Diversity, Access to Justice and Outreach

Judge Bernadette D’Souza, Chief Judge of the Civil District Court in New Orleans, Louisiana — Civil Legal Aid and Self-Represented Litigants

Equal access to justice begins at the court. Individuals living at or below the poverty level struggle to access the justice system and find it daunting, particularly when there is lack of representation by a lawyer. Civil legal aid ensures justice by providing free legal advice, representation or other legal assistance to low-income people who cannot otherwise get legal help. Key people who are disadvantaged by the lack of legal representation include victims of domestic violence, elderly exposed to financial fraud, parents disputing over child custody, disabled people, and disaster survivors. Barriers to accessing civil justice include the lack representation, the inability to pay court costs, lack of awareness that issue requires legal resolution, and no knowledge of legal aid.

The judges' role is to help self-represented litigants navigate the system and encourage lawyers to do pro bono work. Some United States organisations that help improve access to justice include Access to Justice Commission, Legal Services Corporation, and Pro Bono Project. The Modest Means Online Legal Directory is a panel of lawyers that will provide assistance to litigants from poor families who cannot afford lawyer: lawyers offer sliding scale fees for those falling below 400% of Federal Poverty Guidelines. Access to civil justice is key in terms of working towards eradicating poverty. Judges should get involved with their communities to see what underrepresented communities exist. For example, Judge D’Souza realised from talking to the community that unemployment was a key reason for lack of child support.

 

Judge Michelle Christpoher: Alberta Canada — Alternative Courts in Canada

Canada is progressing to recognise indigenous legal orders together with the current English common law and French civil law systems already in place. There is an overrepresentation of indigenous people in prison and indigenous children being cared for by the State. In 2019, a specialised court was opened in Calgary, Alberta based on indigenous values and which incorporated the indigenous worldview and peacemaking practices. The Court focusses on a restorative approach to crime, particularly for bail and sentencing. Healing plans are used to assist reintegrating offenders into community and encourage offenders to reconnect with their indigenous heritage. The Court was created in consultation with the indigenous community and is modelled after a teepee designed in a circular shape to promote participation and decision-making. Since its opening, the Court has had 2,016 separate appearances by accused persons. There is also a push in Alberta to make cultural competency training compulsory for all lawyers in Alberta.

 

Judge Mara Greene, lead Judge for Indigenous Persons Court, Toronto — Alternative Courts in Canada

The Indigenous Persons Court in which Judge Greene sits is one of 15 such courts across the province. Each has its own model and processes for the community to suit the people in the communities in which that court sits. For example, the Court in which Judge Greene sits is in an urban centre and it tailored to that particular community. The Court was set up in 2001 by judges to reduce the overrepresentation of indigenous peoples in prison and the justice system, but its processes have changed a lot since 2001. Its goals are to create a process of taking into account indigenous peoples and their cultures and practices, and to put the judge in a position to impose the best sentence that takes into account the specific needs of indigenous people.

Each day begins with a smudge and there is food at the back of the Court for people to take as many of the people who come through that Court struggle with food and security. After the smudge, the elder will open the circle. There will then be discussions in the circle from other indigenous peoples on the defendant’s offending and information about their background and history to give context to offending. There is then submissions from counsel, and the Judge will then impose the sentence. The elder will often give their thoughts on what would be a meaningful sentence. There is an operations committee to create procedures to ensure the needs of indigenous people are met. The Court focusses on bail hearings and sentencing after guilty pleas, not trial work. Indigenous workers are able to build relationships with the defendants and there is a bail program group to sign their release and watch them in the community. The Court was hit quite hard by COVID-19 as it has been conducted virtually and it is difficult to have the same level of personal touch.

