Thanks, Obama! More on how due process is eroded by immigration policies

I recently wrote about how the Trump Administration’s immigration policies are drawing pushback from both Article III and immigration judges on the grounds that they violate due process (including failing to give migrants proper notice of the grounds on which they could fight their cases). But disrespect for migrants’ due process rights are not limited to the current administration. Texas Public Radio reports that back in 2014, the Obama Administration decided to fast-track immigration cases involving unaccompanied minors. That decision forced the immigration courts to delay thousands of other pending cases, which the Obama Administration arbitrarily rescheduled for November 29, 2019 — five years into the future. When the day arrived this past Friday, more than 100 migrants showed up for their hearings, only to learn that they had been postponed again — until 2021.

Delaying cases is a due process violation every bit as tragic as failure to give proper notice, and both the Trump and Obama administrations are guilty of using immigration courts to score political points.

India’s Chief Justice: “Most subordinate courts lack basic infrastructure”

Last year I discussed a shocking story on the backlogged conditions in India’s courts, and the extraordinary consequences of that backlog for litigants, lawyers, and judges alike. Speaking this week at the opening of a new courthouse, India’s Chief Justice Deepak Misra once again acknowledged the problem, stating that the courts lack the basic infrastructure needed to competently manage their caseloads.

The Chief Justice apparently blamed the challenges on the “miniscule” budgetary allocation that the courts receive. And surely the courts are hampered by the limited space and staffing they receive. But blaming the problem entirely on resource dependence is problematic in its own right. Delays and administrative problems have been shown repeatedly to be at least partially a problem of court culture. Can the Chief Justice convince the country’s judiciary to adopt internal changes and accountability measures that might, in the end, win them additional support for more resources?

A discouraging survey on lack of confidence in the Kenyan courts

A new study reveals that nearly half of Kenyans seek to resolve their legal disputes outside of court, either through informal means or by not pursuing a claim at all. The reasons are discouraging but unsurprising:

The top reason given for inaction was the belief that acting would not help, a view that was held by a third of the respondents.

The second most frequent rationale was that the other party was more powerful (20 per cent) than the complainant. Three in 10 Kenyans from the lowest income group say they did nothing because the other party was more powerful compared to one in 10 people in the highest income group. The numbers imply that the justice system is not seen as an equalising force by a sizable part of the population and that the experiences of those who sought legal services differed depending on income levels.

The study also found that 2 out of 3 Kenyans believe their court system generally protects the interests of the rich and powerful above all others, and only 1 in 3 felt that they can rely on the courts for fair justice.

Access to justice was hindered in other ways as well. Nearly 1 in 5 Kenyans said that they have no idea how to even initiate a legal claim. And those can file a claim may have to wait an eternity for resolution, since 1 in every 6 cases currently pending in the Kenyan courts is more than ten years old.

These problems are not unique to Kenya, of course. Every court system faces the considerable challenge of providing equal justice in a society that is inherently unequal. But the survey nevertheless brings those challenges into stark relief once more.

Canada’s federal criminal reform bill put on hold

A bill that would introduce a wide range of reforms into Canada’s federal criminal justice system has been tabled. Among other things, Bill C-75 would:

  • Take measures to decrease significant court delays;
  • Eliminate peremptory challenges of jurors;
  • Remove “zombie” parts of the criminal code that have been found unconstitutional; and
  • Increase the maximum sentence for repeat domestic abusers.

We will continue to keep an eye on the bill’s progress, if any, in the coming months.