Access to Justice

  • August 15, 2014
    Guest Post

    by Sarah Bronstein, Senior Attorney, Catholic Legal Immigration Network, Inc.

    The issue of unaccompanied children arriving at the U.S. - Mexico border has been the focus of a great deal of attention recently and presents unique challenges to our immigration system and the advocates who seek to help these children. The latest figures issued by U.S. Customs and Border Protection (CBP) show thus far in fiscal year 2014 (from October 1, 2013 – July 31, 2014), 62,998 unaccompanied children have been apprehended along the southern border. This is double the number of unaccompanied children apprehended in fiscal year 2013.

    The majority of children who have been apprehended at the border are from the Northern Triangle of Central America: Honduras, El Salvador and Guatemala. These countries currently have, respectively, the first, fourth and fifth highest homicide rates in the world. Large areas of these countries are controlled by armed gangs, leaving children particularly vulnerable to violence. Children report gangs attempting to recruit them as early as age ten. These children are not just fleeing poverty; they are coming because they fear for their lives.    

    These children need support to begin to recover from the trauma they have endured. Yet advocates have raised significant concerns about the conditions in temporary shelters set up by the U.S. government. After children are apprehended by CBP, the agency must transfer custody of unaccompanied children to the Office of Refugee Resettlement (ORR), part of the Department of Health and Human Services, within 72 hours of their arrest. Since the Homeland Security Act of 2002, ORR has been the federal agency that is responsible for the care and custody of unaccompanied children. For several years, ORR has operated temporary shelters throughout the United States to house children while ORR caseworkers seek to reunify them with family members or family friends in the United States. 

    In response to the dramatic increase in numbers of children apprehended by CBP, ORR opened three large facilities housed on military bases: Joint Base San Antonio – Lackland in San Antonio, Texas; Fort Sill Army Base in Oklahoma; and Port Hueneme Naval Base in Ventura, California. ORR announced at the beginning of August that due to slightly decreasing numbers of apprehensions, it would phase out the use of these three facilities over the next eight weeks.  Advocates had raised significant concerns about the conditions in which children were held at these facilities and the difficulty in gaining access by attorneys and legal workers due to security procedures at these military facilities. There have been reports that ORR plans to open another large facility to house unaccompanied children in the El Paso, Texas area, but those are thus far unconfirmed. 

  • August 5, 2014
    Guest Post

    by Adrian Alvarez, the Goldberg-Robb Attorney, Public Justice

    *This post originally appeared on Public Justice’s blog

    A Florida judge’s ruling that the state’s constitutional amendment banning same-sex marriage is unconstitutional under the U.S. Constitution is the third order of its kind to come out in less than a month. But in a twist on the debate over the right to marry, the judge’s order came about not to allow a couple to marry, but to allow a woman to divorce her estranged spouse. And the issue is about far more than the right to divorce, it’s also about access to justice.

    In 2002, Heather Brassner entered a civil union with Megan Lane under Vermont’s civil union statute. Four years ago, the couple separated and Brassner is now in a committed relationship and wants to end her civil union. Although. Brassner sought a dissolution of her civil union in Vermont, because she is not a Vermont resident, Vermont courts won’t dissolve the union without Lane’s approval and Lane has gone missing.

    So Brassner sought relief in Broward County, Fla., the place she’s lived for the past 14 years. 

    In 2008, Florida voters passed a constitutional amendment that bans same-sex marriage in the state. The amendment not only bans marriage, but is written so broadly that it includes civil unions. The amendment says:

    Inasmuch as marriage is the legal union of only one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized.

    Unlike the right to marry, I know of no U.S. Supreme Court opinion recognizing a person’s right to divorce as part of an individual’s right to liberty and privacy. In fact, the Florida court that decided Brassner’s case based its decision on a federally protected right to marry, not any federally protected right to divorce.

  • June 24, 2014
    Guest Post

    by Arthur Bryant,​ Chairman, Public Justice 

    *This piece is cross-posted on the Public Justice blog.

