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As someone who is a big proponent of a “holistic legal services model,” I was incredibly excited to hear about a program launched in 2013 with support from the Kresge Foundation. The program, the Holistic Legal Assistance Network (HLAN) is hosted within Rhode Island Legal Services, and utilizes a holistic approach to identify and address the underlying social problems preventing an individual from moving forward out of poverty.

This program implements exactly the model I have been advocating on this blog for a while. The program integrates both legal and non-legal support and strategies and provides a continuity of care across the spectrum of a client’s social and legal problems. This holistic approach allows the program to attack the root causes of poverty as opposed to simply addressing the symptoms at a surface level, and by linking to other social service organizations and partners, aims to vastly increase the client’s access to necessary services. In addition, the program continues to follow-up with clients even after specific legal and social problems are addressed.  An initial evaluation seems to reveal positive results, but I think more robust measurement of impact in this and similar models will be helpful to test assumptions and also provide a persuasive force to other legal service providers across the country.  This powerpoint is incredibly helpful and captures many of the underlying goals of a holistic program; the barriers; and how to address them.

Indeed, the presentation accurately points out two key barriers: funding for such programs, and internal culture. Funding is often a challenge, since providing holistic care requires deeper support to each client, and can be enhanced by the hiring of an in-house social worker. This would be a great place for foundations to intervene and work with legal services organizations to supplement their work. However, even without additional funding, legal services organizations can reframe their referral process to develop close connections with social service organizations in the area, enabling greater continuity of care for clients. In addition, the culture of legal organizations is often such that there is a reluctance of lawyers to become involved in clients’ non-legal issues – often because of time – but also at times because lawyers do not feel well-equipped, perhaps are uninterested in addressing such issues, or feel it is not their role. Additional training and support can enable lawyers to think more “holistically” when working with clients, even without the addition of substantial additional resources or financial support.

Regardless, I am incredibly heartened to see a legal services organization taking this on and combining the language of holistic services with community lawyering – and at the same time, to see a foundation beginning to invest in this particular model. With more measurement to prove that this does, indeed, work, more funding may also come into play as donors want to support models that they believe will succeed.

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In the worldwide movement to end domestic and gender-based violence, most efforts to combat violence against women and girls fall into two spheres: so-called prevention and response — similar to interventions in other realms, such as the healthcare field.

‘Prevention’ efforts approach gender violence with the idea that breaking down systems of patriarchy and oppression is the ultimate goal, and the root cause of gender violence. If we can disrupt the patriarchal order, we can begin to more effectively reduce and end gender violence. Many prevention efforts seek to change social and cultural norms as an attempt to reduce gender inequity. By changing patriarchal mindsets and attitudes – by shifting culture, which is never static – it may be possible to actually shift society in a more equitable direction. Many campaigns in the prevention realm thus focus on efforts such as: educating communities about domestic and gender-based violence; educating children on sexuality and healthy relationships; empowering women to be stakeholders and political leaders with power; changing unjust laws and policies and implementing better ones; and changing the portrayal of women in ads, mass media, music, and entertainment. Movement building and coalition building can also aid in challenging and changing unjust laws and structures that allow violence to perpetuate.

On the other hand, response is the area I have been largely focused on. As a (hopefully!) soon-to-be attorney, my mind is automatically drawn to solutions targeting the treatment of survivors after they have been abused. After being subject to abuse, are survivors they receiving the legal and social support and services they need? The response considers a holistic response to gender violence: legal aid and access to justice, safe housing, economic support and employment opportunity, childcare, protection by the police and an order of protection, social support and networks, and land/property rights. And on the criminal side, is the perpetrator apprehended, and ideally – rehabilitated?

In many ways, the ‘response’ is a limited solution, though. Response means the system has already failed the survivor at some level — she has been subject to abuse already. It also does not necessarily prevent the violence from being perpetrated again by the same abuser on the same victim/survivor, or a different one. However, research does indicate that access to a lawyer can increase the likelihood of obtaining an order of protection – and that about 86% of women who received a protection order or restraining order state that the abuse greatly reduced or stopped. At the least, then, the ‘response’ has a positive impact by reducing violence for the survivors who receive help; and at the most, taking action may have a deterrence effect on abusers who are prosecuted, experience the consequences of their actions, or obtain therapy/counseling to understand their behavior. In this way, ‘response’ can also be prevention in itself if it is implemented effectively.

