Tuesday, 9 December 2014

United Kingdom: Human rights news file 2014 | HUMANERIGHTSEUROPE

United Kingdom: Human rights news file 2014 | HUMANERIGHTSEUROPE

ON 9 DECEMBER 2014, the Council of Europe released its news coverage report on ECHR human rights observance and violation in the United Kingdom. Stories include:

- Failings of the United Kingdom's social welfare benefits including the inadequacy of some short-term and long-term incapacity benefits.

- Following the death of Anthony Pritchard's son, who was killed in Iraq whilst he served as a member of the Territorial Army, the UK government agreed to pay a friendly settlement. The claim brought against the government was due to a failure to provide a full investigation into the circumstances of the death in violation of Articles 2 and 13 of the European Convention on Human Rights.

- In  Firth v. the United Kingdom and 10 follow-up prisoner applications on voting rights, the European Court of Human Rights found that the UK was in violation of Article 3 of Protocol No. 1 (right to free elections) to the European Convention on Human Rights.  

 

Monday, 8 December 2014

Unicef Raises Awareness of Children's Rights and Celebrates the 25th Anniversary of the CRC


UNICEF Raises Awareness of Children's Rights and Celebrates the 25th Anniversary of the Convention on the Rights of the Child 


Wednesday, 10 September 2014

Meriam Ibrahim: The Case that Gripped the World

BETWEEN MAY AND AUGUST 2014, the Sudanese case of Meriam Ibrahim attracted global concern. Her sentence to death and the treatment of her family by the Sudanese government was condemned by world leaders, the United Nations, the European Union (interestingly the African Union were silent), and a mass outcry from civil society through NGO and social media. #SaveMeriam and #FreeMeriam went viral. Amnesty International and Emily Clarke's Change.org petitions to save Meriam, each received over 1million signatures. 

The tragic story of the human rights violations which were imposed upon her and her family (not only was she sentenced to one hundred lashes and the death penalty for apostasy and sexual immorality), she had to give birth to her baby son in a prison cell whilst shackled and without adequate medical care, her husband had the prospect of being widowed, and their two children, motherless.

The story has a happy ending. It is a testimony to the victory of human rights through a hybridity discourse woven together by skilled lawyering, behind the scenes political diplomacy and the mass unified voice of civil society.

In the Birmingham City University City Talk, we will hear, not only the legal tactics and the political discussions (some public, some behind-the-scenes), we will also learn about how the Italian government became cogent for her final release (through engaging with the Security Services and the trumped up charges of falsification of her exit documents), and the passage to the United States – with a short stop off in Rome to meet the Pope!    

It will be an extremely interesting and engaging event.

The Panel includes:

The Rt Hon Baroness Anelay of St Johns, Minister of State at the Foreign and Commonwealth Office
Mr Mohamed Elshareef, Meriam Ibrahim's lawyer in Sudan, BCU Law School Alumnus
Mr Andrew Hall Q.C., Doughty Street Chambers, leading expert on African Law
Mr Lutz Oette, Redress, Drafter of Meriam's petition to the African Commission on Human and Peoples' Rights
Dr Jon Yorke, Birmingham City University, Member, The Foreign Secretary's Expert Panel on the Death Penalty
Panel Chair:

Mr Manjit Gill, Q.C. No 5 Chambers, Head of the International Human Rights Law Group

Emily Clarke will also be addressing the event about her Change.org petition for Meriam Ibrahim which received 1,092, 272 signatures, see Change.org Meriam Ibrahim Petition

If you would like to remind yourself of the legal, political and civil society contributions in the case, please see my blog posts for Oxford Law School's, Oxford Human Rights Hub Blog: 
http://ohrh.law.ox.ac.uk/?p=11765 
http://ohrh.law.ox.ac.uk/?p=12767

The event details are included below. It is FREE to attend, but you need to register and bring your ticket through eventbright at the link below: 
Event Registration: Meriam Ibrahim: The Case that Gripped the World


Monday, 1 September 2014

BCU Law School and the Modern Law Review Event: Judicial Recusal: 21st Century Challenges

Modern Law Review Event Flyer.pdf


This high profile event brings together world leading experts on judicial recusal to discuss the complexities surrounding both actual bias in judicial decision making and judgements, and also the incidences of the appearance of bias. The issue of judicial recusal is deeply embedded within the provision of the right to a fair trial. It is one of the basic human rights of all who are "brought before the law."


BCU Law School and the Modern Law Review will host:

Panel:

The Rt Hon Lord Roger Toulson, Justice of the UK Supreme Court
The Hon. Justice. Sir Grant Hammond, President of the Law Commission of New Zealand
The Hon. Michael Kirby, Former Justice of the High Court of Australia
The Hon. Raymond J McKoski, Former Judge, Nineteenth Circuit, Illinois.    

Panel Chair:

Mr. Mark George, QC, Garden Court North Chambers

Venue: Room P350, The Parkside Building, 5 Cardigan Street, Birmigham, B4 7BD
Date: 26 September 2014
Time: 4:30-8:30pm.



For more information on this exciting event, please email:

Professor Julian Killingley at - julian.killingley@bcu.ac.uk

Or to register for the event, please click on the below link:

BCU/ModernLawReviewEvent

Tuesday, 24 June 2014

Call for Papers: International Law and American Exceptionalism



Edited by
Professor Julian Killingley and Dr Jon Yorke
BCU Centre for American Legal Studies

Ashgate Series: Controversies in American Constitutional Law

Call for Contributors

President Barack Obama stated,

I believe in American exceptionalism with every fiber of my being. But what makes us exceptional is not our ability to flout international norms and the rule of law; it’s our willingness to affirm them through our actions,”
              
The President’s Address to the US Military Academy, West Point, May 28, 2014.


