Tag Archives: Rule of Law

Pay the Judge, Get Justice?

Posted on by

In many countries, biased, corrupt judges not only fail to uphold the rule of law, but actually help create the culture of impunity. At the International Anti-corruption Conference in Bangkok a panel of judges, justices and prosecutors were trying to establish essential elements of an independent judiciary system.

Nobody disagreed with Charles Caruso of the American Bar Association who postulated that a trusted criminal justice system cannot exist without an independent judicial authority acting in concert with an independent prosecutorial body, each free from corruption. Key propositions included:

• Embedding judicial independence in the constitution;,
• Appointing or electing respected, distinguished individuals to be judges;
• Providing judges with guarantees against punishment for decisions politicians or other centers of power may not like.

The U.S. judicial and prosecutorial systems were presented as structures in which multiple checks ensure judges’ and prosecutors’ integrity.

Judicial independence is a dynamic concept. Justice Barry O’Keefe from Australia cited Indonesia as a country where a once independent judiciary lost its independence and ethical bearings during the Suharto regime. Where the rule of law prevails, a respected, independent judiciary can be the single institution enjoying the public trust in times of a political crisis, said Justice Vichai Vivitasevi from Thailand in reference to his country. However, judges cannot take on the role of political arbiters, he said, without risking their independence.

Enabling the Disabled

Posted on by

A bus driver pulls a man in a wheelchair up an access ramp.

A bus driver pulls a man in a wheelchair up an access ramp.

Imagine for a moment that you couldn’t walk. If you had to use a wheelchair to get around, could you get on and off a bus? If the entrance to a store, office or other public building were slightly elevated, could you get to the door and open it by yourself, and would the doorway be wide enough to accommodate a wheelchair?

Imagine for a moment that you were deaf. Could you make an appointment with a doctor, communicate your symptoms, and understand instructions from the medical staff during that appointment? Could you register for and understand a training session or a class at a university? Could you follow a news program on TV or watch a video?

Imagine for a moment that you were blind. Could you get to and from a store on your own and find what you want? Could you order a meal at an unfamiliar restaurant? Could you get to and from a polling station during an election and cast a vote?

Thanks to the Americans with Disabilities Act (ADA), which turns 20 this month, transportation, public facilities and many services in the United States are more accessible to all. Thanks to ADA, for example, many city buses and trains have lifts or ramps for wheelchairs, priority seating signs, handrails, slip-resistant flooring, and information stamped in Braille. Emergency call centers are equipped with telecommunications devices for the deaf (TDDs), and federally funded public service announcements have closed captioning. Most importantly, ADA prohibits discrimination against people with disabilities in job recruitment, hiring, promotions, training or pay.

ADA’s provisions have helped enable many people to live independently, despite any physical or mental disability, and have helped protect their rights. Are there similar laws where you live?

Speaking Up to Remain Silent

Posted on by

Anyone who has seen a police show probably has heard these words: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have a right to talk to a lawyer before answering any questions, and you have the right to have a lawyer present with you while you are answering any questions.”

A Border Patrol agent reads the Miranda rights to a suspect.

A Border Patrol agent reads the Miranda rights to a suspect.

This speech, commonly called the Miranda rights after the 1966 court case Miranda v. Arizona, reminds people of their Fifth Amendment right against self-incrimination and their right to legal counsel. But a more recent case before the Supreme Court, Berghuis v. Thompkins, refines how suspects can invoke or waive those rights.

During a three-hour police interrogation about a shooting in 2000, suspect Van Chester Thompkins Jr. stayed mostly silent. Because Thompkins never expressly said he would not speak to the police, though, the police did not interpret his actions as exercising his Miranda rights, which would have required an end to the interrogation. The police continued to question Thompkins until he gave a one-word answer they took as a waiver of his Miranda rights, and as a confession. Thompkins was tried and convicted, but appealed his case, saying that his refusal to speak constituted an invocation of his Miranda rights and that the police had violated them.

