Civil Justice as a Human Right

Kia Franklin

Civil Justice as a Human Right

Involuntary commitment, medical treatment, child abuse and neglect, child custody, parental termination, domestic violence, housing discrimination… Any person who finds herself in court or being called into court over one of these legal issues surely has enough on her plate. But if she’s also poor, she’s probably been dealt the extra helping of hardship that is the difficult task of navigating through the legal system alone.

So drafters of a CERD (Committee on the Elimination of Racial Discrimination) shadow report on “The Right to Counsel in Civil Cases” argue that the lack of access to counsel for low income people of color and women is an international human rights issue, under articles 5 and 6 of the International Convention on the Elimination of All Formes of Racial Discrimination (ICERD), requiring the immediate attention of the U.S. government. They argue that “Since racial minorities are disproportionately poor, they are disproportionately harmed by the lack of civil counsel…” which therefore puts this matter “squarely within the scope of CERD.”

Below I’ve highlighted a few features from the report, which is still in draft form. If interested in signing on, drafter of the report Professor Martha Davis (m(DOT)davis(AT)neu(DOT)edu) is looking for organizational sign-ons by MONDAY. The more signatures it gets, the more weight the CERD Committee will give to the report when it’s submitted. If interested in obtaining a copy of this document which will go to the CERD Committee, you can e-mail me (kfranklin(AT)drummajorinstitute(DOT)org).

And now, for the highlights:

Currently, legal aid services are great, but just aren’t well-funded enough to meet the need. Legal Aid, according to the report, is currently “very limited, unevenly distributed, and falls short of the equal access to justice envisioned by articles 5 and 6 of CERD and the Committee’s General Recommendations.” The Committee’s recommentations include providing free assistance of counsel to victims of race hate crimes and establishing a federal Civil Gideon right to counsel in all civil matters of critical importance (matters related to housing, sustenance, child custody, health, and safety).

Why? What’s the big deal about going to court pro se? (Tsk, tsk, you haven’t been paying attention). Drafters noted a 1997 study showing that women of color who came to family court alone (and made up 85% of all the people showing up pro se) were “consistently treated with less respect and given insufficient information to carry out the roles that were assigned to them in representing themselves.” A more recent report from 2003 reflects similar flaws in the process for low income pro se litigants, a disproportionate number of whom were women of color.

Why do people go to court pro-se, if the system is skewed against pro se litigants? The Report answers:

Courts have often characterized those without counsel as “choosing” to “self-represent,” but given the benefits of representation, most litigants would prefer to have legal counsel assisting them with their civil claims.

So why is this an international human rights issue? Under the International Convention on the Elimination of All Forms of Racial Discrimination, nations must take steps to eliminate any racial barriers to justice. According to the shadow report, articles 5 and 6 of the ICERD:

“address fair procedure and adjudication through the lens of equality and non-discrimination. Both artciles include civil matters and explicitly require that [nation] States take positive steps to ensure effective access to the apparatus of the State’s justice system.”

And, finally, the fix: “the lack of civil counsel is a key factor perpetuating racial bias in the administration of civi ljustice in the U.S. State laws fail to provide comprehensive rights to counsel in cases with significant consequences for minority litigants.”

Those interested can contact me for information on obtaining the draft of the report. Professor Martha Davis is seeking organizations’ support in the form of a signature onto the report, and she can be contacted at: (m(DOT)davis(AT)neu(DOT)edu).

Posted at 3:48 PM, Nov 30, 2007 in Civil Justice | Permalink | Comments (5) | TrackBack (0)

Comments

Kia: Poverty is a lifestyle choice. Someone with an IQ of 60 can work with some support, be a taxpayer, and have 95% of the lifestyle of you or me, including vacation travel.

One chooses the road of the full time Roman Orgy and pipe, entirely free of ever opening a school book, or job searching among desperate employers. Explain why the taxpayer and consumer should subsidize that choice at the point of the gun of government.

Please, do not invoke race. The US Census of very dark skinned African and Caribbean immigrants rebuts that lawyer lie permanently, by their well rewarded striving.

Do you not feel the slightest embarrassment at the above brazen lawyer masking ideology for lawyer rent seeking? You are shameless and amazing.

