Monday, March 10, 2014

Access to Justice and the Bringing Human Rights Home Challenge

Writing from Geneva, Co-Editor Risa E. Kaufman, Executive Director, Columbia Law School Human Rights Institute, surveys new data that paints a devastating picture of lack of access to civil justice in the U.S.  Then she spells out the challenge:  how to translate international attention to this issue into progress at home. 

by Risa E. Kaufman

In her post last week, Cindy Soohoo discussed the challenges of coordination for the 80-plus advocates who have converged in Geneva this week for the U.N. Human Rights Committee’s review of the U.S. for its compliance with the International Covenant on Civil and Political Rights (ICCPR). Another challenge for the U.S. advocates gathered in Geneva is figuring out what to do when they return. How do we translate success in Geneva into real change at home?  It’s a challenge I am puzzling over as I work the halls of the U.N.’s Palais Wilson to talk about access to justice concerns in the U.S.

The just-released World Justice Project’s 2014 Rule of Law Index places the United States towards the bottom of the list of industrialized nations on access to justice, especially civil justice issues. The National Center for Access to Justice’s recently launched Justice Index provides a more detailed picture of the situation on the ground and across the country, at

Mindful that the civil justice gap disproportionately harms racial minorities, immigrants and women, prior to this week’s in-person review, the U.N. Human Rights Committee asked the U.S. to provide information on what steps it’s taken to improve legal representation in civil proceedings for litigants belonging to racial, ethnic, and national minorities, and for victims of domestic violence. 

This isn’t the first time that a human rights treaty body has questioned the United States’ record on access to justice. In 2008, the U.N. CERD Committee expressed concern over the disproportionate impact the civil justice gap has on vulnerable communities in the U.S. and recommended that it allocate sufficient resources to remedy the gap.

In response to the Human Rights Committee’s concerns over access to justice, the Obama administration is touting its 2010 Access to Justice Initiative, which works within the U.S. Department of Justice, across federal agencies, and with state and local justice systems to increase access to counsel and legal assistance in civil and criminal matters.  I agree, the ATJI is a positive development.  But let’s call it a promising start.  There is much more that the federal government can and should do.

In preparation for this week’s review, a broad group of U.S. civil justice advocates submitted an Access to Justice shadow report to the U.N. Human Rights Committee, suggesting recommendations for the Committee to pose to the U.S. delegation. These include conducting research to analyze the impact of counsel in civil cases, identifying and disseminating state and local “best practices” to improve meaningful access to civil legal services, and supporting state-level efforts to establish a right to counsel in certain civil cases.  In addition, the report urges the Committee to recommend that the U.S. ease restrictions and increase funding for the Legal Services Corp, and enact legislation establishing a right to counsel in federal civil cases implicating basic human needs, and a right to appointed counsel for detained immigrants facing deportation.  The report was widely endorsed. 

At the end of this month, the Committee will issue “concluding observations” from the review and recommendations to the U.S. government for ways in which it can improve compliance with the ICCPR.  Should the Committee voice concern over the civil justice gap in the U.S. and adopt some of the   recommendations in the Access to Justice shadow report, it will further develop the international record on the U.S.’s crisis in unmet civil legal needs.  Next comes the CERD review, scheduled for August 2014.  Groups are already gearing up to inform the CERD Committee of growing disparities in access to justice.  And then comes the UPR in 2015. 

This all builds momentum and brings critical attention to access to justice concerns.  The trick, of course, is translating the recommendations from Geneva into progress on the issue back home.  The charge for access to justice advocates is to turn what might read as “U.N. speak” into language that persuades state and federal legislators, judges and policy makers to stand by the U.S.’s international commitments to uphold civil and political rights, including access to justice for all.  It’s the case for each issue that advocates are raising in Geneva this week, and the challenge for us all.

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