In a 5-4 decision (PDF, 284KB), the Supreme Court sided with Thompkins’ conviction. Writing for the majority, Justice Anthony Kennedy said that suspects must invoke the right to remain silent “unambiguously” — they must clearly state their refusal to talk to the police — just as they must clearly state their desire for an attorney, as decided in Davis v. U.S. Justice Sonia Sotomayor dissented, calling the decision “an unprecedented step away from the ‘high standards of proof for the waiver of constitutional rights’ this Court has long demanded” — one that “ignores the important interests Miranda safeguards.” (You can read more about the case in this analysis on the SCOTUS blog, a privately run site.)

What do you think of the Supreme Court’s decision? And are there laws similar to the Miranda rights in your country?

Judging Elena Kagan

Posted on by

President Obama announced this week that he had chosen Solicitor General Elena Kagan to replace Supreme Court Justice John Paul Stevens when he retires. In his remarks to the press, Obama highlighted Kagan’s ability to work with both conservatives and liberals throughout her career.

“Elena is respected and admired not just for her intellect and record of achievement, but also for her temperament — her openness to a broad array of viewpoints; her habit, to borrow a phrase from Justice Stevens, ‘of understanding before disagreeing’; her fair-mindedness and skill as a consensus-builder,” he said.

Although Obama has voiced his preference, the Senate has the final say as to who will serve on the court, according to the U.S. Constitution. Kagan already has won Senate confirmation once, as solicitor general, drawing the support of seven Republicans as well as all Democrats and Independents. But her confirmation in that temporary, political position does not guarantee she will win Senate approval for one she could hold the rest of her life.

“Ms. Kagan is currently a member of President Obama’s administration and serves at his pleasure in a position that lasts no longer than the administration itself,” Senate Republican Leader Mitch McConnell said a few hours after Obama’s announcement. “By contrast, today she was nominated for a lifetime appointment to the nation’s highest court.”

“The standard of scrutiny is clearly much higher now. Now we must determine whether someone who is a member of the President’s administration will be an independent and impartial jurist on the nation’s highest court,” he continued.

What do you think?

Women Lawyers Beating the Odds

Posted on by

Last week I had an opportunity to go see the documentary film Courting Justice, which tells the  story of seven South African women who fought against all odds to win judgeships in the country’s highest courts.  These women judges had – and continue – to face discrimination because of their race and because of their gender.   But still they fight on because they believe women have an important role to play in the judiciary of their country.

Supreme Court Justice Sonia SotomayorDemocracy is for everyone – male and female – and the Obama Administration has placed heavy emphasis on the importance of women in every aspect of the social, professional and economic lives of their countries.  And yet I remember the huge outcry surrounding Sonia Sotomayor, the first Hispanic woman (actually the first Hispanic of either sex) to serve as U.S. Supreme Court Justice.  If you recall, Sotomayor said it was not only her deep knowledge of the law but her personal background that helped qualify her for a seat on the highest court in the United States.  Some people vehemently opposed the idea that gender, ethnic and socio-economic background should be factored into selecting a Supreme Court judge. 

Although lots of women complete law school and many enter the profession, many drop out because they face discrimination in being promoted as well as daunting challenges in balancing work with family responsibilities.  Some feel that women, because of family responsibilities and the “weakness” of their sex, have no place in the law profession.  Others say that it is precisely because women often have more personal experiences with fighting discrimination that they make better judges. 

What do you think is a “woman’s place” in the law profession?

