criminal justice

28 articles in category criminal justice / Subscribe

Here’s quite a fascinating TED talk by Kimberley Motley,who I know has been somewhat of a controversial figure in Afghanistan in the past. She has some interesting thoughts on what it’s like to be a lawyer, representing clients and promoting rule of law in fragile states such as Afghanistan. She represents an interesting array of cases, including gender-based violence and human rights cases in Afghanistan.

Her main thrust in this talk, which I have always agreed with  – is that in many countries, there are already many laws on the books that could protect and promote human rights. Even within Shari’a law, there are ways to interpret key statutes and the Quran in ways that are gender-equitable. There are many laws relating to family and criminal law on the books in Afghanistan and elsewhere that are indeed, good for rights. The problem is that these laws are not being used. When they are implemented effectively by lawyers who are good at advocating for their clients, you can truly foster a culture of ‘rule of law.’

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As someone who works on issues of domestic violence, one question I frequently ask is: how can we rely on the state’s violent, coercive power to counter and resolve another issue of ‘private’ violence? The criminal justice system and prosecution of domestic abusers is a solution often put forth when it comes to providing accountability and promoting deterrence in cases of gender-based and domestic violence. Perhaps if we prosecute more often (considering the rate of prosecution is incredibly low for a variety of reasons — patriarchal beliefs among police and the justice system, the intimate relationships between abusers and survivors, the mistrust of many communities of the police and criminal justice system, etc) we can drive down the rate of violence by sending a clear message that this kind of behavior is not tolerated in our society, that we are on the side of victims and survivors.

But I often question our ability to turn, automatically, to the criminal justice system to resolve GBV and DV cases. This system is in itself incredibly violent, unjust, and racist, at least in the United States. Here, the criminal justice system is in essence mass incarceration of minorities, especially African American men, as expounded so perfectly by Michelle Alexander in The New Jim Crow: Mass Incarceration in the Age of Colorblindness. There is a disproportionate incarceration and conviction of black men, so the justice system is not enforced equally on all racial and ethnic groups that may be engaging in violence against women at equal/similar rates. Beyond this, the prison system is incredibly flawed. The conditions can be horrific — not just in the U.S. but around the world. In the U.S., prison rape is incredibly common, frightfully so. There are gendered dynamics and hierarchies within prisons, and prisons can be incredibly violent places that create more trauma.  Can a system that produces more injustice, including violent rape, be used to help solve patriarchy? I simply don’t think so, and I am deeply disturbed by these dynamics.

My question is — can we really rely on one inequitable, incredibly unjust system to fix another problem of injustice? In my mind, the criminal justice system involves deep inequity and oppression; and so does patriarchy. We cannot really depend on criminal justice until this system is fair and equitable, in itself.

This excellent article by Victoria Law speaks to this problem in a more eloquent way. She writes,

Casting policing and prisons as the solution to domestic violence both justifies increases to police and prison budgets and diverts attention from the cuts to programs that enable survivors to escape, such as shelters, public housing, and welfare. And finally, positioning police and prisons as the principal antidote discourages seeking other responses, including community interventions and long-term organizing…..

As these examples demonstrate, strategies to stop domestic violence frequently require more than a single action. They often require a long-term commitment from friends and community to keep a person safe, as in Piepnza-Samarasinha’s case. For those involved in devising alternatives, like the women in Halifax, it may require not only creating immediate safety tactics, but long-term organizing that addresses the underlying inequalities that exacerbate domestic violence.

By relying solely on a criminalized response, carceral feminism fails to address these social and economic inequities, let alone advocate for policies that ensure women are not economically dependent on abusive partners. Carceral feminism fails to address the myriad forms of violence faced by women, including police violence and mass incarceration. It fails to address factors that exacerbate abuse, such as male entitlement, economic inequality, the lack of safe and affordable housing, and the absence of other resources.

I would agree that a sole focus on criminalization is not necessarily productive. We need a more holistic, deeper look at the origin of violence against women and patriarchy, and the social determinants and results of this problem. Moving to criminalization means we are relying on one unjust and patriarchal system (which too often fails survivors and even imprisons them, as the article talks about) that fails to empower anyone or attack the root causes of violence. Until we fix the criminal justice system, in the U.S. and internationally, I don’t think we should feel too comfortable pushing for criminalization as a solution to gendered violence.

