offers a proposal to amend the CAT regulations to clarify the acquiescence standard

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The Injustices of Time: Rights, Race, Redistribution, and Responsibility

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Zinaida Miller is an Assistant Professor of International Law & Human Rights, School of Diplomacy and International Relations at Seton Hall University.

Resurgent debates in U.S. law and politics over reparations and racialized inequality reflect what this Article argues is a significant transnational legal phenomenon: courts, policymakers, and social justice advocates mobilizing pasts of racial and ethnic violence and dispossession to justify competing rules for the distribution of resources and power today. In the United States., South Africa, Canada, and Israel/Palestine, significant legal and political battles revolve around the relationships among past, present, and future. Judges and advocates identify progress from or rupture with the past; embrace or reject institutions intended to record and resolve past events; and attempt to silence or center past violence when interpreting rights in the present. In the U.S., arguments about whether and how slavery is relevant to contemporary racialized inequalities arise in litigation around affirmative action and reparations. These debates contest not the horror of that past but rather its linkage with the beneficiaries of racial privilege today given the passage of time and the formal legal end of slavery and segregation. In South Africa, a critical fault line has emerged between those who view the Truth and Reconciliation Commission, the post-1994 Constitution, and Constitutional Court judgments as representative of a flawed but foundational break with the atrocious past and those who assert that today’s radical, racialized inequalities derive from legal and constitutional continuities with the colonial and apartheid pasts. In Canada, recent public debates over the legal definition of genocide revealed tensions over the distribution of resources and power between Indigenous and settler Canadians. The question of whether genocide ended or continues represents a fundamental contest over the material consequences of colonialism in the present. The final case study examines the evasion of the past in the Oslo Accords and its subsequent effects on the structure of Israeli-Palestinian relations. While the predominant argument held that engaging the past would only provoke further conflict, activists and advocates countered that the radically unequal distribution of territory, population, and power in the present can be understood only in relation to past violence and dispossession. Together, the case studies reveal the material stakes of legal and political assertions of the resolution, distance, reproduction, legacy, afterlives, or erasure of racialized violence and dispossession.

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Criminal Responsibility for the COVID-19 Pandemic in Syria

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Roger Lu Phillips is the Legal Director of the Syria Justice and Accountability Centre (SJAC) where he leads the organization’s efforts in support of Universal Jurisdiction prosecutions of Syrian war crimes as well as the organization’s data analysis and documentation teams. He is an Adjunct Lecturer in international criminal law at Catholic University’s Columbus School of Law. Previously, he served as a UN legal officer at the Khmer Rouge Tribunal and the International Criminal Tribunal for Rwanda. He is a graduate of American University’s Washington College of Law and a member of the D.C. and Colorado Bars.

Layla Abi-Falah holds a juris doctorate degree with a concentration in International Law and a B.A. in International Relations with a concentration in Human Rights in the Middle East & Africa from the College of William & Mary. Layla has had the privilege of working on human rights issues across the Middle East, Sub-Saharan Africa, and Eastern Europe, working most recently as a legal consultant, fellow, and intern for Roads of Success, SJAC, the UN International Residual Mechanism for Criminal Tribunals, and the USAID Jordan CITIES Project.

Since the beginning of the Syrian conflict in 2011, the Syrian
government has bombed healthcare facilities, attacked healthcare
workers, and diverted humanitarian medical aid. These attacks not only
decimated hospitals and led to numerous fatalities, but they also crippled
Syrian healthcare capacity, leaving the country entirely unprepared to
address the COVID-19 pandemic. Health experts now estimate that an
unmitigated COVID-19 outbreak in Idlib, the last redoubt of the
opposition, could result in the deaths of up to one hundred thousand
persons—a situation that would not have arisen but for the Syrian
government’s campaign of violence against healthcare.

The Syrian government’s attacks on health facilities are well-
documented and were condemned in a series of reports issued by
United Nations entities, journalists, and non-governmental organizations.
But the death and suffering caused by these attacks is not fully
encompassed by reference to direct casualties alone. Thousands of
Syrians have been deprived of routine medical treatment for acute
illnesses as well as communicable diseases as a result of a deliberate
strategy of eradicating access to healthcare. This Article examines
whether individuals may be held criminally liable for the Syrian government’s campaign of violence against healthcare, which has led to
the death and suffering of the Syrian people through injuries and
illnesses, including COVID-19. By examining the concept of dolus
eventualis
, the Article concludes that the Syrian government’s acts and
omissions in furtherance of a policy to attack healthcare constitute
numerous crimes against humanity and war crimes, including murder
and extermination.

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Righting the Scales of Justice: The Critical Need for Contempt Proceedings Against Lawless Landlords

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Armen H. Merjian is a civil rights and poverty lawyer at Housing Works, Inc., the largest provider of HIV/AIDS services in the State of New York, and the Legal Director of the HIV Law Project, Inc.

