OpenForum – a blog by the Health and Human Rights community

Yesterday, the US Supreme Court justices heard arguments in two appeals that challenge the constitutionality of sentencing children to life in prison without parole for non-homicide offenses. The cases of Sullivan v. Florida and Graham v. Florida involve a 13-year-old and a 17-year-old who committed rape and armed theft, respectively.

Defendant Joe Sullivan, now 33, is represented by Bryan Stevenson of the Equal Justice Initiative, a nonprofit legal advocacy organization. Mr. Stevenson maintains that the Eighth Amendment prohibits the cruel and unusual punishment characterizing such sentencing of youths under 14. In a quote from the New York Times, Mr. Stevenson comments, “To say to any child of 13 that you are only fit to die in prison is cruel. It can’t be reconciled with what we know about the nature of children.”

Bryan S. Gowdy, the lawyer for convicted juvenile offender Terrance Graham, expressed skepticism about a case-by-case determination of juvenile crimes not involving murder, saying, “At that age we cannot make a determination about whether or not the adolescent will or will not reform.”

These cases have received immense media attention and responses from practitioners at the frontline of health care and criminal justice for youths.

Drawing from his global health and justice work with children, Paul Farmer commented yesterday in a Boston Globe Op-Ed about the issues at stake in these Supreme Court hearings:

These are serious crimes and both young men must be held accountable. The question before the court is whether they should be held accountable in a way that takes into consideration their immaturity, lack of judgment, vulnerability to peer pressure, and – perhaps most important – their capacity for redemption, growth, and change. If the court strikes down life without parole for juveniles as unconstitutional, no offender would have an automatic right to parole release. Juvenile offenders would simply be given the opportunity to appear before a parole board and make the case that they have changed and deserve another chance.

 

Article 37 of the UN Convention on the Rights of the Child states that children must not be subjected to torture, inhuman or degrading treatment or punishments, including capital punishment or life imprisonment without the possibility of release. Only two nations in the world have not ratified this convention: Somalia and the United States. It is noteworthy that sentences of life without parole for juveniles were uncommon in the United States before the 1990s, a period of fear about a potential rise in juvenile crime that was based on data later proven false.

 

There are those who argue that international laws and norms should have no bearing on how the United States decides to dispense justice. But having treated thousands of children all over the world, I can say with confidence that American children are not more vicious, less human, or less deserving of mercy and compassion than children in any other country. Every other nation in the world finds ways to hold young people accountable for their actions without sentencing them to languish in prison until they die. The United States must do the same for its children.

Paul Farmer, MD, PhD, is professor of social medicine in the Department of Global Health and Social Medicine at Harvard Medical School, where he is chairman, and is cofounder of Partners In Health, an international nonprofit health care organization. He is the author of “Pathologies of Power’’ and co-editor of “Global Health in Times of Violence.’’

A comment on OpenForum’s August 10^th post on the US ratification of the Convention of the Rights of the Child raised several common misconceptions about US policy on such issues. This presented a good opportunity to speak to these perhaps broadly-held concerns.

First, the US has long used both international agreements and domestic law to govern its citizens — the US has been and continues to be a party to hundreds of international treaties (including UN human rights-based treaties) each year while maintaining the process of creating and enacting domestic laws. In fact, the US is depositary for over 200 international treaties, including the Charter of the United Nations, which first established the UN. American lawmakers rely on both bilateral and multilateral treaties, as well as the domestic legislative process, as tools for governance.

Further, international treaties, as opposed to executive agreements, must be presented to the US Senate, which gives advice and two-thirds of which must support ratification. In that way, the process by which the US ratifies international treaties is as democratic as the practice by which the US makes domestic laws, in that both require the approval of a democratically elected legislative body.

Second, the US has historically considered UN treaties to be “non-self-executing,” meaning that ratification of a treaty does not override existing US law or create new legislation. Further clarification of this policy came from Medellin v. Texas, 552 US (2008), in which the Supreme Court recognized the “distinction between treaties that automatically have effect as domestic law, and those that . . . do not by themselves function as binding federal law” and stated definitively that

while treaties “may comprise international commitments . . . they are not domestic law unless Congress has either enacted implementing statutes or the treaty itself conveys an intention that it be ‘self-executing’ and is ratified on these terms.” [cited from Igartúa-De La Rosa v. United States 417 F. 3d 145, 150 (2005)]

Later, the court further states that

[t]he terms of a non-self-executing treaty can become domestic law only in the same way as any other law — through passage of legislation by both Houses of Congress, combined with either the President’s signature or a congressional override of a Presidential veto.