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While statistics on the number and percentage of persons formally accused of crime who are detained in custody pending trial are problematic, available evidence suggests that in practice, pretrial detention is far from being the “exception to the rule” that international law demands. In many countries the international standards are not observed. Globally, at any time, just under one third of people in prison are being held in pretrial detention. In Asia, the proportion is 47.8 percent, for Africa 35.2 percent, in the Americas it is 25.2 percent, and in Europe it is 20.5 percent. It has been reliably estimated that about three million people are in pretrial detention at any given time. That figure provides a snapshot of the pretrial detention population, and in any one year a far higher number of people are placed in custody without having been tried. It has been estimated that in a typical year 10 million people enter pretrial detention.

That quote is from the excellent report, Improving Pretrial Justice: The Roles of Lawyers and Paralegals by the Open Society Institute. Here is one of my favorite quotes from the report:

There is growing awareness that, as with primary health services, there is a need for primary justice services. The emergence of legal empowerment strategies in poor communities, growing recognition of paralegals as a cadre of front-line legal service providers, and increasing support amongst donors, academics, and university law clinics, suggest a broadening outlook in response to the unmet needs of ordinary people. Put another way, there is a need for “different types of lawyers” better suited to the particular circumstances, especially in low income countries.

A really incredible article, and I highly recommend a read for anyone interested in the positive impact of training lawyers and paralegals across Africa, Asia and Latin America. I love OSJI for spearheading the movement for legal empowerment and community-based legal services!

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This Friday, I want to feature something a little different. Not an organization, but a little-known new UN Resolution which is truly groundbreaking. In a number of countries across Africa, Asia, and Latin America, access to legal services (even when accused of a crime) is unfortunately not a guaranteed human right. In the U.S., our criminal justice system is deeply flawed and racialized, with unequal access to high-quality criminal defense. However, this basic right is not even guaranteed for the poor in many parts of the world, leading to protracted pre-trial detention periods.

Often, people have been in prison for up to 10 years (!) without ever having met a lawyer or seen the inside of a courtroom. On top of this, prison conditions in many countries are so wretched that many prisoners – convicted and pre-trial alike – never get out. Tuberculosis, malaria, and other infectious diseases, combined with poor sanitation and lack of space in many cases leads to illness or death. The number of lawyers in several countries is grossly inadequate compared to the need for legal services. So, it is clear why states must begin instituting public defense systems to ensure those charged with a crime can be adequately represented.

Enter the UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, adopted by the UN Commission on Crime Prevention and Criminal Justice.  This is the first international instrument on legal aid, so it is truly groundbreaking. According to a great blog post by the Open Society Institute:

The genesis of this resolution was the 2004 Lilongwe Declaration on Accessing Legal Aid in the Criminal Justice System in Africa. In 2007 ECOSOC called on the United Nations Office on Drugs and Crime to develop a global instrument. Since 2009 groups of experts, from all continents, including the Open Society Justice Initiative, have gathered several times in Vienna to draw together best practices and develop a draft that was reviewed by the Member States in 2011. The result is a practical document that traces the criminal justice system from the pretrial to post-trial stage and highlights a number of important components:

  • Prompt access to legal aid at all stages of the criminal justice process.
  • The involvement of a diversity of legal aid providers including lawyers, university legal clinicians and paralegals.
  • The development of a nationwide legal aid system that is sufficiently staffed and resourced.

Namati also has a good overview. This is deeply exciting and inspiring news: the world is finally beginning to recognize the importance of basic legal services for the poor. Of course, now begins the hard work of implementation, but this instrument can provide a basic foundation and blueprint from which governments and civil society groups can start. And with an eye to legal aid issues related to gender: I also hope we can eventually move towards similar resolutions relating to legal services for survivors of gender-based violence as well as asylum seekers, populations who are also in dire need of basic legal services, and who are frequently in life and death situations to boot.

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Recently, I’ve been thinking about the racialized nature of the criminal justice system in our country. In my work, I encounter a lot of police brutality and misconduct cases in Washington D.C. and the unfortunate truth is that police in this country are given an enormous amount of discretion on how to treat everyday people. That is why the recent death of Trayvon Martin – a young unarmed African American teenager who was shot by a neighborhood watch organizer for the Sanford PD while walking home, with candy in his hand – comes as no surprise to me. Perhaps I am desensitized by now – perhaps I have heard too many of these sad and shocking stories that I cannot stir up depth of emotion for this one – but when I heard the news about Martin’s death, I can say it did not shock me anymore. Martin’s death is a tragedy — but a tragedy that is all too common in the United States.

We are the “leader of the free world” — but in communities of color, the United States ceases to be a democracy, and instead transforms into a militarized police state fighting a war against poor minorities. The state represents rampant police misconduct, unjust imprisonment and destroyed families in far too many of our inner city communities.

Worst of all, this war being waged is an unjust one.

