Repairing Our Broken Justice System
For these failures, it must be bluntly stated, too many of our fellow Americans pay with their liberty. When access to a constitutional right depends on the size of your wallet, which is far too often correlated with the color of your skin, your gender or your ethnicity, that is a moral as well as a constitutional outrage. The Constitution Project report, from a bipartisan commission chaired by Walter Mondale and William Sessions, provides a blueprint for action by states and the federal government. Implementing these steps must be a central element of infrastructure repair for the justice system.
Repairing the broken infrastructure of justice also requires fixing the civil side of the system, which is in at least as bad shape as the criminal side of the system, in part because we lack a "civil Gideon" as a point of leverage. In an article in a recent Harvard Law and Policy Review based on an extensive review of the data, Kevin Clermont and Stewart Schwab wrote that the federal courts have become so consistently anti-plaintiff in employment discrimination cases that they are in danger of abandoning their role as a forum in which the powerless can seek redress from the powerful. Add to this the hobbling of federal legal services programs with restrictions on whom they can serve that mirror the jurisdictional limits on the federal courts; the virtual starvation of these programs through funding cuts [see Peter Edelman, "...And a Law for Poor People," August 3/10]; and the neutering of almost all federal administrative agencies charged with protecting rights, from the Civil Rights Commission to the Equal Employment Opportunity Commission. There is a huge reconstructive agenda before us.
We understand that the physical infrastructure investments we need to make as a country must not simply replicate outmoded and wasteful technologies and approaches. Similarly, we must be careful to approach the renewal of our justice infrastructure guided by new ideas. We need to pay attention to the vibrant movement, particularly at the grassroots level, to incorporate human rights standards and approaches into organizing and legal reform. We are not going back to the mid-1960s, the height of the Warren Court era, when decision after decision pushed forward the frontiers of civil rights and liberties, with judges often leading the way. Nor should we. Our rights will not be secure if we only or primarily rely on the courts. However, the new domestic human rights movement points the way to a different future. Here, too, there is a blueprint: Human Rights at Home, a collaborative effort of more than forty organizations moving forward through the Campaign for a New Domestic Human Rights Agenda with a multipronged education and advocacy strategy.
The Obama administration has been responsive to this movement and should step up the pace of implementing its recommendations, including a reconstituted and revitalized Interagency Working Group on Human Rights, a restructured and strengthened Civil Rights Commission with human rights added to its name and mandate, strengthened US compliance with the Convention on the Elimination of All Forms of Racial Discrimination and federal support for coordination of state and local efforts for human rights promotion and compliance.
There is so much more to do in revitalizing our infrastructure of justice, including immigration reform, which would help bring irregular migrants out of the shadows and into full democratic participation, and would end the bizarre form of American apartheid that denies more than 10 million workers from other countries rights in the nation that depends on their vital labor; reversal of the civil liberties abuses perpetrated in the name of national security since 2001, which have made us, in the ACLU's memorable and pithy phrase, less free and less safe; and reversal of the incarceration policies that, according to a March study by the Pew Center on the States, have put one in 100 Americans behind bars at a cost that some say has skyrocketed more than 300 percent in the past two decades.
We now have a president who has a strong sense of the big picture and a stunning ability to communicate it. Barack Obama takes his teaching role seriously and assumes the intelligence of the American people, including our ability to appreciate complexity.
We need the president and many others to knit traditional justice concerns more closely together with a broader progressive agenda. We need working families to see what they have at stake in who sits on the Supreme Court and how they rule, and we need to reject the cynical use of wedge issues once and for all. We need to connect investments in education and health and jobs to the justice system; to make clear the consequences of underinvestment in young people, particularly in communities of color; and to show that every dollar spent on prison bars is one not spent on schoolbooks. We need to connect the parts of the justice system so that the manipulation of fear that has for too long driven our criminal justice policies, and therefore our politics, and the manipulation of fear since the terrorist attacks of 2001 are understood as cut from the same cloth.
Most important, we need a long-term strategic plan for restoring the infrastructure of justice, with the necessary political will and the path to get there. President Obama must find time for this urgent task, some elements of which he has already taken on. But whether that happens depends to a great extent on those of us who support a more generous vision of justice than the cramped view peddled by the right for the past four decades.
At the center of our vision is achieving the state of justice in which race and gender and ethnicity are not the determinants of who ends up in prison or on an ICE airplane to the Mexican border, or winds up dead at the hands of an abusive husband or an out-of-control cop or soldier. We will have achieved a small but important part of that goal when the Supreme Court looks like the America of those whose rights it is the ultimate guardian. Yes, the Court should have some connection to and empathy with those who come before it challenging a powerful interest, whether it's the state or a rich corporation.