Essentially, an international treaty must be stated to be self-executing in order for the US to consider it to be self-executing, and the normal legislative process must be followed in order to apply the principles of a non-self-executing treaty to domestic policy. As the Supreme Court stated, “[o]nce a treaty is ratified without provisions clearly according it domestic effect,” the domestic application of the treaty is decided by Congress alone. Read more

Whiteclay, Nebraska, population 14 (more or less) has been called the “skid row of the plains” for its four liquor stores, which all do brisk business — approximately 12,000 cans of beer a day. The visitors buying the beer are from South Dakota’s Pine Ridge Indian Reservation — less than 200 feet from the town line — where alcohol is illegal and alcoholism has ravaged the community.

In a New York Times op-ed, former South Dakota Democratic senator James Abourezk recently called for President Obama to restore the town land of Whiteclay to the Oglala Sioux of Pine Ridge, which would effectively render alcohol sales illegal. In the late 1800s, President Chester Arthur, issuing an executive order, created a 50-square-mile buffer zone on the reservation’s southern border, in Nebraska. Its intent was “to prevent renegade whites from selling guns, knives and alcohol to Indians living on the reservation.” Teddy Roosevelt, with the liquor industry in his ear, overturned the order in 1904.

Abourezk argues that Whiteclay’s liquor sales contribute to “murders, spouse beatings, child abuse, thefts and other undesirable consequences of the free flow of alcohol into the reservation.” His op-ed came a few months after the release of Battle for Whiteclay, a documentary that follows a group of activists as they try to abolish alcohol sales in the town. The film’s website states that the liquor stores regularly flout Nebraska laws by “selling beer to minors and intoxicated persons, knowingly selling to bootleggers who resell the beer on the reservation, permitting on-premise consumption of beer in violation of restrictions placed on off-sale-only licenses, and exchanging beer for sexual favors.”

Abourezk ended his column by writing that “President Obama could right a century of wrongs by re-establishing the buffer zone. It would alleviate the overwhelming social ills that result from easy access to alcohol, and help end the violence tribal members too often visit on each other and on their families.”

While it is indisputable that the liquor stores are preying on a vulnerable population, the problems at Pine Ridge go beyond drink. There are, for example, the reservation’s crushing poverty, sky-high unemployment rates, dismal health statistics, and treatment options (or lack of) for those suffering from addiction. Would presidential redress that restores the buffer zone be enough to “right a century of wrongs”? And while it may be a start, is it the right one? Read more

Six months into the administration of the United States’ first black president, the right-wing fringe has reclaimed the center of attention in US domestic politics, propelled by industry money and media interests. Health care reform happens to be the issue at stake, but any other issue would have served the purpose, as long as it guaranteed media coverage for right-wing fear-mongering and promoted the ongoing reframing of popular values (choice, security, people’s control) — mastered in the 1990s by Newt Gingrich — into Republican campaign slogans, spiked with racist undertones for good measure. In this context and to a backdrop of news about the return of militias — which kept a suspiciously low profile during the years of the Bush administration — I found the prospect of carrying out field research in Montana on the human right to health a little daunting. But reassuringly, Montana’s Human Right to Health Care campaign is run by an organization that is also Montana’s first and foremost expert in monitoring and fighting right-wing extremism: the Montana Human Rights Network.

With my counterpart from the Montana Human Rights Network, I set out this August to conduct focus groups in Lewis and Clark County, western Montana, to explore people’s health needs and their experiences with the local health care system. To our relief, we did not attract town hall size groups ready to vent their engineered hate, but we also did not fully escape the ugly reverberations of Fox News and Talk Radio. Some people with low incomes and very limited access to health care looked with disdain to the perceived health needs of others — particularly to those who had already been “othered” by decades of right-wing ideology (immigrants, the poor) — as an explanation for their own unmet needs. The community spirit of a frontier area sat in uneasy tension with the blaming game promoted on the airwaves from far away.

Yet we also heard plenty of other voices, from the poor to the privileged, who reported barriers to insurance coverage, a shortage of doctors, and a lack of respect for human beings in need, and who  openly welcomed the notion of health care as a human right for all, regardless of ability to pay. Read more

Lately, media coverage of town hall meetings to discuss health reform have focused largely on the disruptions and protests occurring at them, overlooking much of the information lawmakers have attempted to convey to the public on the urgency and importance of reform. Public forums are important and serve a purpose, but given these disruptions and the violence (threatened, implied, and enacted) that have regularly occurred at recent town hall meetings, a new tactic may be in order. Press conferences such as the one I recently organized in Seattle, Washington, may be an underutilized approach in moving health care reform forward. A press conference allows public officials to make their points without disruptions intended to distract rather than inform. Here’s a sampling of what went on:

I spent much of my life working in the non-profit sector, only recently deciding to try my hand at working inside the “system.” I designed a health reform project for the King County Board of Health based upon international human rights principles and was able to secure a consulting position through which I assisted board members in advocating for them with the general public, health organizations, and members of the state and federal legislature. It wasn’t easy, and it continues to be an education. As I describe in my upcoming article in Volume 11, Number 1 of Health and Human Rights, working to persuade elected officials to adopt and enact human rights concepts often requires finding ways to make them look good for doing so.