International Law and American Exceptionalism engages with the controversies surrounding the relationship of international law and American domestic law. It deals with a variety of approaches to the use/restriction/rejection of international law by Congress and the American courts through engaging with international legislation (in both “hard” and “soft” forms) and the increasingly important discourse on international judicial dialogue. It will analyse the processes of constitutional cross-fertilization in judicial constitutional-to-constitutional court dialogue and constitutional-to-regional court dialogue. The overarching theme of the collection is to investigate to what extent America is part of/abstaining from/contributing to, the globalization of legal principles. The perpetual pressures upon the various global agendas necessitates that the concept of “American exceptionalism” requires further critique to determine the boundaries of American sovereignty.    

The collection will bring together scholarship from different disciplines in analysing this issue, and we encourage contributions from both sides of the American political spectrum. We want to provide a platform for both conservative and liberal approaches to the issue of the utility of international law. The critique supplied can be multidisciplinary, including: legal, sociological, political, psychological and philosophical inquiry.

All areas of law will be considered for inclusion within the collection, from, inter alia, interpretations of Congressional powers under U.S. Constitution, Article 1, Sec. 8, “[t]o punish…Offences against the Law of Nations,” through to the consideration of the U.N. Convention Against Torture in immigration proceedings, to Trade Related Intellectual Property Rights in patent cases, to the consideration of the status of the fetus in the Organization of American States, and to the use of international climate change law.

We give discretion to contributors to identify your area of interest in the intersection of international and American law.



Submissions information:

To submit, please send your proposed title and a short synopsis of up to 400 words to: Dr. Jon Yorke, Director of the Centre for American Legal Studies, BCU Law School, Birmingham City University, UK, at: jon.yorke@bcu.ac.uk

Submissions decisions will be made by 10 August 2014.

Chapter submissions are 12,000 words, including footnotes. Bluebook citations are used for footnotes.

The deadline date for chapter submissions is 31 January 2015. Author proofs checking will be March 2015, and publication will be July 2015.   

Ashgate Series: Controversies in American Constitutional Law        


If you have any questions, please contact Jon Yorke at the above email address.          

Call for Papers: Controversies in Criminal Evidence

Edited by
Sarah Lucy Cooper
BCU Centre for American Legal Studies


Ashgate Series: Controversies in American Constitutional Law



Call for Contributors

Birmingham City University’s Centre for American Legal Studies in the United Kingdom is developing a multi-volume series entitled “Controversies in American Constitutional Law” with Ashgate Publishing Ltd. The volumes, each of which will be led by the Centre’s faculty, will include edited collections on equal protection law, death penalty law and international law. The first collection in the series, Controversies in Innocence Cases in America, led by Sarah Lucy Cooper was published in May, 2014. Founders of the American Innocence Movement, Peter J. Neufeld and Barry C. Scheck, commented that “Anyone who cares about miscarriages of justice and thinks critically about the system as a whole will find this collection to be a provocative, insightful, and valuable resource.” More information about this title can be found here: http://www.ashgate.com/isbn/9781409463542


Ms. Cooper’s second collection Controversies in Criminal Evidence will comprise at least twelve chapters, and bring together leading experts on the theory, application and scholarly analysis of evidence law in America, from a variety of legal, scientific, policy and ethical perspectives. The contributors will investigate contemporary questions concerning the issues presented by criminal evidence. The chapters will be placed within a multi-disciplinary perspective to provide cogent observations and recommendations for the effective application and development of criminal evidence law.


The topics to be included (but not limited to) are:
1)      Theory and criminal evidence.
2)      Basic principles and criminal evidence.
3)      Burdens, presumptions and procedural aspects.
4)      General constitutional law principles.
5)      Perspectives are major federal and state admissibility frameworks such as the Federal Rules of Evidence.
6)      Expert evidence, including scientific, forensic and medical evidence in criminal cases.
7)      Circumstantial, character, hearsay and impeachment evidence.
8)      Integrity issues and criminal evidence.
9)      Judicial notice, privileges and trial procedure.
10)  Current legislative and policy reforms in evidence law.
11)  International perspectives and/or comparative discussions.

Submissions Information
If you are interested in contributing to this edited collection you may wish to focus upon one of the above topics or submit a different issue to be analysed. Chapters should be approximately 12,000 words, including footnotes. Footnotes should be Bluebook compliant, but chapters should otherwise be in line with the Ashgate house-style. The submission deadline for abstracts (Max. 400 words) is December, 12, 2014. After this, a proposal will be formed and forwarded to Ashgate for approval. The provisional deadline for first drafts is August 1, 2015.

If you have any questions or you would like to discuss an alternative topic to the ones identified above, please contact me at: sarah.cooper@bcu.ac.uk

Thank you for your consideration. I look forward to hearing from you.


Sarah

Friday, 13 June 2014

Controversies in Innocence Cases in America: Editor’s Review

by Sarah Lucy Cooper, Senior Lecturer in Law, BCU Law School; Fellow, Arizona Justice Project

In 2010 I joined the Arizona Justice Project – a non-profit organization that represents Arizona inmates with significant claims of innocence and ‘manifest injustice’ -- as an Adjunct Fellow. The Justice Project is the fifth oldest member of the Innocence Network, which brings together over 60 such projects worldwide. 

As a Fellow, I started to engage with the many and varied controversies of innocence work at a time when the American Innocence Movement had found its stride, with around 1000 exonerations to its name. These controversies ranged from the impact of restricted resources and antipathetic attitudes towards reform, to the difficulties of investigating common causes of wrong convictions such as false confessions, eyewitness misidentification and flawed forensic evidence, and the challenges of navigating complex and stringent post-conviction relief rules. 

