Reblaw2013

Happy Thanksgiving to all the Americans out there, and TGIF to everyone else! As part of our preparation for Reblaw 2010, the Reblawg will be featuring commentary from our panelists on topics they will be discussing at the conference.  Ann Skelton, a human rights lawyer in South Africa specializing in the rights of juveniles in the criminal justice system, was kind enough to send us some material in anticipation of her exciting panel on the same topic.

Strategic litigation of children's rights in South Africa: A focus on sentencing of children

by Ann Skelton

Children were involved in the forefront of the struggle against apartheid. Iconic pictures and anecdotes of the Soweto riots provide pungent memories of this. As the end of apartheid lurched into view, rebellious lawyers in South Africa began to turn their attention towards the shaping of a new system for children in the criminal justice system, with a heady mix of protest, advocacy, and legal proposals for change. The coming to power of a democratically elected government in South Africa spelt great hope for the future. After 1994 rebellious lawyers donned sober suits and got down to the work of drafting laws and planning with government for effective implementation of systems that would improve the treatment of child offenders.

Incremental improvements were seen during the democratic government’s first 15 years - increased diversion of child offenders, the growth of restorative justice options, a reduction in the number of children awaiting trial in prison. In addition, a comprehensive new law, the Child Justice Act (soon to come into operation) was drafted). However, the struggle to ensure fair and appropriate treatment of child offenders was not over. ‘Tough on crime’ agendas were persuasive to politicians, and so South Africa saw the introduction of legislated minimum sentences, which were applicable to 16 and 17 year olds, as they were to adults. These sentences included automatic life imprisonment for certain categories of murder, rape and robbery. A life sentence in South Africa means that a prisoner must serve 25 years in prison before being considered for parole, and this pre-parole period is applicable to prisoners below or above the age of 18 years.

The Centre for Child Law has been undertaking strategic litigation on children's rights since 2003. The work was found to be necessary to close the gap between the promises made to children and the actual reality on the ground, and to shore up children’s rights in situations where new laws are introduced that are not in their interests, such as the minimum sentences laws. In a sense, this kind of litigation in the children's rights field presents a partial return to rebellious lawyering, within a democratic governance context. Strategic litigation, sometimes also called impact litigation, involves selecting and bringing a case to the courtroom with the goal of creating broader changes in society. People who bring strategic litigation want to use the law to leave a lasting mark beyond just winning the matter at hand. This means that strategic cases are as much concerned with the effects that they will have on larger populations and governments as they are with the end result of the cases themselves. South Africa had a vibrant history of strategic litigation dating back to the Apartheid era, and we have the advantages (since 1994) of a Bill of Rights in the Constitution which contains an impressive array of fully justiciable rights, relatively relaxed rules on standing, an inclusive approach to litigation and an independent judiciary. The rule of law and the separation of powers, whilst occasionally seeming precarious, are generally upheld.

In Centre for Child Law v Minister of Justice (National Institute for Crime Prevention and Reintegration of Offenders and Amicus Curiae) 2009 (6) SA 632 (CC), the Centre successfully challenged the constitutionality of minimum sentences (long terms of imprisonment including life) for 16 and 17 year olds. The court declared certain subsections of the minimum sentences Act to be invalid insofar as they referred to 16 and 17 year olds. The effect going forward is that when a court is sentencing any person who was below 18 years at the time of the commission of the offence, the court has full discretion and must follow the Constitutional injunction to use imprisonment as a last resort and for the shortest appropriate period of time. This judgment and its implications going forward will be discussed in detail during the panel presentation.

Our Keynote speaker, Bryan Stevenson, recently was quoted in the NY Times regarding his representation of Joe Sullivan, a young man sentenced to life in prison without parole for a crime he commited when he was 13 years old.  Bryan Stevenson asked the court to say that the Eighth Amendment’s prohibition of cruel and unusual punishment forbids such sentences for youths under the age of 14 convicted of any crime, including murder.

“To say to any child of 13 that you are only fit to die in prison is cruel,” said Bryan Stevenson, Mr. Sullivan’s lawyer. “It can’t be reconciled with what we know about the nature of children.”

Bryan Stevenson is an outspoken advocate for fairness and humanity in the criminal justice system. As he said in a recent speech, 

"I have been trying to say things about poverty and race and injustice in America. It's not always an easy thing to talk about. There's a lot of fear in our society ... Within the work I do, I see it manifesting itself in some very tragic ways. Today, in the United States, we've had this phenomenon emerge that has fundamentally changed our society. It's called mass incarceration. In 1972, there were 300,000 people in jails and prisons. Today there are 2.3 million. There are 6 million people on probation and parole in this country, and the consequence of that is devastating. The United States incarcerates more people per capita than any other country in the world. For poorer communities and for communities of color, the consequences have been absolutely horrific. One out of three black men between the ages of 18 and 30 is in jail, in prison, on probation, or on parole. In some states, we actually take away the right to vote, permanently, for people with criminal convictions. In my state of Alabama, 31 percent of the black male population has permanently lost the right to vote. We now have economic incentives because we built these prisons to keep 2.3 million people in jail and prisons, and so there are a lot of folks who actually don't want crime to decrease. They don't want there to be fewer people in jails and prisons. And this creates this world where there are these real human problems."

