Wednesday, December 15, 2010

Access to Justice: We're Failing!

By William Fisher

Indigent defendants on death row, prisoners suffering abuses, immigrants in unfair deportation proceedings, torture victims, domestic violence survivors and victims of racial discrimination -- all these groups of people are consistently being denied access to justice while those responsible for the abuses are protected, according to a new report by the American Civil Liberties Union.

Access to the courts and effective remedies for victims of civil and human rights violations have been severely curbed over the last decade, the report charges.
Jamil Dakwar, Director of ACLU Human Rights Program, told IPS, “Access to justice is a fundamental human right and bedrock tenet of American democratic system - it was even codified by the Universal Declaration of Human Rights, which the U.S. championed 62 years ago.”

He added, “Unfortunately, access to the courts and effective remedy been severely curtailed over the last decade, especially for those who need it most. It is time for our government and judiciary to recommit to respecting and promoting this essential right.”

According to the report, "Slamming the Courthouse Doors," the "actions of the executive, federal legislative, and judicial branches of the United States government have seriously restricted access to justice for victims of civil liberties and human rights violations, and have limited the availability of effective (or, in some cases, any) remedies for these violations.”

The report details how victims of human rights abuses are denied access to justice. For example, individuals convicted of capital crimes who seek to present newly found evidence of their innocence or claims of serious constitutional violations being denied recourse in the courts because of federal legislation and recent court decisions, the report says.

It charges that victims of rape, assault, religious rights violations and other serious abuses in prison are having their claims thrown out of court because of a restrictive federal law.

Immigrants who may have legitimate claims to remain in the U.S. are unknowingly waiving their opportunity to pursue these claims and are being swiftly deported because of unfair procedures, the report charges.

It says that torture victims, including survivors of the Central Intelligence Agency’s (CIA) "extraordinary rendition" program, “are being denied their day in court because the government has misused the ‘state secrets’ privilege to shield their torturers from liability.”

It also notes that victims of domestic violence are being denied the opportunity to seek civil remedy under the Violence Against Women Act because of recent court decisions.

The report also includes detailed recommendations and measures for the U.S. government to take “in order to live up to the promise of equal justice for all and comply with international human rights obligations and commitments to guarantee access to justice and effective remedies.”

For example, federal legislation, most prominently the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), and Supreme Court decisions, has greatly limited access to federal review of state court death penalty convictions, the report says.

It charges that indigent capital defendants are often defended by appointed attorneys who are overworked, underpaid, lacking critical resources, incompetent, or inexperienced in trying death penalty cases.

The report says prisoners seeking a remedy for injuries inflicted by prison staff and others, or seeking the protection of the courts against dangerous or unhealthy conditions of confinement, also have been denied any remedy and have had their cases thrown out of court.

Similarly, victims of torture and “extraordinary rendition” have been denied their day in court. The Administration of President Barrack Obama has sought to extinguish lawsuits brought by torture survivors through use of “judicially-created doctrines such as the so-called ‘state secrets’ privilege and qualified immunity to dismiss civil suits alleging torture, cruel, inhuman, or degrading treatment, forced disappearance, and arbitrary detention, without consideration on the merits,” the report says.

It charges that by invoking the “state secrets” privilege, the Obama Administration can not only restrict discovery but can quash an entire lawsuit -- without demonstrating the validity of their claim to a judge.

Immigrants also are systematically denied access to justice, as they face monumental obstacles to obtaining review of removal orders. The U.S. government has claimed that there is no right to judicial review of diplomatic assurances when it has sought to transfer individuals to countries known to employ torture. Federal immigration officials also have used a procedure known as stipulated removal to deport non -- U.S. citizens without a hearing before an immigration judge.

“There is a lack of meaningful safeguards to ensure people with mental disabilities facing possible deportation from the United States are afforded fair hearings. As a result, legal permanent residents and asylum seekers with a lawful basis for remaining in the United States may have been unfairly deported from the country because their mental disabilities made it impossible for them to effectively present their claims in court,” the report says.

Recent U.S. Supreme Court cases have also sharply limited the ability of individuals to bring legal action for rights violations. Rights available to women victims of domestic violence have been curtailed, with the Court striking down a civil remedy under the Violence Against Women Act and finding no constitutional violation for police failure to enforce a mandatory judicial protective order.

The ACLU’s recommendations include the following:

Habeas review in death penalty cases: Congress should amend the habeas-related provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) so that federal courts are more accessible to prisoners asserting claims of constitutional violations.

Indigent defense for capital cases: Create and adequately fund state defender organizations that are independent of the judiciary and that have sufficient resources to provide quality representation to indigent capital defendants at the trial, appeal and post-conviction levels. Require states to ensure that capital defense lawyers have adequate time, compensation and resources for their work.

Prisoners’ right to remedy: Congress should act immediately to ensure the Prison Abuse Remedies Act of 2009, (H.R. 4335, PARA). PARA reinstates the ability of prisoners to challenge conditions of confinement that violate their rights by repealing the “physical injury” requirement of the Prison Litigation Reform Act.

State secrets: Congress should pass legislation that creates procedures to prevent the abuse of the state secrets privilege and protect the rights of those seeking redress through our court

Diplomatic assurances: The Obama Administration should prohibit the reliance on “diplomatic assurances” to deport or otherwise transfer persons from the United States.

Racial profiling: Congress should enact the End Racial Profiling Act, which would ban racial profiling and provide for government monitoring and documentation of racial profiling.

Frances Boyle, a legal expert familiar with the report, told IPS, “Because of the deliberate US Federal Court-Packing Scheme undertaken by the Reagan, Bush Sr. and Bush Jr. administrations, today about 60% of U.S. Federal Judges at all levels -- up to and including the US Supreme Court -- have been members of the Federalist Society, and/or were vetted by the Federalist Society.”

Boyle, a law professor at the University of Illinois, described this organization as “right wing, racist, bigoted, reactionary, elitist, sexist, warmongering and totalitarian.”

For example, he said, almost all of the lawyers involved in the Bush Jr. administration’s torture scandal were and still are members of the Federalist Society. So it is no surprise that the doors of US Federal Courts have been shut closed to the poor, the oppressed and the downtrodden of American Society by Federalist Society Judges and Justices.