In the heat of the Justice Project trenches, further exploration often led to more questions than answers.  Luckily, however, in 2011 Ashgate Publishing Ltd commissioned the Centre for American Legal Studies at Birmingham City University to produce an edited collection series -- Controversies in American Constitutional Law -- and presented me with the opportunity to provide some answers.

My collection is titled Controversies in Innocence Cases in America and the final line up of contributors includes some of America’s finest ‘innocence’ scholars and lawyers.  This includes frontline members of the Innocence Network Keith Findley and Jacqueline McMurtrie, and scholars at the forefront of innocence associated research, namely Jules Epstein, Richard A. Leo, Deborah Davies, Lissa Griffin, Marvin Zalman, Nancy Marion, Michael J. Williams, Carrie Leonetti and Francine Banner, as well as scholars working live innocence cases daily, namely D. Michael Risinger and Lesley C. Risinger at Seton Hall’s Last Resort Exoneration Project and Carrie Sperling the Co-Director of the Wisconsin Innocence Project. 

With this diversity of perspective and experience, the collection naturally formed into anthology that provides a 360 degree view of controversies associated with the American Innocence Movement. Moreover, to underscore the practical significant of the collection, the Arizona Justice Project provides a foreword intertwining the collection’s themes with its real-life experiences.

The collection is presented in four sections. Below I discuss some of the highlights across the collection.

PART I: THE RISE OF THE INNOCENCE MOVEMENT IN AMERICA

Part I charts the rise of the American Innocence Movement from the unique perspectives of Keith Findley, the President of the Innocence Network, and Jacqueline McMurtrie, the Director of the Innocence Project Northwest and founding member of the Innocence Network. 

Findley considers the Innocence Movement as the “new revolution” in American criminal justice, whereas McMurtrie approaches the journey of the Innocence Network “from beginning to branding,” considering notions of collaborative governance and future research about developing an Innocence Network brand. As such, these accounts of the development of this crucial era of American criminal justice are unrivalled.

PART II: HOW ARE INNOCENT PEOPLE CONVICTED? COMMON CAUSES OF WRONGFUL CONVICTRIONS

Part II explores some of the most common causes of wrongful convictions in America, providing a clear insight on how innocent people are convicted of crimes they did not commit. In chapter 3, Jules Epstein considers the “conundrum” of eyewitness misidentification, the most common cause of wrongful convictions in America with research showing around 75% of the DNA exonerations are attributable to such errors. More information about this pervasive issue can be found here: http://www.innocenceproject.org/understand/Eyewitness-Misidentification.php

In Chapter 4, Deborah Davis, Richard A. Leo and Michael J. Williams, examine the issue of false confession, with a particular concentration on interrogation-induced false confessions. They conclude a “real overhaul” of core interrogation techniques is required to resolve this problem.  The cases of John Watkins and Eddie Joe Lloyd showcase the need for this research. See:  http://www.innocenceproject.org/understand/False-Confessions.php.  

In Chapter 5, Lissa Griffin tackles the issue of the suppression of exculpatory evidence by prosecutors. Griffin explores the Brady doctrine from its conception in the United States Supreme Court to notions of formalised reform. She concludes that Brady has not provided “meaningful” protection for innocents. 

Finally, in a bespoke, Chapter 6, Carrie Leonetti considers the largely untouched issue of America’s contribution to wrongful convictions abroad via foreign aid programmes that provide far more extensive resources for prosecution bodies than defense. Leonetti concludes that America needs to “foster a domestic conversation” about the end goal of American rule of law programs, boldly stating “blindly doing more of the same will not work.”

PART III: REALITY BITES: PROBLEMS WITH INVESTIGATING, PROVING AND DEFINING INNOCENCE

In their foreword, leaders of the Arizona Justice Project state this section of the collection “largely reflects the debates and challenges we engage in daily.” They note familiarity with the “innocence lawyer” role discussed by D. Michael Risinger and Lesley C. Risinger in Chapter 7. 

The Risingers argue the emerging role of ‘innocence lawyer’ is different from the traditional criminal defense role, and warrants different ethical considerations. They say this role involves signalling a “well-warranted belief in actual innocence, or at least the gross unsafety of the verdict in regard to actual guilt.” They conclude that this role should be supported by any “mature legal system calling itself a system of individual justice.” 

In Chapter 8, Carrie Sperling – by highlighting the myriad of complex and stringent post-conviction procedures faced by a hypothetical innocent inmate – cleverly narrates the difficulties that result when finality and innocence collide. The Arizona Justice Project label the problems faced by the hypothetical inmate as “all too familiar.” 

Finally, in Chapter 9, Francine Banner critically examines the contemporary post-conviction innocence standard in light of the rise of DNA evidence; a crucial discussion in any anthology dedicated to innocence issues. To date, 316 people have been exonerated by post-conviction DNA evidence in America and access to DNA testing has been labelled a priority issue by the Innocence Network’s most famous member, The Innocence Project. The Innocence Project’s recommendations about access to DNA statutes can be found here: http://www.innocenceproject.org/fix/DNA-Testing-Access.php.

PART IV: INNOCENCE REFORM

The final section of the collection looks at how the Innocence Movement has encouraged reform across the American criminal justice system. In Chapter 11 I focus on the concept and development of innocence commissions across America since the new millennium. The chapter highlights how these bodies face tensions with traditional facets of the criminal justice system, framing issues, complex group dynamics and a lack of legitimacy and resources, which has, generally, prevented them from successfully integrating into the criminal justice system, as mechanisms for reducing the likelihood of wrongful convictions. 