How unjust it really is has been illuminated for me through the amazing book “The New Jim Crow: Mass Incarceration in the Age of Colorblindness” by Michelle Alexander. It is an eye-opening, searing expose on the fact that our country is operating a racial caste system through the overincarceration of young Black men. Through the mass incarceration of black people for minor drug crimes via the “war on drugs,” and then the imposition of insane restrictions on ex-offenders who have the label of “felon” for life — such as restrictions on public housing, outward discrimination by private housing providers and employers, and restrictions on other public benefits and student loans — we are truly creating a new system of “jim crow” laws and regulations that prevent African Americans from ever really entering the mainstream economy. Here are some facts that might shock you (Source: The New Jim Crow):

  • Human Rights Watch reported in 2000 in seven states that African Americans make up 80-90% of all drug offenders sent to prison (p. 96)
  • In at least 15 states, black people are imprisoned for drug charges at a rate from 20 to 57 times greater than that of white men (p. 96)
  • The majority of illegal drug users and dealers are white, but 3/4 of all people imprisoned for drug offenses have been black or Latino (p. 96-97)
  • Surveys have shown that people of all races use and sell drugs at similar rates, and white people – especially youth – are more likely to engage in illegal drug dealing than people of color (p. 97)
  • A 2000 study reported that white students use cocaine seven times the rate of black students, use crack cocaine eight times the rate of black students, and heroin at seven times the rate of black students; nearly identical percentages of white and black high school seniors use marijuana (p. 97)
  • Georgia prosecutors sought the death penalty in 70% of cases involving black defendants and white victims, but only in 19% of the cases involving white defendants and black victims (p. 107)
  • Under Georgia’s two strikes law – which imposes life imprisonment for a 2nd drug offense – 98.4% serving the life sentence were black! (p. 111)

Outwardly racist comments may no longer be uttered or accepted, but internalized racism – amplified by the news media portrayals of African Americans – cause police and prosecutors to think “criminal” or “drug dealer” when encountering a young black man on the street.

On the same note, watch this TED Talk by Bryan Stevenson, an incredible death penalty lawyer who founded Equal Justice Initiative and is also a professor at NYU Law School (I’m actually going to get to see him speak next week at NYU – I’m so thrilled and can’t wait!).  Stevenson is an incredible man who speaks with humility and passion about the injustices happening in our own country – about this very issue of the incredible racial disparities in our criminal justice system. Watch his talk below:

What happened to Trayvon is undeniably wrong. But I hope at the very least, his untimely death sparks a nationwide discussion about the state of our country’s prisons and jails, and the injustice of a criminal justice system that discriminates and creates a new racial caste. Only by recognizing the problem can we begin a movement to change the status quo.

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I’m incredibly excited that one of my favorite organizations – International Bridges to Justice – has launched a TED talk by Founder & CEO, Karen Tse. IBJ is also featured as #3 on Huffington Post’s “Best of TED 2011 Countdown.” Take a few minutes to watch Karen’s talk below — and to join us in the movement to end torture.

During my time interning with International Bridges to Justice and speaking with Karen, I have been truly inspired by their vision to end torture in our lifetime — and their model of strengthening legal systems, training and funding lawyers and legal aid centers, and providing legal awareness to citizens, prison officials, prisoners, and police officers to ensure that torture is ended as an investigative tool. IBJ works to ensure that all prisoners have access to competent legal representation at an early stage, because providing legal aid has been proven to be a powerful tool to end torture. Defenders have begun to stand up and conduct thorough investigations with the help of training and resources from IBJ.

IBJ’s aim is to strengthen and give teeth to laws that many developing countries already have. IBJ helps governments implement rule of law on the ground:

Despite the historic spread of democracy in the past two decades, the rule of law remains a dream for the majority of the poor. Legal protections from arbitrary detention and torture have never been realized.

The good news is that laws prohibiting this practice exist in 93 of the 113 countries that continue to practice torture routinely as an investigative tool. This means that the prevalence of investigative torture today is completely preventable if we commit to working with these countries toward implementing their own domestic laws. The fundamental rights these laws are intended to protect are enshrined in the Universal Declaration of Human Rights signed more than 60 years ago. Unfortunately, we have not prioritized the implementation of these rights and torture continues as the cheapest form of investigation. If we make a concrete commitment and ensure the necessary resources to build local legal infrastructure, we can breathe life into the very laws that ensure the protection of individuals.