 

Judge Blair Edwards of the District Juvenile Court of Louisiana — The Juvenile Court System and Trauma in Children

The depth of trauma exposure in children is much greater and more complex than simply abuse and neglect. Often children who suffer trauma are from families that have been involved in the child welfare system, are living in poverty and are of colour. Those are the same children that end up in the delinquency court. Adverse Childhood Experiences (ACEs) cause toxic stress and childhood trauma. The fight or flight response is engaged rather than frontal lobe for logical thinking. In the ACE Test asks 10 questions which were developed to determine how much trauma a person has suffered. These questions included: did adult swear at you, did an adult person fondle you or touch you inappropriately, did your family fail to look out for each other, and did you not have enough to eat. As someone’s ACE score increases, so do ACE risk-factors: they are more likely to attempt suicide, be an alcoholic, have health problems such as cancer and diabetes. Poverty and racism are also factors that affect children and contribute to trauma.

In her juvenile court, Judge Edwards uses trust-based relational intervention to meet the complex needs of children affected by trauma. There is a shift of questions from asking ‘what is wrong with you’ to ‘what happened to you’. If the juvenile justice system is reformed to better accommodate people with trauma, it should be smaller, more focused, more effective and judges should take steps to ensure court proceedings do not exacerbate their experience or exposure them to trauma.

 

Judge Lucy McSweeney, Canada — LGBT people and the Courts

Judge McSweeny discusses her backstory and experiences on how she found out she was lesbian. In Canada, same-sex marriage is legal and there is growing recognition of LGBT rights. This means that LGBT litigants in the courts do not have to hide or not go to court at all (particularly in the criminal and family court context). However, LGBT individuals may be fearful of how they will be treated because, for example, their intimate relationships used to be illegal and transgender people were thought to be mentally ill. The main challenge for Judges is to not have preconceptions and to not give in to unconscious bias. Rather, they should learn and listen from others.   As a Judge, you should want someone to come out of your courtroom feeling like they experienced justice, with their dignity intact, whether they won or lost their case.

Judges should not make assumptions about a person’s sexual orientation or gender identity. For example, if someone says they are married, do not say “Is your husband here to support you?”. Use someone’s chosen name and pronounce it properly. When someone’s relationship is relevant, listen to the evidence and use the language that is used, for example: if the word “roommate” is used, then use the word “roommate” even if it transpires that they are in a romantic relationship. Calling that person’s relationship by a different name, for example, by calling it a romantic relationship, could put that person in danger (for example, of losing their jobs or of being subject to harm from family members). Treat LGBT staff well. If you have young people in your court, do not assume it is safe for them to go home after court, know what resources there are to assist them so you do not send them back to place of unsafety. Elder rights and abuse of elderly LGBT people without children to look after them is also a pressing issue.

 

Judge Paula Blake Powell, Senior Parish Court Judge in Jamaica — Jamaican Courts and Community Outreach: Taking Justice to the People or Eroding the Awe and Dignity of the Court System?

Judges should use their judicial power and influence and be involved with outreach in their local community as it is taking justice to the people. Judge Powell speaks of four ways in which the Jamaican courts have involved in outreach. First, drug treatment courts have been established in Jamaica since 2001 and provide an alternative to incarceration for drug-dependent offenders. A holistic approach in dispensing therapeutic jurisprudence is taken and the drug treatment courts sit under the umbrella of problem-solving courts.

Second, since 2019, the Jamaican judiciary have held two public education days every financial year which is geared towards sharing information on legal and non-legal services. The purpose is for judges to inform the public on how to access court services and to break down court processes and procedures. This helps to strengthen the judiciary’s relationship with their community and build trust and confidence.

Third, the Kingston and St Andrew Family Court is a specialised court created in 1970s to provide legal and social services to its users. There are seven programs this court is involved in, including the Children Drug Treatment Program, Intake Counselling Program, Family Counselling Program, Parenting School, and Teen Pregnancy Project.

Fourth, the Jamaican Association of Women Judges is involved in projects, including the Women and Girls in Detention project and Women’s Centre of Jamaica Foundation. The projects focus on supporting issues faced by women and girls, for example, a program that looks to give girls who get pregnant as teenagers a second chance at education.