In Chapter 10, Marvin Zalman and Nancy Marian take a wider, more eclectic approach to reform, exploring the policy work of the Innocence Movement in light existing policy making theories. They suggest innocence reform can be explained by borrowing elements from various existing theories, but no single theory. They conclude by encouraging scholars to engage in further research.

The collection has been described as a “provocative, insightful and valuable resource” by Barry C. Scheck and Peter J. Neufeld, the widely recognised God-fathers of the Innocence Movement. Similarly, Professor Daniel Medwed has described the collection as a “thoughtful and wide-ranging treatment of the topic and a major addition to the academic literature.” Larry Hammond, former President of the American Judicature Society, hails the “Hall of Fame” of contributors and describes the collection as a “roadmap” that might help “us more unerringly to convict the guilty and to free the innocent.”

Admittedly, the collection is not exhaustive, but it would be impossible to – no pun intended -- ‘do justice’ to such a vast, complex and ever-evolving area of discourse in a single collection. To that end, it has been a privilege to bring together a discussion of some of the most important issues in the world of innocence from the perspectives of people who engage with it in the most meaningful ways.

Controversies in Innocence Cases in America can be purchased at: http://www.ashgate.com/isbn/9781409463542




Thursday, 15 May 2014

Insights into the European External Action Service and the EU Strategy for the Global Abolition of the Death Penalty: Observations from a research visit


by Dr Jon Yorke, BCU School of Law

SINCE THE FIRST QUESTIONING of the death penalty in the European Parliament in 1979, the EU has solidified an absolute abolitionist position. The punishment is now removed from the EU and the last execution by a member state was in Latvia in 1996. The Charter of Fundamental Rights of the European Union, Article 2(2), prohibits the “death penalty” and “executions,” and in 2001 abolition became a prerequisite for membership to the EU. Consequently, the focus has predominantly turned to the wider world. In her speech to the European Parliament on 16 June 2010, Catherine Ashton, HRVP, stated that promoting the EU’s work for the global abolition of the death penalty was a “personal priority” of hers.

So the focus now shifts to the work of the EEAS within the EU’s Common Foreign and Security Policy (CFSP), and specifically through the EU Guidelines on the death penalty and the "minimum standards" of a Third countries' capital judicial process. At the structural level of the EEAS the death penalty is a “thematic issue.” To develop effective strategies to help promote abolition and react appropriately when a capital judicial process is initiated through death sentences to executions, the “geographic” department may be consulted to provide expert advice on cultural, political and legal issues of the region (for example, the United States, North Africa, the Commonwealth Caribbean, and Asia, have specific regional - cultural/political/theological - issues which need to be considered). The EEAS also consults the Council Working Group on Human Rights when specific cases are being monitored to determine the appropriate action to be taken.

Pre-Lisbon Treaty, the rotating Presidency of the EU would identify appropriate communications, or “demarche,” when a death sentence and/or execution was imminent in a Third country. Post-Lisbon, the authorship of demarche is now centralised within the EEAS. Under the pre-Lisbon rotating presidency, the right of initiative resided within the presiding member states and would be communicated to the relevant embassies. There were four types of statements given by the EU in death penalty cases: 1) a Declaration of the EU (this occurred when the member states were aligned on an issue – as in the abolition of the death penalty), 2) a Statement of the Presidency of the EU, 3) a Statement of the Spokesperson of the EU, and 4) Statement of the Local Embassy in the country imposing the death penalty. Following Lisbon and strengthened by the Council Decision No. 2010/427/EU establishing the EEAS, this has been streamlined and either Catherine Ashton or her representative makes the statement on behalf of the EU.  


Every 10 October, on the World and European Day Against the Death Penalty the EU, jointly with the Council of Europe, makes a statement against the death penalty and calls for worldwide abolition. The EEAS distributes training packs to each of its delegations for this day to raise awareness of the ineffectiveness and inhumanity of the punishment. This helps promote the abolitionist discourse globally, as the EU delegations share this information with the embassies in retentionist countries around the world. A mission inter-linking is embedded through the training on the death penalty for all EEAS staff including delegations and third party contractors.

Of the 139 EU delegations, the most sophisticated dissemination of information on the death penalty is found in the Delegation of the European Union to the United States. The US delegation effectively monitors the application of the death penalty across the United States, organises dialogues with state politicians, provides training on the punishment and facilitates legal services in capital cases. The delegation website gives comprehensive resources on the death penalty, including examples of demarche in state and federal cases, and links to the EU amicus curiae briefs filed in death penalty cases. The EU briefs fall under the competency of the European Commission, and are affirmed through the advice of the delegations. The briefs in the United States Supreme Court cases Atkins v. Virginia 536 U.S. 304 (2002) and Roper v. Simmons 543 U.S. 551 (2005) were seen to positively contribute to the majority court opinions in striking down the death penalty for people suffering from mild mental retardation (now termed, Intellectual and Developmental Disabilities) and for juveniles convicted of murder.        

There have been further notable successes of the EU abolitionist policies. Council Regulation (EC) No. 1236/2005, which prohibits trading in execution technologies was the first of its kind in the world. However, there was a clear lacuna in the text in that the Regulation identified the lethal injection apparatus, but did not include a designation of the execution protocol fluids to be administered. Catherine Ashton spoke in the European Parliament identifying the legislative deficiency and affirmed that the EU would rectify it. After the trade issues were dealt with by the Commission (DG Trade), the Regulation was amended with Commission Implementing Regulation (EU) No. 1352/2011 and now no EU member state can manufacture and/or export any chemical substance which would be used by a receiving state in an execution.    