Read more

[Editor’s note: This is a guest post written by Sarah Bundick.]

On August 23, the New York Times reported that the CDC may recommend infant male circumcision as an HIV-prevention strategy. This article was followed by an editorial in the Boston Globe on August 26. The editorial states that infant male circumcision “makes sense [as a tactic] against a virus that infects more than 50,000 Americans each year” and that circumcision “deserves the CDC’s support.” These statements are based on the results of clinical trials in Africa showing that circumcised men were approximately 60% less likely to become infected with HIV than their uncircumcised counterparts. Unfortunately, the two numbers that the editorial cites — the 60% reduction in HIV transmission and the 50,000 new infections in the US every year — have very little to do with each other.

Let’s look first at the reduction in HIV transmission associated with male circumcision. In 2005, a group of French and South African researchers reported that adult male circumcision provided 60% protection (95% confidence interval: 32%–76%) from HIV infection to the circumcised men over a period of approximately 18 months in a South Africa-based trial. In 2007, two other studies completed in Africa, one in Uganda and one in Kenya, reported similar levels of reduction in the risk of HIV transmission. These clinical trials suggested that promoting adult male circumcision may be a way to reduce HIV transmission in certain contexts, particularly those in which HIV prevalence is high (as in the study areas, where prevalence estimates range from 5% to 30%) and where heterosexual transmission is the most common mode of transmission. The situation in the US, however, is markedly different: HIV prevalence is low (0.4%) and transmission of HIV is highest among injecting drug users and men who have sex with men. Thus,  the applicability of the African trials to the American HIV epidemic is severely limited. Read more

Media coverage of Dr. George Tiller’s murder may have lessened since his fatal shooting on May 31^st, but the severe restrictions placed on women’s access to abortion services continue. A new report from the Center for Reproductive Rights describes the “unacceptable obstacles” that abortion providers face in providing reproductive rights, using testimony from both providers and women seeking abortions throughout the country. The reasons cited for limited access to abortion services include a shortage of providers due to the social and financial costs of performing abortions, intimidation and harassment of providers and women seeking abortions, and legal restrictions such as mandatory waiting periods and prohibitions on federal funds.

Constant harassment and intimidation at abortion clinics continue to limit the ability of abortion providers to do their jobs and of women to obtain abortions in a safe and respectful space. Laws such as the Freedom of Access to Clinic Entrances Act (FACE) are meant to stop the often violent harassment that anti-abortion protesters use outside of abortion clinics. However, local and federal law enforcement can be lax in investigating threats: the report notes that the police often do not understand the provisions of FACE, or are unwilling to interfere with what they perceive as “the expected cost of providing abortion.”

Increasingly, anti-abortion groups are using litigation as a strategy to further harass abortion providers and burden law enforcement and the judicial system. For example, an anti-abortion group in Allentown, Pennsylvania sued the city after their protesters were arrested for “trespass, impeding access, racist and sexual taunting, and residential picketing” outside of a women’s clinic. The city eventually settled after a lengthy case, paying $10,000 to each of the 13 protestors. Experiences such as these have made law enforcement officials reluctant to interfere with protests outside clinics for fear of the legal repercussions. In this case, the Allentown City Solicitor told the clinic director that the city could no longer respond to any complaints at the clinic “unless there is a threat to life or person,” effectively admitting to the city’s almost complete inability to enforce the law with regards to abortion protestors. Read more

On July 30, US ambassador Susan Rice signed the UN Convention on the Rights of Persons with Disabilities (CRPD), joining the 141 nations that have already signed the document. The convention ensures the rights of disabled people to “education, health, work, adequate living conditions, freedom of movement, freedom from exploitation and equal recognition before the law”. Ratification is required for a state to be bound to a treaty, meaning that the Senate must now give a two-third majority agreement to join the 62 other countries that have ratified the convention.