 

Justice Catrina Braid (trial judge in Ontario, Canada) and Justice Helen Whitener (Supreme Court Justice in Washington, USA) — Addressing the ‘Gavel Gap’: programs to help inspire and encourage diverse women to join the legal profession and bench.

Justice Whitener begins by discussing the ‘gavel gap’ which is the idea that American courts are failing to represent the diversity of those they serve. No American State has a bench that reflects its population, for example, women make up half population but constitute less than one third of the bench. There needs to be more representation of race, gender, disability, sexual orientation, and religious minorities in the legal profession and on the bench. In 2017, Justice Whitener organised a national association of women judges program called Colour of Justice. It aims to inspire young girls from diverse backgrounds to be involved in justice system and to inspire, encourage and empower the girls to see themselves as judges with aim to become judges.

Justice Braid decided there needed to be a similar program in Canada to promote diversity in the profession and on the bench. A similar program, called Braiding Diversity into Justice was launched with in-person programs in 2018 and 2019 and a virtual program in 2020 (due to COVID-19). Its aim is to connect young women who are marginalised or racialised to motivate and empower them to see themselves in the legal profession and on the bench. Men are deliberately excluded from the program to provide a safe space for young women, including transgender women, to discuss ideas and ask questions. For example, some of the topics discussed include the challenges unique to being a woman in the legal profession.

People not from those disadvantaged groups have a duty help those who are disadvantaged. Links in the Judges’ presentation will be helpful for those wishing to set up similar programs. The Braiding Diversity into Justice Network is also in the process of creating templates to help others create their own programs. The National Association of Women Judges website also has tools to help someone put a program together.

My Comment: Is there (or is there potential for there to be) a similar program to these in New Zealand? As someone from a diverse background, I think I would have greatly benefitted from a program like this (and probably still would). From my perspective, one of the most obvious ‘gavel gaps’ in New Zealand (particularly in Auckland), is the disproportionate number of Asian judges (and other legal professionals in senior positions) in relation to the number people in the community of Asian descent. There is only a handful (literally) of judges in New Zealand of Asian descent, compared to around one fifth of the population identifying as Asian. I think there could be potential for a program similar to that of Colour of Justice and Braiding Diversity into Justice, in New Zealand.

 

Justice Patricia Broderick, USA — Diversity and Disability

Justice Roderick discusses her personal background, how she was able-bodied but a car accident meant she now has a mobility impairment and requires a wheelchair. People with disability are the biggest minority in the world: people of seen and unseen disabilities are discriminated against. There are many obstacles to people with disabilities in accessing the courts, for example: no accessible public transportation to the courthouse, no parking if you arrived in a car, no usable accessible bathrooms, steep inclines to the courthouse, and no one expects people with disabilities to come to court or be a lawyer or a judge.

Legislation requiring all public spaces to be accessible has meant that disabled people have seen some changes and also has also meant that when the law is violated, disabled people have a voice to be heard. But putting physical accessibility aside, the biggest obstacle to inclusion is society’s attitudes and prejudice towards the differently abled. It is hard to change attitudes, as you cannot order it as a judge and it cannot be legislated. There must be changes in the law to change behaviours and then with time, the mind will follow. Diversity inclusion means equal physical access to the court, equal unbiased treatment under the law and equal respect under the law.

A judge’s job is to acknowledge diversity in the fair administration of justice. Judges can learn to recognise the physical and attitudinal barriers to people with disabilities, to learn to deal effectively with a variety of disabilities, to identify persons with disabilities, to be open to requests of reasonable accommodation (for example ramps, wider doors, pathways with no obstacles, sign or foreign language interpretation, audio interpretation, slower pace in speech, speaking louder, forms in braille or large print, more frequent breaks and longer bathroom breaks). Judges can also be considerate of word choices (for example, not saying someone is “crippled”). If you are unsure what a person needs, simply ask them what they need. Talk to the person with the hearing impairment not the interpreter. Judges are role models and can influence change, and should also make sure lawyers and other participants show responsible attitudes towards people with disabilities.

 

Reported by Xin Yee Lau