The EU also has a significant multilateral function and the work of the EEAS can be seen to contribute to the strengthening of the UN General Assembly Resolution on the moratorium on the use of the death penalty, G.A. Res 67/176,U.N. Doc. A/RES/67/176 (20 December, 2012) – in which 110 member states voted in favour, 39 against, and 36 abstained. The next vote on the Resolution will occur in December 2014. Although the UN General Assembly granted the EU higher participation status it is not the “lead” on the Resolution vote, but is part of the cross-regional alliance for achieving a global removal of the death penalty. What this demonstrates is that the abolition of the death penalty is not today a “western” or “European” discourse, but it is a question of human rights which affects all people. The Resolution vote demonstrates that the death penalty is a cross-cultural and political issue.

Where can the EEAS enhance the death penalty discourse for achieving the goal of worldwide abolition?

Admitedly, we now find before us the hard task of asking resolute retentionist countries to abolish the death penalty. The future must see the abolitionist movement tackle the vestiges of absolute sovereign power. It must use human rights, the dismantling of the statist monopoly of criminal sanctions, and the deconstruction/reinterpretation of transcendent ideology/theology, to sever from sovereignty the power and right to put to death through capital punishment.


The EEAS is now a crucially important component of the worldwide movement for the abolition of the death penalty. It complements NGOs such as the World Coalition Against the Death Penalty, the International Academic Network for the Abolition of Capital Punishment, Amicus, Reprieve, and the International Commission Against the Death Penalty. It appears that the challenges ahead will need to be met through a collaborative effort. It must form a structural attack on the punishment at the bilateral and multilateral levels by governments and political regions, but also, crucially important will be the role of civil society and the cosmopolitan citizen in participation and contribution to events such as the World/European Day Against the Death Penalty. It is a government/citizen symbiosis.

This symbiosis can perhaps be viewed as an approach in hybridity discourse. It is hybrid because it involves governments and citizens of abolitionism verses the (dwindling) governments and peoples of retentionism. What is revealed by the current global trend towards abolition is that from the oldest legal code, most likely the Babylonian Code of Hammurabi (circa 1850 BC), to the mid-1980s, there was not a global drive to denounce the death penalty. The power of political sovereignty to use the death penalty has been only peripherally challenged for circa 3830 years. If we can point to around the late-1980s as the beginning of significant change, and the possibilities of global abolition solidifying, then we have only been able to see the light at the end of the tunnel for around 30 years. The global abolitionist movement is still only in the neonatal stage. It will grow-up and the EEAS has an important role in helping it to achieve maturity.
         
Postscript


My research visit to the European External Action Service, builds upon an article I co-wrote with Christian Behrmann, The European Union and the Abolition of the Death Penalty, 4 Pace Int’l L. Rev. Online Companion 1 (2013). I am very grateful for the engaging conversations with EEAS members on the post-Lisbon Treaty external strategy. I am extremely grateful to Christian Behrmann and Antonis Alexandris for their every helpful discussions on the EEAS and the death penalty.  

Tuesday, 6 May 2014

The Controversy of Clemency and Innocence in America

by Sarah Lucy Cooper, Barrister and Senior Lecturer in Law, BCU Law School

IN FEBRUARY 2014 I was invited to present at the Academy of Criminal Justice Sciences Annual Conference in Philadelphia. The theme of the conference was “Perceptions of Crime and Justice,” with hundreds of scholars and practitioners, from across the world’s criminal justice systems, contributing the fruits of their research and field experience on a variety of panels. Philadelphia – the historical heart of the United States’ Constitution and Independence – was the perfect venue for a conference that naturally centred on themes of justice (picture opposite, Independence Hal, Philadelphia). I took the opportunity to share research Daniel Gough and I have conducted concerning the relationship between the American clemency system and innocence claims.

Clemency has been embedded in the American criminal justice system since the United States Constitution was drafted. Justified under a mixture of retributive, redemptive and utilitarian principles, “clemency” covers a variety of executive mechanisms an executive can use to relieve offenders, including pardons, commutation of sentences, reprieves and the remission of fines and forfeitures. Through these mechanisms, executives (and/or administrative bodies) can, inter alia, restore civil rights, acknowledge mitigating circumstances, correct egregious sentences, prevent deportations, and support political agendas.  They can also correct the wrongful conviction of innocents.

In the 1993 case of Herrera v Collins (1993) 506 US 90, the United States Supreme Court (USSC) placed great confidence in the clemency function to remedy wrongful convictions. In ruling that Herrera’s claim of actual innocence (absent some other procedural violation in his case) was not a ground for federal habeas relief, the USSC held that (1) clemency was the “failsafe” of the criminal justice system; (2) the state clemency process was the proper mechanism for assessing innocence claims; and (3) clemency had been the historic remedy for preventing miscarriages of justice where the judicial process had been exhausted.

Herrera was decided just as the American Innocence Movement was gaining momentum. In 1992, the Innocence Project had been formed by Barry Scheck and Peter Neufeld and, by the end of 1993, a combination of Innocence Project and National Registry of Exoneration numbers reported that over 100 people had been exonerated, including fourteen whose innocence had been conclusively proven by post-conviction DNA evidence. However, since then, a number of disturbing cases – such as that of Cameron Todd Willingham and Troy Anthony Davies – have steadily highlighted the impotency of clemency for providing relief to innocent inmates. Despite presenting significant evidence of innocence, Willingham and Davies were refused clemency by Governors in Texas and Georgia respectively and, soon-after, executed. Moreover, concerns about such decisions have been exacerbated by the USSC’s decision in Ohio Adult Parole Authority v Woodard 523 U.S. 272 (1998), to afford only “minimal” due process protections to defendants in clemency proceedings and, contradictorily, hold that clemency proceedings are not “an integral part of the…system for finally adjudicating guilt or innocence of a defendant.” (Id.)