To learn more about making the law work better for all people, come to Reblaw 2010!

President Obama has recently called a summit to discuss the Afghan war and to debate the contentious issue of whether to send 40,000 more troops to fight in the conflict that has been battering the country since 2001. Polls in the U.S. indicate that people are split nearly evenly on whether more or less American soldiers belong in Afghanistan. This comes along with the news (reported here in the New York Times), that Iraq faces a constitutional crisis in the coming year, on the eve of America's planned "waterfall" troop withdrawal in the spring, throwing another wrench into George Bush's plan to spread democracy in the Middle East with the midas touch of the American military. Never has there been a more important time to reflect upon the purpose and impact of war. Eric Bogle's mournful and inspiring song And the Band Played Waltzing Matilda (1971), covered here by Irish/English band the Pogues, tells the story of a young Australian man recruited to fight in the First World War and sent into battle at Gallipoli. The song eloquently expresses the brutality and futility of war, the fate of veterans, and the apathy of later generations, and has become an anthem for thousands of Australians and New Zealanders who make pilgrimages to Turkey for Anzac day to commemorate those lost in the battle.

"And as our ship pulled into Circular Quay

I looked at the place where me legs used to be

And thank Christ there was nobody waiting for me

To grieve and to mourn and to pity"

Foreshadowing the Brixton race riots of the 1980s, The Guns of Brixton (1979) reflected growing local discontent due to ongoing oppression by police.

When they kick down your front door, how you gonna come?

Hi everybody!

Welcome to the Reblawg, the 2010 Rebellious Lawyering Conference's official blog.  We are going to start posting regularly about all things RebLaw, and I hope you keep checking back to see what we're up to as the conference approaches!

As the weather gets colder, winter begins creeping up on the calendar, fireplaces turn on, turkeys are roasted and sleigh bells start ringing, we are all reminded of one thing: turning the legal world on its head through rebellious advocacy and activism!  RebLaw 2010 is beginning to draw near, and, in preparation, our loyal team of seven directors (with a lot of help, obviously) has been putting together an amazing program.  This year's conference is going to be better than ever, and we already have a diverse array of panels and workshops being finalized that are going to be incredible, featuring speakers from all over the U.S. and overseas.  First things first: we have three (3) keynote speakers this year lined up and ready to go.  On Friday, our speech will be delivered by public interest lawyer extraordinaire Bryan Stevenson, known for making his audience, and prosecutors, burst into tears, albeit for different reasons. On Saturday, we will have reknowned scholars, and two of America's premier critical race thinkers, Lani Guinier and Gerald Torres speaking together, which should be bad ass indeed. I recommend everyone check out their biographies on the RebLaw main page, or just google their names, to get stoked for the conference.

Registration will be available online in a number of days, and we highly encourage everybody to check as often as possible to see when panels and workshops have been put up, and to register as soon as you have a chance.  We will be adding them to the site as they are finalized, which should be very soon. Our panel topics include juvenile justice in the USA and South Africa, mass incarceration and its effects on communities, clinical legal education in the Middle East, the challenges faced by LGBTQ prisoners, the future of ATCA litigation, state terrorism in Sri Lanka, the destructive effects of mountaintop removal, and more! Reblaw will also feature an array of how-to workshop sessions, career-building lunch talks, and a documentary film showing. I am also pleased to announce that RebLaw is growing its base, and this year will feature the first panel organized, planned and funded without any participation by Yale law students.  To that effect I'd like to give a shout out to Gabe Armas and his sweet coalition of student groups at NYU, who are developing what should be a fantastic panel dealing with abuses of detainees at border detention facilities.

In addition to all this content, we will also be featuring, as always, free housing with local rebels, good food, and a chance to both network and party with your fellow progressives.  We will be updating this blog on the reg to keep everyone up to date with the latest happenings, so keep checking back to find out what's going on, when registration starts, what our t-shirts are going to look like (slick new design coming soon!).  We also will be bringing you informative submissions from Reblaw panelists to get you prepped for the panels.

We know travel can be expensive too, so we're going to find ways to connect you with fellow rebels to share the costs of travelling so that attending the conference can be cheap and easy (and have a smaller carbon footprint). A good place to start would be joining the Reblaw facebook group: just go on facebook and search for "Reblaw", it should be the first thing that comes up.

So get excited, keep checking back, and always remember to fight the power.

Peace,

Seth