January 30, 2019
By Jess Temple
We all know access to justice is a civil justice issue, but did you know it is also a human rights issue?
Independent experts at the United Nations working on issues of racial discrimination, immigration, and violence against women have emphasized the need for access to justice in civil legal aid. In fact, experts agree that access, including the right to counsel in civil legal matters, is essential to meet basic human needs.
Legal aid can be seen as a gateway to the enjoyment of other human rights important to creating a fair justice system. These rights include the right to liberty and security of the person, the right to equality before the law, the right to non-discrimination, the right to a fair trial, and the right to an effective remedy.
Though there is a great potential for the civil legal aid system to protect human rights, there are barriers to accessing justice through this system. Barriers to access to justice disproportionately harm racial minorities, women, and immigrants – thereby undermining the promise of “justice for all,” in the United States.
In the civil legal system, one way to demonstrate barriers to access is to explore outcomes in immigration proceedings. Unlike the criminal justice system, there is no right to counsel in the civil justice system. This is despite the fact that immigration proceedings often risk the same deprivations of liberty you might anticipate in a criminal proceeding, like the loss of life.
The risks associated with being a migrant in the United States have gained visibility as a result of the United States’ recent immigration policies. The International Justice Resource Center (IJRC) published a news post analyzing the international human rights standards implicated by these policies, which include automatic criminal prosecution of adult migrants, family separation, indefinite detention, and restrictions to claims for asylum, among others. IJRC identified ten human rights principles that are implicated by these policies, including, the right to life, noting excessive force used at the border; the right to seek asylum; the prohibition of torture; and rights associated with due process in immigration proceedings.
So what do barriers in immigration proceedings actually look like? Folks at the American Immigration Council analyzed over 1.2 million deportation cases decided between 2007 and 2012 to shed some light on barriers to access to justice in United States immigration courts.
In this 2016 report, we learned that nationwide:
- A very low percentage of immigrants are able to secure legal representation for their cases (37% if they were not detained, and only 14% if they were detained)
- Immigrants with hearings in small cities were four times less likely to obtain counsel compared to those with hearings in large cities
- Represented immigrants were more likely to be released from detention, to seek relief from deportation, and to experience successful immigration outcomes.
These findings provide a daunting, data-driven illustration of unequal access to justice, with devastating consequences for those experiencing barriers.
Thinking about legal aid services more broadly, the Legal Services Corporation recently estimated that about 86% of civil legal problems reported by low-income Americans received inadequate, or no legal help at all. Access to justice issues are often amplified for vulnerable groups, and it takes strategic plans, programs, and delivery to strengthen access to justice.
So…should we be doing better?
I believe the answer is an emphatic yes. In addition to constitutional and legislative guarantees, the United States federal and state governments are internationally obligated to comply with human rights standards, including, those set forth in the International Covenant on Civil and Political Rights. The United States must respect and protect the right to liberty and security of the person, the right to equality before the law, the right to non-discrimination, the right to a fair trial, and the right to an effective remedy. The United Nations Human Rights Committee has further elaborated that the right to equality before the law includes meaningful access to justice procedurally, and practically, which may mean ensuring the availability of legal assistance. The decision by the United States to withdraw from the Human Rights Committee, while undermining the United States’ position as an advocate of human rights, does not negate the obligation to provide meaningful access to justice for all.
So what do we do about barriers to access to justice in the context of our work?
Global perspectives on effective ways to strengthen access to the civil legal aid system include evaluating access, for example, by gathering information about who accesses the civil legal aid system, how they access the system, how easily they access it, and what the outcomes are for them; identifying barriers to access; raising awareness of legal services that can address problems (whether those problems feel “legal” or not); funding legal aid; and ensuring the implementation of equal access to justice.
Here at OneJustice, I eagerly apply this human rights lens to the work that I do with our mobile legal clinics. I think critically about how we can collect data about barriers folks face accessing OneJustice’s legal aid services in Northern California. Through OneJustice’s varied programs and layered service provision, we are working to identify where service delivery gaps exist. I work to raise awareness of access to justice issues, and to protect the promise of justice for all.
Jess Temple, Staff Attorney – Jess works on the Northern California Justice Bus project, an innovative mobile legal clinic designed to reach California’s most underserved communities.