With this legal landscape as a backdrop, the research conducted by Daniel and I considers to what extent clemency is fit to handle innocence claims, in particular from the perspective of innocents who are incarcerated and seeking post-conviction relief. First, we trace the history of clemency, demonstrating how the function has never truly been one of legal significance but rather political power and policy-making, which is unfavorable to innocents. Second, we consider current clemency procedures across America, identifying obstacles for innocents applying for relief. These obstacles include a lack of transparency and meaningful review, high eligibility and relief thresholds, and unfavorable procedures and administrative board compositions. Third, we evaluate the effectiveness of Woodard’s minimal due process standard for protecting against allegedly unconstitutional clemency procedures, by reviewing a cohort of cases where such claims have been made. The rulings is these cases show, overall, courts to be applying Woodard very narrowly, a practice that has allowed clemency frameworks with significant deficiencies to continue without judicial intervention. Finally, we conclude that with little history or current frameworks dedicated to innocence claims, obstacles to meaningful review, antipathetic executive attitudes, minimal constitutional protection, and courts reluctant to interfere, clemency, to a large extent, is a hostile environment for innocence claims.

The findings of our research appear all the more important after a study released in May, 2014 concluded that 4% of defendants sentenced to death in America are innocent. Although not focused on clemency, the findings of the study should lead us to question more aggressively the utility of the clemency system for innocence claims. The study concluded that “the great majority of innocent defendants who are convicted of capital murder in the United States are neither executed nor exonerated. They are sentenced, or resentenced to prison for life, and then forgotten.” Lead researcher, Professor Samuel Gross, commented to The Guardian “In many cases when people are released from death row, little or nothing is done to deal with the equally bad injustice they now face – that they will spend the rest of their lives in prison for a crime they didn’t commit.”  For these defendants, clemency will be a crucial, if not the only, remaining avenue for obtaining relief once their post-conviction arsenal has ran out. As such, the need to resolve the tension between the clemency systems and innocence has never been greater.

References
Sarah Lucy Cooper & Daniel Gough, The Controversy of Clemency and Innocence in America (forthcoming 2014).
Herrera v Collins (1993) 506 US 90
Ohio Adult Parole Authority v Woodard 523 U.S. 272 (1998)

Thursday, 1 May 2014

First Publication: Ashgate Series, Controversies in American Constitutional Law

I am delighted to announce the first publication in the Ashgate Series, Controversies in American Constitutional Law. It is:

Sarah Lucy Cooper (ed), Controversies in Innocence Cases in America, Ashgate, 2014.

The book info:

Controversies in Innocence Cases in America brings together leading experts on the investigation, litigation, and scholarly analysis of innocence cases in America, from legal, political and ethical perspectives. The contributors, many of whom work on these cases daily, investigate contemporary issues presented by innocence cases and the exoneration movement as a whole. These issues include the challenges faced by the movement, causes of wrongful convictions, problems associated with investigating, proving, and defining 'innocence', and theories of reform. Each issue is placed within a multi-disciplinary perspective to provide cogent observations and recommendations for the effective handling of these cases, and for what changes should be adopted in order to improve the American criminal justice system when it is faced with its most harrowing sight: an innocent defendant.

Dr Anne Richardson Oaks and I are the Series Editors and the series info is:

Controversies in American Constitutional Law presents and engages with the contemporary developments and policies which mould and challenge U.S. constitutional law and practice. It deals with the full spectrum of constitutional issues, publishing work by scholars from a range of disciplines who tackle current legal issues by reference to their underlying legal and political histories and the philosophical perspectives that they represent. Its cross-disciplinary approach encourages analysis of past, present and future challenges to the idea of U.S. constitutionalism and the power structures upon which it rests. The series provides a forum for scholars to challenge the boundaries of U.S. constitutional law and engages with the continual process of constitutional refinement for the protection of individual rights and liberties, within an evolving framework of legitimate government. CALS promotes research, scholarship, and educative programs in all areas of U.S. law, and is the home of the British Journal of American Legal Studies. Faculty members have extensive experience in submitting amicus curiae briefs to the United States Supreme Court and lower federal courts, and advising on criminal justice issues in many states. CALS coordinates the largest British law undergraduate internship program to the United States. Through this program, and members’ research, CALS has created relationships with over one hundred partners in over twenty-five states. CALS faculty advise public bodies, provide professional training, and speak at conferences across the USA.

 If you are interested in submitting a book/collection proposal for this series, please contact me on: jon.yorke@bcu.ac.uk

Controversies in Innocence Cases in America by Sarah Lucy Cooper

Controversies in Innocence Cases in America by Sarah Lucy Cooper

Monday, 7 April 2014

Storify of the Model United Nations at the Foreign and Commonwealth Office


It you would like to find out how the BCU Law Students and the FCO Youth Inspiration Group performed at the Model United Nations hosted by the FCO, and what was stated on twitter about the event, please see,

https://storify.com/JonYorke/model-united-nations-security-council-hosted-by-th


Monday, 10 March 2014

The FCO/BCU Model United Nations Security Council: A Fantastic Legal Experience

Mr. Lamiegha Brinemugha
LL.M. International Human Rights Law (2013-2014)

IT WAS A DREAM come true to be part of the Model United Nations Security Council meeting at the Foreign and Commonwealth Office on February 11, 2014 held in partnership with the FCO Youth Inspiration Group and the Birmingham City University School of Law. I had the honour of representing Guatemala as Foreign Affairs Minister in the Security Council meeting with a view to resolving a fictional crisis in the created African country of Ruritania.

