criminal justice, human rights, international justice, public interest law, social change, women's rights

Kimberley Motley: on rule of law in Afghanistan

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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criminal justice, public interest law, social change, women's rights

State violence and domestic abuse

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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criminal justice, feature friday, human rights, international development, public interest law

Feature Friday: UN Resolution on Access to Legal Aid

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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