You can watch a clip from Courting Justice here: http://www.youtube.com/watch?v=6rT85-zhnWY

The Social Contract in the 21st Century

Posted on by

The balance between freedom and security is always hard to strike in democratic societies. There is a famous quote by Benjamin Franklin: “Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.” But we necessarily give up certain individual liberties when we enter into society for the betterment of everyone. Philosopher Jean-Jacques Rousseau addressed this balance in his treatise on The Social Contract in 1762. According to Rousseau, “Laws are, properly speaking, only the conditions of civil association.” He also specified that the “… law considers subjects en masse and actions the abstract, and never a particular person or action.” (The Social Contract, Chapter VI)

Traffic laws are a clear example of a necessary condition for modern civil association. In order to help remind people of these laws and a police presence enforcing them, many of us have had the experience of being stopped at a roadside checkpoint. This seems very in keeping with Rousseau – everyone gets stopped and asked to show their licenses, regardless of who they are. They apply to everyone en masse regarding an abstract behavior we as a society find undesirable.

On the other hand, a fundamental tenet of the justice system in the United States is that you are innocent until proven guilty. At a traffic checkpoint, there is a certain presumption of guilt without any evidence of misconduct. Is it a violation of my personal right to move about freely (in accordance with the laws, of course) when I am stopped at a checkpoint simply because someone else on the road might be breaking the law? Seems a silly question to even ask when the relative inconvenience for everyone stopped is so small a detractor compared to the societal good of apprehending violators. But what if we take this to the next level?

The magazine New Scientist recently suggested that we should each give the police our DNA. DNA samples are powerful forensic evidence at a crime scene to identify culprits or exonerate those wrongly accused, but DNA evidence is less effective without an existing sample to match it against. The more DNA samples you have, the faster you are able to locate criminals – makes sense! And it’s Rousseau-like in its blanket nature – no profiling, no randomized samples, just everyone’s DNA, equal before the law.

How many of those who willingly pull over at traffic stops and flash their license though would also offer up a cheek swab or finger prick for the local sheriff’s records? UK police had been creating a DNA database for years, collecting samples from everyone they arrested – whether they were eventually convicted or not – and keeping them on record. Then, the European Court of Human Rights ruled that it was a violation to keep genetic samples from people not convicted of a crime and ordered as many as 4.4 million DNA samples destroyed.

Where do you think the balance between freedom and security should be?

Achieving Democracy by Un-Democratic Means?

Posted on by

On February 18, Niger’s military stormed its presidential palace and staged a coup, ousting the leader.

Taking over a government by force is clearly not considered a tenet of democracy. But the BBC reports an interesting finding – that in the case of Niger, many citizens believe the coup may bring democratic reforms and change for the better. “We’re proud of what the soldiers have done and we expect them to manage a clean, honest transition,” one man said.

The U.S. Assistant Secretary of State for African Affairs, Johnnie Carson, recently spoke about the incident. The coup that has just taken place, he said, offers an opportunity to move Niger back into the ranks of democracy. He quickly cautioned, however, that “no coup, whether it is a civilian or military coup, is a good coup. Coups by their nature are bad” and a “disruption of the political process,” he said.

What do you think of Carson’s remarks? Do you agree that there is no such thing as a good coup?

Cameras, Cameras Everywhere …

Posted on by

Last week, Jane wrote about the growing use of cameras to issue tickets for traffic violations as a law-enforcement technique. In an exercise of internal democracy, I thought it would be interesting to continue the discussion and expand it a bit to explore how these issues quickly unravel where there are privacy concerns at play in the 21st Century.

I don’t have a problem with enforcing traffic laws, or even raising revenues for municipalities. I have been issued exactly one speeding ticket in my driving career – I was late for an appointment, no one else was on the road, and I didn’t see the cop who was purposefully stationed to catch unsuspecting drivers like me bending the rules on a deserted back road. When his siren went on, there was nothing to do but pull over, roll down the window and sheepishly admit, “You got me.” It cost me $80 to learn the lesson that you can’t catch the clock with the gas pedal.

The only difference between my encounter and Jane’s was the method by which our infraction was documented and ticketed. In this context it’s hard to argue the problem since we were both clearly in the wrong, and the law would be worthless if it were not enforced. The slippery-slope potential for this surveillance technology, however, makes me slightly more wary of its routine integration into law enforcement as regards privacy concerns. If the top of the slope is getting a notice in the mail that includes the exact time and date of a traffic violation along with a picture of your license plate and the driver, what is at the bottom?