I gained invaluable legal and international relations experience during the MUN. It helped to reveal to me the practical workings and implications of decisions made at the multilateral level of the United Nations.  

International legal sanctions are sometimes expressions of a particular discourse rather than a reflection on the seriousness of the compelling humanitarian issues. It demonstrated to me that member state decisions are very likely characterized in “politics by other means” (both explicitly and implicitly) through high powered diplomacy and in some cases certain resolutions lead to adverse humanitarian crises rather than ameliorating the situation.

An extremely interesting aspect of the event was our “alliance building” for voting on the resolution to be drafted at the end of the session. It revealed to me that many states were not too concerned with the human rights issues and the humanitarian implications, but that they were distracted with how America appeared to have an overarching agenda against the sanctions on Ruritiania.

These developments led to a coalition against America’s interests during the voting session. Thus, some resolutions passed were not really in the interest of the crisis ridden Ruritania but against the motivations of some powerful states.

The MUN was concluded by a resolution drafting session. It quickly became apparent that the legislative language could not be vague and ambiguous so as to render ineffective the implementation of the text. For instance, the Security Council resolution 678 passed on November 29, 1990, authorized member states to use ‘all necessary means’ to  implement Resolution 660 (1990) and all subsequent resolutions to restore peace in Iraq. So at the end of the MUN we were able to draft a “Resolution on Ruritania” but it was not to the satisfaction of all the member states. Perhaps this is exactly how it is in the United Nations’ Security Council?  

Foreign and Commonwealth Office Presentations

We were extremely fortunate to hear from some very prestigious speakers. Ms. Sue Owen, Permanent Secretary, Department of Culture, Media and Sport, spoke very persuasively on the need to increase the employment of women in senior civil service roles. Information was key for helping women progress and the window of direct employment of women into senior positions in the civil service should be opened wider. Ms. Owen used statistical data to advocate for women to get more equal access to senior positions. She cogently identified that a successful team leader must engage in the morale building of women team members and as well identify the strengths and weakness of each member.

We also had a very engaging speech by Mr. Robert Hannigan, Director General for Defense and Security. Mr. Hannigan noted some challenges facing the UN Security Council such as protecting the sovereignty of a state, the veto power of the permanent members, and he gave the audience some valuable insights into the role of the civil service in collating intelligence and the importance of the use of intelligence for appropriate political decisions at the multilateral level.

Then Ms. Melinda Simmons, Head of the Conflict Department, highlighted the challenges posed by member states in protecting their respective interests in areas embroiled in crisis. Ms. Simmons submitted that while the United Nations is an agent of change and promotion of international peace and security, there are constant political challenges that need to be navigated. Recent conflicts in Eastern Europe and Africa were discussed, and she identified that effective dialogue is crucial for the dissipation of conflicts. As a means of preventing conflicts from escalating, countries should be encouraged to enter into bilateral and multilateral treaties, which detail appropriate intervention without unjustifiably undermining the sovereignty of a state. Ms. Simmons maintained that the multilateral political fora was crucially important for maintaining peace in the world.

Concluding Comments   

Interacting with the FCO Youth Inspiration Group was also very rewarding. The YIG were a fantastic group and we all enjoyed our collaborations with them. I had the opportunity of sharing ideas with the group especially on foreign policy as it affects the workings/challenges of the United Nations.

A special thank you to Dr Jon Yorke and Emily Farrow of the Foreign and Commonwealth Office, and the other personnel at the FCO who helped organize the MUN. This event created an invaluable educative platform for interaction, networking and sharing of ideas. We also had an event Facebook page www.facebook.com/BCUMUN?ref=stream  which was a generative resource for materials and pre-event discussions at the MUN.


By way of passing remark, all participants at the MUN whether as participants or otherwise should be given a certificate signed by the FCO and organizing University. I look forward to working with the United Nations or Foreign and Commonwealth Office someday.

Friday, 7 March 2014

The state of Missouri and compounding pharmacies: a Taylor made solution?