Although signing this convention is a positive step toward official recognition of universal human rights principles, the US still remains woefully behind other nations in becoming legally bound to enforcing these human rights. The US has a particularly abysmal rate of ratification of international human rights agreements – of the nine core international human rights treaties created by the UN, only three have been ratified. The only treaties ratified by the US since 1994 have been optional protocols prohibiting the use of children in armed conflict and the sale of children and child prostitution. These protocols are additions to the Convention on the Rights of the Child (CRC), which the US has not ratified. Somalia and the US are the only nations in the world that have not ratified the convention, which is the most widely and rapidly ratified human rights treaty in history. The US has also failed to ratify the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), along with only six other countries, including Iran, Somalia, and Sudan.

Even when the US does sign and ratify treaties, stipulations and alterations have been attached to each convention to impose restrictions on its viability. None of the significant human rights treaties ratified by the US have been accepted “under the guidelines by which it was adopted and enforced by the UN General Assembly.” For example, in the ratification of the International Covenant on Civil and Political Rights, the US maintained the right to impose capital punishment and to try juveniles as adults. Although many countries add stipulations clarifying the role of an international treaty in regard to the nation’s domestic laws, restrictions imposed by the US can make legally enforceable international treaties weak and ineffectual. Read more

Many medical professionals and politicians looking toward alternative methods of providing health care are finding examples of communities within the US and in the developing world that have been able to give quality care without skyrocketing costs.

A June article in the New Yorker by Atul Gawande, which is reportedly required reading at the White House, examines the costs of health care by looking at the most and least expensive health-care markets in the US. In particular he studies McAllen, Texas, which has one of the highest costs of medical care per person in the country, and Rochester, Minnesota (home of the Mayo Clinic), which has among the lowest. Rochester also provides some of the best quality health care in the nation. Gawande’s findings led him to conclude that the Mayo Clinic system, which pays doctors an annual salary to keep them from treating their practices like “profit centers”, and emphasizes a peer-review process to improve quality of care, are the best hope for improving American health care. This requires breaking the “untenably fragmented, quantity-driven” systems that are becoming the norm in US medical care.

Gawande notes at the end of his piece that the decisions that need to be made about America’s health care system are greater than the public versus private insurance debate; rather, they involve a total reorganization of the health system. Enacting the principles already in place in the lowest-cost, highest-quality medical institutions in the country – removing any financial incentive for doctors to order unnecessary procedures and taking collective responsibility for patients – require a significant reordering of our priorities.

Others are also looking outside of the political discussions that focus on either “raising taxes or cutting care,” instead seeing a better way: “redesign.” Medical professionals from ten communities across the country with below average health spending and above average health outcomes recently traveled to Washington DC to discuss how changes they have implemented have lowered cost without reducing quality. Gawande, one of the meeting’s organizers, explained that change in these communities occurred quickly, as “[h]alf of these communities used to be high cost and transitioned to low cost over the last decade,” suggesting that national reform is also possible. Read more

Now that the President has officially designated the ongoing health care reform efforts as “health insurance reform,” we can stop the charade that this debate was ever about “care.” Or about health, for that matter. Oddly enough, the obsession with “coverage” – a potential mechanism to facilitate access to care – has not led to a serious consideration of the private insurance industry’s raison d’être, at least not beyond the community of single payer advocates whose voices are drowned in the constant drumbeat about a supposedly American – read: “market” – solution.

How are the current proposals for health insurance reform treating an industry that siphons off roughly $10 billion in annual profits? We now have two health reform bills reported out of congressional committees (”America’s Affordable Health Choices Act” in the House and the “Affordable Health Choices Act” in the Senate – using terminology pushed by Democratic pollsters, no doubt). Neither of them meets key human rights standards, and both cast private insurance corporations in the role of gatekeepers that control people’s access to care. At the same time, opposition is mounting against all and any reform measures.

Yet there continues to be great hope among many long-time health policy advocates that will we see meaningful health reform later this year. Advocates count on this reform to solve or at least alleviate the current health care crisis, which results in an estimated 22,000 preventable deaths due to lack of insurance each year, as well as skyrocketing costs that bankrupt families and public budgets alike. Pundits optimistically point to the many new measures the reform bills introduce: reining in the “free” insurance market through tougher regulation, including through a so-called Exchange mechanism; setting up a public insurance plan; expanding Medicaid; requiring employers to contribute to costs; and mandating everyone to buy insurance. All Americans (though not all immigrants – documented or not) will get health insurance – or so the hopeful want to believe.

Their hope is born out of desperation. Most advocates are painfully aware that health care is treated as a market commodity in the United States, and that market rules are stacked against those with little purchasing power. And these are usually the very people who need health care the most: poor people and people with serious health issues. In a blatant affront to the basic human rights principle of equity, minority groups and poorer communities in rural and inner city areas suffer disproportionally from market barriers to health care. Read more