 IBJ has also developed a 12 year strategic plan to end torture, which outlines how we can build a movement to end torture and ensure early access to counsel. Moreover, they have real results: “IBJ has dramatically reduced the incidence of torture in three Cambodian provinces, handling over a thousand cases and at the same time reaching 6.5 million people through a national radio-driven public awareness campaign. The case statistics are startling: Between October 2008 and June 2011, IBJ lawyers handled some 1,481 cases, of which 793 are closed, achieving remarkable results: 55% sentence mitigation, 10% dismissal and 8% acquittal on all charges, and – most importantly – significantly decreased instances of torture.”
Check out their inspiring strategic plan below to get a better understanding of this growing movement:

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I was thrilled to find this TEDxZurich talk by Karen Tse, Founder and CEO of International Bridges to Justice (IBJ). I previously interned with IBJ and to this day, credit my time there for sparking my passion for access to justice issues. IBJ is an incredible and innovative organization that works to end torture worldwide by helping countries strengthen their criminal justice systems and train effective criminal defense lawyers.

Karen is the recipient of so many awards – Skoll, Echoing Green, Ashoka, and the list goes on. More importantly, her work is truly inspiring and fills a necessary gap. IBJ is addressing a need that is clear to me — the rights of prisoners and the accused worldwide. Going from naming/shaming countries to working hand-in-hand with them, and with local leaders, to implement the laws in their books, on the ground.

Listen to this talk; I love it. Very inspiring and highlights how much work we need to do to end torture– but also provides hope that it can be done.

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My work with legal and access to justice non-profits has starkly highlighted to me the importance and necessity of holistic advocacy, and yet the unfortunate rarity of the practice. As I’ve written here before, holistic advocacy is simply the idea that social problems are all deeply interrelated and thus require service delivery non-profits to focus on an individual as a whole, in a comprehensive manner, in order to effectively solve their problems, help pull them out of poverty, and affect true change.

I’ve drawn this model from the Bronx Defenders, who have a brilliant “Center for Holistic Defense.” They define holistic defense as:

A client-centered and interdisciplinary model of public defense that addresses the circumstances driving poor people into the criminal justice system and the consequences of that involvement by offering criminal and civil legal representation, social work support, and advocacy in the client community.

Such a model of interdisciplinary advocacy on behalf of the client can be applied in a wide range of legal aid fields (not just criminal defense), to ensure the client is pulled out of poverty in a truly sustainable manner. Sadly, most legal organizations don’t seem to take this approach, instead choosing to solely solve a client’s narrow legal problem – by representing an individual in a discrimination claim, criminal charge, asylum application, or divorce proceeding – for example. But quite honestly, I still cannot fathom how an organization can help clients with one narrow legal problem, and then ignore other aspects of their lives.

And yet, it happens all. the. time.

Let me give three key examples where the need for holistic, comprehensive advocacy by legal service providers is clearly needed.

1) Domestic and gender-based violence:

Say a legal aid organization provides assistance for a survivor of domestic or gender-based violence, helping her get a divorce or “separation due to harm” from an abusive spouse. Say the NGO goes further to help the woman obtain custody over her children and ensure she is receiving alimony payments as required by the law. Often, the organization stops there and pats itself on the back for a job well done. But no, this is not enough! If we are true advocates, we cannot stop there. Because what happens when the client gets a divorce? Does she have adequate and affordable housing? Is she remaining safe from stalking or additional violence from an ex-spouse or ex-boyfriend? Does she feel safe? Does she have employment to support herself and her children? Does she have medical or psychological needs relating to the trauma of violence and abuse she has experienced? Does she have sufficient education to get the types of jobs she wants, and needs? Is she a legal resident in the U.S. or does she need assistance with her immigration status?

There are so many “collateral” problems that result after a survivor of domestic abuse has received legal aid, that simply addressing the solely “legal” aspects of her life cannot be enough to truly pull the client out of poverty and to fully solve the original legal problem. After all, in the U.S., many women end up homeless after leaving a spouse, and many of them remain traumatized by their past abusive relationship. Indeed, many women return to abusive partners for these reasons – fear, guilt, and financial difficulties. So, it’s clear that simply getting a woman a divorce is not enough; a more holistic approach is necessary.

In the developing world, the status of divorced women is further precarious; not only are women even more likely to be financially dependent on their spouse, and thus likely to end up homeless or without a source of income after divorce, but they are more likely to be social outcasts and experience significant social stigma. In many countries, divorced or separated women are looked down upon, cast out by their family, and often further abused should they attempt to return to their family.

When the situation is so serious, how can legal organizations and service providers seriously help a woman with one aspect of the problem – the divorce or child custody alone – and ignore the rest? Yet, many seem to do just that.

2) Criminal defense

The Center for Holistic Defense, where the definition of ‘holistic defense’ has originated, clearly focuses on the criminal defense aspect of legal services. And the ‘collateral’ consequences that result from a criminal conviction should be clear.