The Lower Merion School District in Pennsylvania, which includes Harriton High School, is the subject of a class-action lawsuit involving its covert use of webcams on school-issued laptops.

The Lower Merion School District in Pennsylvania, which includes Harriton High School (above), is the subject of a class-action lawsuit involving its covert use of webcams on school-issued laptops.

I recently saw a story that few would not argue constitutes a violation of privacy. In fact, it’s going to court as a class-action lawsuit. The Lower Merion School District in Pennsylvania is being sued for remotely and covertly activating the webcam on school-issued laptops. The school’s administration has admitted that the spyware allowing them to access the webcam installed on the laptops they distributed to the students, but claim it was only meant to be used in case the computer was stolen. The story came to light when a student, whose parents are now suing the school district, was punished for “improper behavior in his home.” The evidence? A photo taken by the student’s webcam.

All of a sudden, we have slipped a lot further down the slope.

Though the “improper behavior” in this particular student’s case is not disclosed, is it just the fact that the student was in his home that makes this example so gut-checking? The fact that he is a minor? What if it had happened on school property – does that change our evaluation of documenting students without their knowledge? What if it is a wider-spread phenomenon than Lower Merion, Pennsylvania?

Other blogs that have commented on the Lower Merion story point to a recent episode of PBS Frontline that documents how the integration of new technology into a failing school in the Bronx in New York City helped turn it around. At one point, a school administrator demonstrates how he can remotely access any student’s computer at the school and see what they are doing – including taking a picture of them using the photo booth application to surprise them into getting back on task.

The potential for abuse and privacy violations is extreme in the digital age, and it’s a highly complex issue I think deserves more attention. In fact, I’ve got at least two more posts brewing in me on this already, but for now I’ll leave it here and hope that you continue the discussion in the comments below.

Are Traffic Cameras Unfair and an Invasion of Privacy?

Posted on by

A few months ago my husband received a traffic ticket in the mail. It had a crisp photo of his beloved pick-up truck, and its license plate number was clearly visible. It listed how fast the vehicle was going over the speed limit. It gave an exact location and date for where and when the photo was taken.

Unfortunately, the driver at the time was me.

Our marriage and checkbook survived that one, but traffic cameras that catch drivers who speed and ignore stop lights are creating howls of protest from citizens all across the United States. “Invasion of privacy!” they cry. “An unfair way to generate revenue!” some say.

There’s no question that traffic cameras generate revenue for the municipalities that use them. In Arizona alone for the year 2009, the 650,000 tickets issued as a result of lawbreaking drivers being caught on camera added $37 million to the state’s coffers, according to a recent report by National Public Radio.

Are traffic cameras unfair? Not according to the Insurance Institute for Highway Safety (IIHS), an independent, nonprofit organization dedicated to reducing deaths and injuries on U.S. highways. The number of drivers and vehicle miles traveled has risen faster than the availability of police officers, IIHS says. Reduced resources mean fewer police officers in some jurisdictions; and American police everywhere must give higher priority to the demands of apprehending violent criminals as well as homeland security. Traffic cameras, which remain vigilant at the same post every day and every night, are effective in reducing travel speeds and accidents, according to a number of studies.

Are traffic cameras an invasion of privacy? The Fourth Amendment to the U.S. Constitution says that people have a right to be safe in their own homes. Technology, without a doubt, can be a threat to personal privacy when it is used to tap private telephones and hack into personal computers.

In the public sphere, however, the “reasonable expectation of privacy” comes into consideration. Most people and judges agree that if someone takes a picture of you using a public toilet or in a gym shower, then that’s an invasion of personal privacy. But IIHS notes that driving is a regulated activity on public roads and there is no law that says drivers shouldn’t be observed on the road or their violations shouldn’t be recorded.

What are your thoughts?

(As for me, I’m more careful now about obeying speed limits – especially when driving my husband’s truck.)