Are you asking a question or just using this website as a platform for your venting?

Your references to "very dark skinned" immigrants don't rebut the fact that race & poverty in this country are intertwined, creating a confusing mess when u look at civil justice through that lens.

That said, the whole "people choose poverty" line of thinking has been long disproved. I think my Freshman year of college was the last time I ever even considered that argument's validity. There are tons of studies about the working poor, the *hardworking poor* who despite their hardwork stay poor. So no, it's not simply about choosing between the schoolbook and the pipe. Your oversimplification of the problem, again, is either just your way of using this website to vent rather than engage in enlightened dialogue, or it's a sad example of speaking/typing before you think.

Get informed about the issue and then we can engage in productive dialogue.

Kia: Let's conservatively assume the value of welfare benefits is around $20K a year. It is closer to $30K. This covers top of the line medical care, for which Saudi princes fly long distances. The value of welfare far exceeds the after tax earnings of many working poor people.

A top law school grad in India makes $12K. That salary buys about the same as it would here, but supports a big striving family, by sacrifice.

Sweetie, there is no poverty in the US. There are lifestyle choices. The faux poor place priority on selfish pleasures, over serving, helping, or pleasing others, the sole way out of poverty. In fact, rents in slums are not low. Areas with lower rents and cheaper housing will expel the knuckleheads. The neighbors repeatedly call the police after the knuckleheads cut up. So they have to pay a higher rent in burnt out areas. There, no one cares about nor reports crime, not even the police. There is so much herded crime, there is no point to acting. By the time a murder has been solved, one learns, all that work was for nothing. The murderer was murdered three months before being identified.

You may have trouble deciding, marina condo, golf course condo. The faux poor know exactly what they want.

You worked long and hard to earn your satisfaction and confidence in your knowledge and skills. The same feeling is duplicated by a few dollars worth of dope. You went to an awful lot of effort, time, and expense. A cheap, reliable short cut is available. These street smart slicksters may be right. You and I may be wrong in our choices. We may be kidding ourselves, and they may be the smart ones. I sometimes have those doubts and some envy when talking to some of them.

Adding free lawyering to the Roman Orgy lifestyle package?

Outrageous.

I don't mind legal aid being available for criminal defense or to assist with custody and child support issues but to expand it further into our so-called Civil Justice syatem, never.

As any civil judge will tell you, civil litigation is never about justice, only about adjudication of disputes over money. There has never been a civil trial that produced justice except as an accidental by-product.

Why create more useless litigation that is not about justice anyway - let's expand the use of ADRs instead

SC, I'm only my Grandmother's "Sweetie." Now that that's settled, let's get to the substance of your comment:

There are tons of people out there making bad decisions, rich and poor. But your critique of the American lifestyle betrays a bias against poor people in the U.S. That can be fixed with information and exposure rather than reliance on the nightly news and movie portrayals of "life on the street." If you can't accept that 1) the American poor exist, and 2) many, many of the Ameican poor are good, honest, hardworking people, then you should just stop reading here.

If you can accept that reality, then here's another reality, which also responds to Paul's comment: people DO get into jams sometimes, DO need lawyers, and SHOULD have access to lawyers if we're talking about critical, basic human needs at stake.

Example: Someone complains to her landlord about moldy walls. Her kid has asthma and is getting sicker as a result of the mold. Instead of fix the mold problem, the landlord let's it get worse. She lawfully withholds rent, or spends her own money to get the problem fixed and deducts that value from her monthly rent. Landlord takes her to court to evict her. She can't afford a lawyer. She gets kicked out simply because she wanted to live in a habitable environment, something the landlord is legally obligated to provide.

A divorced woman with a disabled child she had to stay home and care for, had her child's disability benefits terminated because of an error the social security agency made about her marital status. She had to fight tooth and nail to reinstate the kid's benefits, spending money and time she didn't have. She was a lucky one who got a pro bono lawyer. There are only so many to go around. We need to implement systems for providing people with the legal assistance they need to live their lives.

There are millions of other examples. These people DON'T need arbitration. Many of these people AREN'T trying to get money--they're trying to retain housing, public benefits, custody of their kid, health care benefits... BASIC rights that shouldn't be arbitrated away. Justice is PRECISELY what people are looking for.