In his Pulitzer Prize-winning book Evicted, Matthew Desmond demonstrates that lack of safe and stable housing, a fundamental human right, “is among the most urgent and pressing issues facing America today.” Yet, although more than one in three Americans (over one hundred million individuals) live in rental housing, landlord/tenant law is largely neglected in the scholarly literature. This Article is the first to address the use of contempt to enforce court orders to repair hazardous conditions. Hazardous living conditions affect millions of renters nationwide, and disproportionately affect communities of color and low-income individuals. This Article reviews the profound imbalance in power in the housing courts of New York, America’s largest city, and reveals that what was conceived as a forum to ensure safe and habitable housing has become a collection and eviction service for landlords. It is a system that, between 2011 and 2016, yielded 117,952 evictions, yet fewer than fifty contempt rulings for failure to obey court orders to repair hazardous conditions; this, despite landlords’ chronic and widespread flouting of such orders. The Article contends that rather than merely returning to court over and over for the reissuance of orders to repair, courts and practitioners must initiate contempt proceedings. The Article demonstrates, finally, how such proceedings can remedy this injustice, including (1) establishing deadlines for the completion of ordered repairs, with either imprisonment or fines for each day that the landlord continues to flout the court’s authority; (2) awarding damages to the aggrieved tenant, including damages for emotional distress and diminished habitability; and (3) awarding attorneys’ fees and costs to tenants’ counsel.

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Unwilling or Unable? The Failure to Conform the Nonstate Actor Standard in Asylum Claims to the Refugee Act

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Charles Shane Ellison is a Senior Lecturing Fellow at the Immigrant Rights Clinic at Duke Law School.

Anjum Gupta is a Professor of Law, Judge Chester J. Straub Scholar, and Director of the Immigrant Rights Clinic at Rutgers Law School.

Pursuant to its obligations to the international community, the United States provides asylum to individuals fleeing persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.” For decades, both the Board of Immigration Appeals and federal courts recognized that individuals could obtain asylum based on a fear of persecution at the hands of nonstate actors, so long as the applicant demonstrated that their government was “unable or unwilling” to control the persecution.

As part of a wide-ranging attack on asylum, the Trump administration has sought to eliminate asylum based on nonstate actor persecution. In June 2018, the Attorney General (“AG”) issued a sweeping decision, Matter of A-B-, vacating a 2014 decision in which the Board of Immigration Appeals had held that those fearing domestic violence could obtain asylum relief. Among other things, the decision heightened the nonstate actor standard, requiring that applicants not only show that their governments were “unwilling or unable” to control the persecution, but also that the governments “condoned” or were “completely helpless” to stop the persecution.

After Matter of A-B- was decided, federal courts have disagreed as to which standard to apply, or, indeed, whether the two tests differ at all. Courts in some circuits found the two standards to be different and held that the change to heighten the nonstate actor test was arbitrary and capricious. Other courts held that the condone-or- completely-helpless formulation was merely a permissible interpretation of the familiar unwilling-or-unable standard.

In response, on January 14, 2021, the Acting AG issued Matter of A-B- II, redoubling the defense of the condone-or-complete-helplessness articulation and evoking the agency’s Chevron and Brand X authority to combat decisions from the courts of appeals that had rejected Matter of A-B- I. The Acting AG claimed that the condone-or-complete-helplessness articulation was not a departure from the older unable-or-unwilling test, but he argued that even if it was a change in policy, it constituted a reasonable construction of the ambiguous statutory term “persecution.” In his elaboration of the condone-or-complete-helplessness standard, however, the Acting AG revealed that the new test is vastly more difficult to satisfy. He concluded that any state effort to protect victims—including even the most minimal effort—is sufficient to deny asylum protections.

This Article provides the first systematic analysis of the impact of the heightened nonstate actor test in cases before both the Board of Immigration Appeals and federal courts. We argue that the two tests are, in fact, different by analyzing the plain language they employ as well as the divergent case outcomes they have produced. Then, rather than ground the nonstate actor standard in the term “persecution,” we anchor the standard in the statutory language defining refugees as those who are “unable or unwilling to avail [themselves] . . . of [state] protection,” a strangely ignored part of the U.S. asylum statute and international treaty. This novel theory has yet to be considered by the courts, but it demonstrates that the unwilling-or-unable test is the correct one. The heightened condone-or-complete-helplessness standard, by contrast, is antithetical to the protections afforded by the statute and treaty and poses an insurmountable hurdle for many of the world’s most vulnerable refugees.

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Charting Global Economic Inequalities and Emancipatory Human Rights Responses from the Ground Up: The Tea Workers’ Movement of Bangladesh

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Chaumtoli Huq is a Associate Professor at CUNY School of Law.

Tea workers in Bangladesh, a workforce created by the indentured labor system under British colonialism and whose exploitation is maintained by existing laws, have been mobilizing against the threatened seizure of the land that they cultivate for sustenance in order to create a special economic zone to attract foreign investors. Because it was the government of Bangladesh, rather than a multinational corporation, that was threatening to forcibly acquire the land, the tea workers’ movement did not draw popular attention as a global labor and human rights struggle, revealing that marginalized communities often do not have any legal recourse to challenge their displacement where nation-states collaborate with global capital. Using the tea worker movement as a case study, this Article examines the ways in which national and international legal structures and economic policies facilitate the entry of global capital in subnational spaces, threatening the displacement of marginalized communities and creating further economic inequality. Further, this Article reveals how neither domestic law nor international human rights law is adequate to address these harmful impacts of globalization. Thus, it posits that international human rights lawyers must develop legal responses to counter the harmful impacts of globalization. Using a socio-legal research methodology, this Article explores the possibilities of legal responses from the ground up that articulate new human and labor rights for workers. Finally, this Article shows how the tea workers’ movement of Bangladesh offers valuable lessons to other marginalized communities who are impacted by globalization and provides possibilities for mobilization around an alternative vision of how our laws and economies can be organized.

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