Poverty and forays into the criminal justice system, at least in the U.S., are deeply related. Many end up in the criminal justice system due to drug use and gang activity. Beyond that, many who end up in jail once continue to cycle in and out of the system, which in its current state seems to exacerbate rather than solve the problem of crime. In order to reduce recidivism and crime rates, one has to address the needs of the criminal client in a truly holistic manner.

Focusing on re-entry is thus, extremely important. When a client is released from prison, often they face significant difficulty in finding a job, obtaining affordable housing, and not getting drawn into criminal behavior once again. Discrimination against ex-offenders plays a part in making it exceedingly difficult for those to re-enter society with dignity, and to make a decent living. The resulting poverty and even homelessness often pushes people back into criminal behavior and the prison system, leaving them few alternatives.

Clearly, we have to address the roots of the problem and focus on re-entry and rehabilitation for ex-offenders. When someone has been released from prison, case workers and legal aid providers should work together & ask the following questions: Does this individual have affordable housing? Does he have a job to pay the bills? Does he have the education needed to achieve his goals? Does he have meaningful goals to work towards? Does this individual have a support system to turn to? Is he an undocumented immigrant, or does he need immigration assistance? Is this person receiving any government benefits he or she is entitled to? Is this person receiving necessary health care?

All these factors play into rehabilitation and re-entry into society. But often, the holistic approach is not taken; an individual is represented, serves his or her sentence, and is simply released without sufficient focus on ensuring that he or she is truly rehabilitated, and living a stable life.

Check out Robin Steinberg’s video, speaking about this need:

 

3) Asylum claims

My third example runs along similar lines, so I’ll keep it short. Many legal aid/service organizations provide representation to individuals seeking asylum in the U.S. Often, these individuals face political or religious persecution, or violent repercussions in their home countries and need asylum to stay in the U.S. legally, seeking a better life for themselves and often their families. Asylum is often a matter of life and death.

However, legal aid organizations routinely seem to represent someone in an asylum claim, and if it is successful, have their role end there. This simply doesn’t cut it, in my book. The same questions come up again: Has the client found a job? Has he/she managed to find an affordable place to stay? Does the client have psychological needs or unaddressed trauma resulting from the violent situations he/she is fleeing from? Does the client need medical or psychological assistance? Does the client have health care? Has the client managed to stay out of poverty, even after gaining the legal right to stay in the U.S.? Does the client know English, how to use the computer, and other basic life skills?

There are a wide range of issues which new immigrants to the U.S. face, and those arriving here without legal status are often in an even more precarious position. Have you read the moving story – “Strength in What Remains” – of Deo, a medical student in Burundi, who fled the genocide only to come to the U.S. and end up homeless in Central Park? How can we accept this and let this happen? Legal aid providers should go beyond just providing asylum representation to more holistically considering the needs of the immigrant in adjusting to a new life in a new country.

So…what’s next?

Organizations, both legal and social services, need to stop saying: “this is not my responsibility, my only responsibility is to provide [insert X service here] .” This happens too often, and I feel I have a responsibility to speak out against the inefficiency and yes, injustice of such a sub-par approach. As advocates and activists, we should be working towards social justice – not just a narrow type of justice that fits the aims of our organizations.

We don’t need the piecemeal legal and social service model that currently exists in much of the U.S. and the world. We need something better. I see too few organizations that are willing to solve problems through a truly holistic mindset.

We need seamlessness & comprehensiveness in legal and social services, as the Center for Holistic Defense aptly describes:

There is no complex intake or eligibility process to be repeated when guiding a client to other services or advocates, thereby relieving the client of the burden of having to retell her story while enduring yet another exhausting intake process. If there is administrative complexity, it is borne by the holistic defender, not by the client in need of help.

Holistic advocacy requires legal and social service organizations to re-assess their methodology and slowly begin adding more interdisciplinary teams to their staff. Legal organizations should have people on staff to address myriad client needs – social workers, immigration lawyers, housing specialists, domestic violence attorneys.

We need to begin keeping tabs on clients for the long run — don’t just solve their legal problem and say see ya later- that’s one more success story to tell donors! Keep records. Follow up. Ensure they are on track to achieve progress and goals, to pull themselves out of poverty or the criminal justice system in a long-term sustainable manner. And if not, do something to change that and connect them with the right services and opportunities they need.

We need to begin understanding the needs of a community as a whole. Where does your client come from? What factors in his/her community is leading to their legal problems? And how can we address the roots of these problems at the community-level?

This is a global problem, a worldwide paradigm shift to be made. We need more holistic advocacy, and I intend to dedicate a significant part of my life towards addressing this gap.

Let’s make this a movement.

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