The Response: Accessing Justice

Within the spectrum of responsive service delivery for survivors, access to justice is just one of the prongs. But interestingly, in one study comparing numerous social and legal service programs, only legal services was found to significantly reduce a woman’s likelihood of abuse – as noted above, in large part by facilitating the receipt of orders of protection – but also by providing the survivor with assistance on economic matters, thus increasing her financial stability and independence. Access to justice, then, has a measurable impact. It may not end domestic violence, but plays a vital role in ending domestic violence for survivors and may pay dividends to the extent that it can also increase defendant accountability.

The “justice” component really has two prongs:  civil and criminal.  Access to civil legal services can aid the survivor in moving forward and healing, and prevent further violence against her.  The criminal justice response, however, focuses largely on preventing the perpetrator from committing abuse again — and may have a broader deterrent effect, at the optimistic end.

Will access to justice end domestic violence in the world? Probably not; these efforts will need to be supplemented by the prevention components detailed above. But, can we end domestic violence without access to justice? It seems less likely.

Zooming out to the situation worldwide, there seem to be a few key barriers to effective access to justice, both civil and criminal.

1.  Lack of access to lawyers for the poor:

First, the poor – and survivors of gender-based violence – all too often lack access to a lawyer in civil cases. In the U.S., there is no ‘civil Gideon’ — no right for the poor to access a lawyer in civil cases.    This is the case in much of the world.  This makes access to a lawyer incredibly difficult for the poor, who face numerous — countless — barriers. These include the cost of hiring a lawyer, physical distance to a lawyer’s office or a court, the language barrier – particularly for those who are illiterate, as well as a ‘cultural barrier.’  I have seen firsthand how a survivor of domestic abuse in rural Bangladesh, for example, cannot easily go to an attorney. She faces numerous cultural barriers in that going to court may be seen as inappropriate and as taking a private, family matter ‘outside’ the allowed zone. This, then, becomes insolent behavior to be further punished. There is an informal, mandated culture of silent suffering for survivors of gender violence. In addition to this, lawyers are often seen as highly educated and in a different social class, and thus less relatable for low-income individuals. And finally, many communities utilize customary justice or alternative forms of dispute resolution, and may be unfamiliar with the formal legal institutions in place.

Solutions need to tackle increasing the number of trained lawyers and lawyers providing free services to the poor, and must make it more desirable for lawyers to provide justice for the poor. Currently, this is not a prestigious option in many countries. Incentives must be provided to attract more lawyers to this space – and salaries and job opportunities are key!   The most sustainable solution might be government-funded or subsidized legal aid. Other options are promoting paralegal corps to provide justice services at a lower cost, and in a form far more accessible to communities.

2.  Lack of appropriate laws in place:

But even where the poor have access to a lawyer, the right laws may simply not be in place. In the U.S. it is possible to generally obtain an order of protection, or to obtain sole custody of the children as a woman, or to obtain a divorce and equitable distribution of marital property including title to the marital home. Survivors of sexual assault can, generally, benefit from rape shield laws preventing prosecutors from inquiring into the survivor’s past sexual behavior. And those in a same-sex relationship can generally avail themselves of laws relating to GBV.  There are sexual harassment laws in place protecting one in the workplace.  In certain countries and regions, these laws may not exist. It is not always possible to obtain title to the marital home and avoid homelessness, or to shield inquiry into past sexual history. Marital rape remains legal in much of the world.  In such a situation, the just laws must be in place for access to justice to become a reality for survivors.  Without the laws, ‘justice’ is meaningless and in fact, impossible.