By Aaron Bailey, Technical Editor
LLM International Human Rights Law 2013-2014 
ON 26 FEBRUARY 2014 Michael Taylor was executed by the state of Missouri using an execution drug (pentobarbital) which the state had acquired from an unspecified source and which had not been subject to testing for purity, potency or contamination. This article discusses the constitutionality of Missouri’s actions and the differing views offered by both the majority and the dissenting minority in the U.S Court of Appeal (8th Circuit).
In 1989 Michael Taylor was convicted of the rape and murder of a young female victim. Both Taylor and his co-defendant, Roderick Nunley, were sentenced to death following their convictions. It is noteworthy that Taylor had pleaded guilty to the charges and demonstrated remorse very early on in the proceedings yet the District Attorney at the time still felt compelled to seek the death penalty. Unfortunate though it was, one can only speculate on the DA’s reasons for seeking the death penalty and that remains, frankly, outside the scope of this article.
The real focus of this article is on the final appeal to the U.S Court of Appeal the day before the execution and the previous appeal (again to the 8th Circuit of the U.S Court of Appeal) approximately one month before. These appeals both turned on the same legal question: whether failure to disclose information pertaining to the execution drug could result in a prolonged and painful execution therefore violating the Eighth Amendment of the United States Constitution.
The Eighth Amendment guarantees that no-one shall be subject to ‘cruel and unusual punishments’. Of course, what constitutes ‘cruel and unusual punishment’ is naturally a question open to interpretation. In 2008 the Supreme Court, ruling in the case of Baze v Rees, decided that “the Eighth Amendment compels an execution free from an objectively intolerable risk of harm”. Applying this to the Taylor appeal, the question to be asked was therefore whether Missouri’s potentially questionable source of the Pentobarbital and their failure to disclose the source, purity and potency of the drug, could lead to an ‘objectively intolerable risk of harm’ to Mr Taylor. The case was put before the Court of Appeal on January 24th and again on February 25th; the day before Mr Taylor was executed.
In the first judgement (24th January) reaching their decision the majority of the 8th Circuit Court of Appeal relied heavily on an interpretation of Chief Justice Roberts’ opinion in Baze v Rees that if a death row inmate is challenging an existing method of execution, they must plead a ‘readily available alternative method’. As Taylor et al were unable to suggest a different, suitable method the majority of the Court of Appeal held that their challenge of the existing method couldn’t succeed. Interestingly, Circuit Judge Bye (in his dissenting opinion) claims that: a) the requirement to suggest another method poses an absurd burden on the death row inmates and; b) that even if this ‘absurd burden’ was the standard, Taylor et al were suggesting another suitable method – involving the same use of pentobarbital but, crucially, pentobarbital that had been manufactured by an FDA (Food and Drug Administration) approved compounding pharmacy and had been tested for purity, potency and contaminants.
Despite the persuasive arguments made by Taylor’s attorney, the majority of the Court found in favour of Lombardi (Director of Missouri Department of Corrections) and therefore allowed the state to press ahead with the use of Pentobarbital without specifying any further details regarding the drug. However, less than two weeks before Taylor’s scheduled execution, details of the compounding pharmacy were leaked to the press. Naturally the pharmacy was subject to negative commentary in the press and, as a result, refused to supply the Pentobarbital to Missouri D.O.C for use in Taylor’s execution. Faced with yet another delay, Missouri D.O.C managed to appropriate another quantity of Pentobarbital from a different source. Taylor’s attorney launched a new appeal on similar facts, which was swiftly dismissed by the Missouri District Court. Taylor’s attorney then proceeded to petition the Court of Appeal for a rehearing. Unfortunately the majority of the court denied the petition and Taylor was executed the very next day. Yet in his dissenting opinion, Circuit Judge Bye (whose opinion was approved by Judges Murphy and Kelly) raises some salient points.
Circuit Judge Bye claimed that from the lack of information provided by Missouri, the ‘pharmacy’ could be nothing more than a high school chemistry class. This of course, leaves open “the possibility that the ingredients do not meet legal or medical standards”. Judge Bye went even further asserting that “Missouri is actively seeking to avoid adequate testing of the alleged pentobarbital, which raises serious questions about the drug’s safety and effectiveness”. Many would agree that Judge Bye is correct to be concerned about the efficacy and safety of the pentobarbital when the manufacturing of this drug has not been approved by the FDA (Food and Drug Administration).
Additionally Judge Bye agrees with the argument put forward by Taylors’s attorney as he states: “nothing Taylor asks for would place an undue burden on Missouri. He simply seeks transparency concerning the manufacturer of the chemical used to execute a death sentence and testing of the chemical for identity, potency, purity and contamination. Considering the enormity of the issue at stake, this is a burden which is entirely due”.

It would appear then, to the casual observer, that the 8th Circuit Court of Appeal has been and continues to remain divided over how to tackle the ‘methods of execution’ question. With pharmaceutical companies and compounding pharmacies wary of the negative attention from the press, most remain reluctant to manufacture execution drugs and those that do, are determined to remain anonymous. Furthermore, considering the anti-death penalty stance of the European Union and restrictions placed on the export of execution drugs (see regulation 1352/2011) it seems likely that the ‘methods of execution’ question is likely to arise repeatedly in the foreseeable future. Of course whilst the approach of the E.U is commendable and has certainly played a part in the decision of some states to reconsider their stance on the death penalty (eg  - State of Maryland – abolished death penalty in May 2013) it may also potentially lead, albeit indirectly, to the return to less humane execution methods. Recently several senators have advocated a return to firing squads, gas chambers and electric chairs as methods to execute death sentences. No doubt, should the state choose to proceed with these methods, their constitutionality will be challenged before the courts. Rightly so, most would say.

 In conclusion one must see the Taylor decision as important for two reasons. Firstly, as described by Circuit Judge Bye, it shows a continuation of Missouri’s “storied history of ignoring death row inmates’ constitutional rights to federal review of their execution.” Yet the second reason remains the most important for it demonstrates that both the state of Missouri and the majority of the Court of Appeal (8th Circuit) maintain a dogged commitment to achieving the ends, with seemingly little regard to the means. In the light of allegedly ‘botched’ executions such as that of Dennis McGuire (executed in Ohio on January 16th 2014) the question that must be asked is simply: at what point are the means no longer justified by the ends?


Sources:

-        Re Lombardi 741 F.3d 888 C.A.8 (Mo.),2014.

-        Zink, et al. v. Lombardi, et al., No. 14-1388 (8th Cir., Feb. 25, 2014)

-        Baze .v. Rees 553 U.S 35 (2008)

-        I witnessed Ohio's execution of Dennis McGuire. What I saw was inhumane, http://www.theguardian.com/commentisfree/2014/jan/22/ohio-mcguire-execution-untested-lethal-injection-inhumane

-        The return of the firing squad? US states reconsider execution methods,
http://www.theguardian.com/world/2014/jan/28/return-firing-squad-us-states-execution-methods


-        States with and without the death penalty, http://www.deathpenaltyinfo.org/states-and-without-death-penalty