    Harvard Law School Professor Laurence Tribe, one of America’s preeminent constitutional scholars, says the U.S Supreme Court’s majority is not denying access to justice to consumers, workers, and civil rights plaintiffs just because it is “favorable to big business” and “doubts(s) that civil rights litigation does all that much good.” Tribe says the real reason is more fundamental and disturbing: The Roberts Court is an “anti-court Court.”

    We cannot leave this be. Tribe offers one solution; I have two more.

    Tribe’s new book, Uncertain Justice: The Roberts Court and the Constitution, co-authored with Joshua Matz, reviews and analyzes the Supreme Court’s rulings in several key areas – including equality, health care, campaign finance, freedom of speech, and privacy – since Chief Justice Roberts was appointed in 2005. In 2010, Tribe served as the first “senior counselor on access to justice” in the Obama administration. Perhaps for that reason, the final chapter of the book, “Making Rights Real: Access to Justice,” is the most revealing and instructive.

    Tribe documents the Roberts Court’s “dramatic rewriting” of procedural rules to “unmistakably” favor big business, including an “assault on class actions” and rulings that make it “virtually impossible to escape arbitration agreements.” He writes:

  • June 3, 2014
    Guest Post

    by Arthur Bryant,​ Chairman, Public Justice 

    *This piece is cross-posted on the Public Justice blog.

    The Federal Rules of Civil Procedure matter. They can determine who wins and who loses. And they have been changing in the wrong direction for some time.  Now, proposed rule changes are moving forward and three things are clear: they are much better than what was originally proposed, they are still disturbing, and they demonstrate the critical importance of the Federal Rules process and access to justice advocates’ participation in it.

    Last year, Professor Arthur Miller, perhaps the nation’s premier expert on federal civil procedure, published a landmark article, Simplified Pleading, Meaningful Days in Court, and Trials on the Merits: Reflections on the Deformation of Federal Procedure. Reviewing a wide range of developments, including changes to the Federal Rules, Miller decried the fact that our civil justice system was moving away from both the goal plainly stated in Rule 1 – “the just, speedy, and inexpensive determination of every action and proceeding” – and the “justice-seeking ethos” on which the Federal Rules are based: the belief in “citizen access to the courts and in the resolution of disputes on their merits.”

    He noted that the objective of the discovery process was “obvious and seemingly unobjectionable: The parties should have equal access to the all relevant data; litigation was to be resolved based on the revealed facts, not on who was better at chicanery or at hiding the ball.” 

  • May 7, 2014
    Guest Post
    by Joseph Thai, Watson Centennial Chair in Law and Presidential Professor of Law, University of Oklahoma College of Law
     
    If there is a silver lining to the rushed—and botched—execution of Clayton Lockett last week in Oklahoma, it is the national soul searching that it ignited over the place of the death penalty in our society. The public post-mortem has appropriately spotlighted the means by which the state attempted to kill Lockett—the injection of a secretly procured drug cocktail that failed to put him to death in the “humane” manner intended, but instead caused him to writhe in agony for over half an hour before he died of a traumatic heart attack. But hidden in plain sight was another troubling dimension to the double execution Oklahoma had planned for that night, with the second now on hold. Both condemned men were black.
     
    The mug shots of Lockett and the other condemned prisoner, Charles Warner, splashed across the front pages and screens of news outlets across the nation. They stared out at the viewer, expressionless, but not lifeless, bound to the same fate, and bound by race.
     
    It is no secret that race infects the death penalty. In the landmark case of McCleskey v. Kemp, which involved a challenge to capital punishment in Georgia as racially biased, the Supreme Court in 1987 acknowledged that capital sentencing “appears to correlate with race.” In fact, the correlations drawn by a seminal study of the death penalty in that southern state were stark: among them, a defendant was 4.3 times more likely to draw the death penalty if the crime involved a white victim rather than a black one, and the racial combination most likely to result in the death penalty was a black defendant and white victim. The Court rejected the challenge in a deeply divided 5-4 ruling, accepting that “apparent disparities in sentencing are an inevitable part of our criminal justice system,” but reasoning that “the Constitution does not place totally unrealistic conditions on its use.”