3. Systemic barriers in the justice system:

Formal justice systems are often not accessible for the poor due to systemic barriers — even if a survivor obtains a lawyer.  A single case can take years, even decades in an inefficient justice system with backlogs of thousands of cases.   Case backlogs may sound innocuous and technical, but they can be incredibly dangerous in allowing injustice to perpetuate.   Reports have documented that individuals are kept in pretrial detention for 10 or 15+ years, often because of inefficiencies and backlogs in the justice sector.  In addition, judges may not be well trained on the law, or may harbor patriarchal biases themselves. Finally, corruption in the system often prevents the poor from moving forward with their case, and contributes to backlogs.

4. Systemic barriers in police accountability:

Finally, prosecution or enforcing a restraining order can be effective only with the assistance of the police. In many places, police accountability and effectiveness is limited. The reasons are numerous: the police as an institution are often underfunded and lack the resources to track down offenders and implement the law, particularly in poor countries; the police may have poor training on dealing with gender violence cases; the police themselves may harbor patriarchal biases against intervening in gender violence cases; and the police may also be corrupt – sometimes a consequence of poor salary and support from the institution.  Without the help of the police, it can be near impossible to enforce the law and keep survivors safe. What is the solution? This one is a bit harder; it might require a combination of funding and training — and governments simply need to make it a priority to well-equip police to fight crime. More female police officers may also be a small part of the solution.

Ultimately, if these 4 barriers are addressed, access to justice can become much more a reality, even for poor survivors of gender-based violence.  While improving access to justice will not end violence, if it is implemented effectively, it can reduce it for survivors and may have a deterrence effect that is felt throughout society.

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Hello friends! Yet another (shameless?) plug: I recently organized an Online Symposium for the Harvard Human Rights Journal on access to justice, particularly via customary and informal systems, and we received a range of fascinating submissions from scholars and practitioners around the world. Read more below and check out these illuminating articles:

From the Informal to the Formal: Examining Access to Justice and Customary Justice Mechanisms 

The HHRJ Online Symposium this year centers on issues of access to justice to the poor around the world, with a particular focus on examining the challenges that exist within informal, customary and traditional mechanisms of dispute resolution.

In many countries, the formal state-governed justice system exists alongside various informal methods of justice delivery and dispute resolution, often termed “informal,” “non-state,” “traditional,” or “customary” mechanisms. Due to the barriers faced by litigants attempting to access the formal justice system, many have began to shift a focus to informal methods of dispute resolution in a range of cases – such as family law, land and property disputes, and issues of economic and social rights. There has been an increased emphasis on mediations and on engaging with informal justice mechanisms that already exist at the grassroots level, such as the  shalish in Bangladesh, the bashingantahe in Burundi, or the shura Jirga in Afghanistan. Although informal systems of dispute resolution are often more accessible and familiar to communities, they come with their own challenges and considerations, particularly in relation to gender and human rights norms.

Alongside such concerns, however, there have been innovations and experiments that are promising in their initial stages, improving access to justice in ways that comport with human rights norms, both via formal state-run systems as well as NGO-led and non-state mechanisms.  We have published five pieces by leading scholars, academics and practitioners in this field that build upon this theme and explore in greater depth the complexities inherent in working to promote grassroots access to justice to communities, and especially the added questions raised by customary justice systems:

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Last Friday, I organized a symposium at Harvard Law School hosted by the Harvard Law & International Development Society (LIDS) and titled “Post-Conflict Reconstruction: Rebuilding from Emergency to Development,” which brought together practitioners, experts, and academics across the country and world to discuss issues of economic growth and development, and supporting the rule of law in countries arising from conflict.

It was a great success, with lots of insights gained and ideas exchanged.  It was my first real time organizing an event of this scale, and I was so excited to see the vibrant outcomes and exchanges from it!  Especially close to my heart was the second panel, focusing on justice and security reform after conflict. Vivek Maru, of Namati, spoke about their work promoting the use of grassroots community outreach workers (modeled after the “community health worker” model), and how this model of “community paralegals” can be especially effective in supporting ordinary people in accessing justice in fragile countries such as Sierra Leone, post-conflict. In such situations where the justice infrastructure is damaged and often difficult to access by much of the population, supporting justice can be done through the use of paralegals who can help mediate disputes, access information about their legal rights, and address injustices both individual (e.g land rights disputes, family law matters) and collective (mining abuses, collective actions). In the absence of a strong formal justice system in post-conflict countries, the grassroots justice model offers a place to start — and to start with the people rather than at the top-down institutional level.

Here are a few pictures below! Click here for the LIDS website and to access more information on the event, photos, and videos.

IMG_0572Keynote speaker, Dr. Donald Kaberuka – President of the African Development Bank – talks about post-conflict reconstruction and promoting economic growth across Africa.

DSC_0848The first panel focused on building institutions and driving economic growth in countries after conflict. 

DSC_0854The panel included practitioners from across institutions such as The Asia Foundation, USAID, and the World Bank. It was a great look into the tricky challenge of how to rebuild institutions in fragile states.

IMG_0648The second panel focused on developing the rule of law, stability, and security in countries after conflict.

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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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Today (after a long pause between ‘Feature Fridays!’) I’d like to highlight an exciting new community-based lawyering organization in Nigeria, Justice and Empowerment Initiatives.  I’m truly excited about their approach, which truly aims to be far more community-based and involves not just litigation but community paralegalism, advocacy, and mobilization/movement-building.

JEI’s three prongs of work are: training community-based paralegals, engaging in movement building, and finally – strategic advocacy. JEI trains, monitors, and supports networks of individuals providing community-based paralegal services in rural and urban poor communities in Nigeria. A particularly exciting aspect of their model is their community-owned initiatives in Nigera. JEI helps to set up a membership association called the Community Legal Support Initiative (CLSI).  Before joining CLSI, communities set up  ‘community legal support committees’, which join the membership of CLSI and take an active role in overseeing and implementing activities to support paralegal services. CLSI subcommittees work closely with JEI to train, supervise, and mentor paralegals who show capacity and commitment to justice.

Second, through the paralegal network and more broadly, JEI supports movement-building and inter-community solidarity within and between poor and marginalized communities. Finally, when necessary, JEI undertakes strategic advocacy or litigation to backstop the work of paralegals and the activities of the broader community-based movement.  JEI provides direct litigation and advocacy support to individuals and communities in need. Priorities for strategic litigation and advocacy are identified by communities. JEI undertakes litigation before Nigerian courts, regional/international human rights bodies (e.g. ECOWAS Court or the African Commission on Human and Peoples’ Rights), and advocacy before the National Human Rights Commission or the World Bank Inspection Panel. JEI works to make this sustainable through the Community Legal Services Initiative, where member communities establish community-managed funds for litigation and advocacy.

Check out this video highlighting JEI’s work in the Otto Ilogbo community in Lagos, Nigeria, which has been sacked by fire and violence that has chased hundreds of innocent residents from their homes.

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A great post on OpenDemocracy recently by Chris Jochnick discussed human rights tools of litigation, and how the law can be harnessed to address some of the root causes of poverty. I especially liked the following questions he asks at the end, which I think are absolutely spot on:

  1. Can resources be mobilized at scale to support human rights work that directly confronts poverty, inequities and vested interests? The longstanding bias of human rights funders against ESR continues to limit this work.

  2. Can lawyers and litigation be incorporated into grassroots struggles without co-opting them? The legal training, the proximity to power, the allure of lawsuits, the mythologies of legal expertise all conspire against good faith efforts of lawyers to serve rather than lead campaigns.

  3. Can transnational human rights advocates find a way to work closely and collaboratively enough with those living in poverty, while retaining a strategic focus on broader structural issues? The rise of stronger human rights groups in the global south, connected to social movements and networked to international platforms (with a helpful infusion from the Ford Foundation) represents a promising, if fragile, step in this direction.

These questions often pique my interest when working in the human rights field. I often question: how can we mobilize individual struggles and direct legal services into broader change, and at the same time how can human rights advocates engaging in high-level litigation or “impact” cases while still maintaining a close connection to communities?  Especially, as he writes above, the “legal training, the proximity to power…” often make it appealing for lawyers to take leading roles in campaigns rather than a backseat. At the same time, often working to provide legal services or working with clients on an individual, one-on-one basis can be particularly difficult, not to mention can be challenging to make any systemic reform.

A great post summing up some of the debates in human rights/transnational lawyering and advocacy work, and absolutely worth checking out.

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