The Effect of Flawed Justice Systems On The Poor

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The Effect of Flawed

Justice Systems on the
Poor
Mr. Toole
Carolyn von Bredow
A report on the problems, effects, and solutions regarding the pervasive problem of flawed justice
systems worldwide.
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Preface
Poverty, simply put, is the most pervasive issue that todays world faces. It seems that no
matter how many medical missions are send to developing nations and no matter how many
schools are built, the end of poverty is not in sight. The people of developing nations are living in
slums facing starvation and disease. What is to blame for this phenomenon? This is not a simple
or straightforward question to answer, but it is clear that the discrimination against the poor in
justice systems internationally is a contributing factor.
In the developing world, it ultimately comes down to violence. The poor are victims of
unspeakable violence on a daily basis that prohibits access to basic needs and prevents any
positive development. This violence is not prevented by the justice systems the justice system
perpetuates it. The United Nations reported in 2008 that most poor people do not live under the
shelter of the law, but far from the laws protection.1 This is a blatant account of the problems
that the developing world faces that the rest of the world is blind to.
That said, the problem of flawed justice systems targeting the poor is not unique to the
developing world. In the developed world, justice systems are discriminatory in ways that often
go unnoticed to those that are not affected. The poor face vagrancy laws that essentially make
homelessness a criminal act. They face a complete lack of representation in court through
underfunded legal aid systems. Non-violent offenders face prison sentences that keep them
detained rather than working to provide for themselves and their families. Perhaps the most
disturbing part of the developed worlds justice system is that the discrimination of the poor is
not because of a lack of compliance to the laws, but policies that target the poor are considered
legally acceptable.
Everywhere in the world, when justice systems fail, the poor are the ones who suffer. The
onus is on the wealthy and privileged to make a radical change to justice systems globally for the
sake of the marginalized. It is only through intervention in the system that the poor will finally
get the justice they have been denied.
1 United Nations Rule of Law. Making the Law Work for Everyone. United Nations
Report. New York: Commission on Legal Empowerment of the Poor, 2008.
Document. Page 2
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Table of Contents
Summary.1
Significance.2
Background.8
Expert11
Role of Control.13
The Logic of Evil..18
Case Studies
Kenya....22
The United States of America...29
Sweden..35
Canada...39
International Organizations...43
Solutions....47
Appendix...52
Bibliography..54
Summary
This report provides a thorough analysis of discrimination against the poor in justice
systems by diagnosing issues in justice systems, identifying examples worldwide of both triumph
and failure in regards to the remediation of the issue, and suggesting ways that justice systems
could be improved internationally. There are four individual cases studied investigating the
extent of discrimination against the poor in countries around the world; these include Kenya, the
United States, Sweden, and Canada.
The research for this report was conducted mostly online in order to access both historical
and contemporary sources, as this issue is not only a recent matter. The information collected
comes from scholarly books, journals, news articles, and reputable web pages. Some of the
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sources used often throughout the report are documents from the United Nations, journals from
JSTOR.com, and Gary Haugens The Locust Effect.
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Significance
It is generally agreed upon that the justice system should to be fair to people of all
backgrounds and classes, but what does true justice really mean? The process, from lawmaking
to sentencing, must be fair for all. The people need laws that are designed to protect them from
discrimination and keep them secure, enforcement of those laws, a fair trial, reasonable
sentences, and the ability to collect damages. Without any one of these, justice is but an illusion.
Most every country is the world is not lacking in laws that are meant to protect the people
from violence. Gary Haugen, a human rights lawyer and the founder of the NGO International
Justice Mission that seeks to fix justice systems in developing world, said this upon discovering
the lawlessness and violence of the developing world: For me, as a lawyer, my first reaction
was to say, Change all the laws. We need to make all of this violence against the poor illegal.
But then I found out: it already is.2 Laws that protect the people physically are not the real issue.
The problem gets complicated in relation to vagrancy laws. The term vagrant refers to
someone who is idle and refuses to work though they are unable to do so,3 but any laws relating
to poverty fall under the term vagrancy law. This includes laws against panhandling, sleeping
in public places, loitering, and homelessness. Most laws prohibit taking part in certain acts, but
vagrancy laws can prohibit states of being, like being homeless. Though in many states in the
United States these laws have been struck down as unconstitutional,4 they are not completely
eradicated. The vagueness of these laws allow for many interpretations of what is or is not a
crime. Vagrancy laws punish the poor for circumstances outside of their control, which is
unhelpful to the issue of poverty and unfair to those said to be violating vagrancy laws.
Enforcement of the laws is critical to sustaining a functioning society. Inadequate police
services are a problem all over the world, though the system is most deficient in the developing
2 The hidden reason for poverty the world needs to address now. By Gary Haugen.
Perf. Gary Haugen. Vancouver. 19 March 2015. Video.
3 The Free Dictionary - Legal Dictionary. Legal Definition of Vagrancy. 9 March 2006.
Web Page. 8 March 2016.
4 Criminal Defense Lawyer. What is a Vagrancy Charge? Laws & Penalties. 10
December 2013. Web Page. 9 March 2016.
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world. In many African countries that face severe poverty like Kenya, the police force is widely
known for being corrupt and inadequate. The perpetrators of crime are often simply not charged
and their crimes are not investigated. In Bolivia, cases of sexual violence are considered private
matters and the victim must pursue a criminal prosecution, so the police will not investigate
without payment from the victim.5 Even developed countries like the United States can suffer
from a severe lack of law enforcement, though mainly for a different reason. Budgetary restraints
and refusal to invest money in the police force have limited the law enforcements ability to do
their job. Justice cant be served if law enforcement cannot or will not protect the people.
Conversely, for the system to be just, the people must be able to receive a fair trial. The
right to a fair trial and the conventions of a fair trial are outlined in articles 10 and 11 of the
Universal Declaration of Human Rights,6 article 9 of the International Covenant on Civil and
Political Rights.7 Though all 192 members of the United Nations have agreed to abide by the
Universal Declaration of Human Rights,8 the practice of these laws varies around the world. The
International Covenant on Civil and Political Rights, a legally binding treaty of the United
Nations which Canada, the United States, Kenya, and Sweden (each of which are studied
specifically in this report), have agreed to abide by includes the right to legal aid. This treaty
states that a person has the right to have legal assistance assigned to him, in any case where the
interests of justice so require, and without payment by him in any such case if he does not have
sufficient means to pay for it.9 Though legal aid is required under international law, the actual
practice of legal aid is very limited in certain poorer countries that arent able to offer many
5 Inter-American Commission on Human Rights. Denouncing Sexual Violence
against Adolescent Girls in Bolivia. Preparation of Thematic Hearing. Washington,
D.C.: Inter-American Commission on Human Rights, 2012. Document.
6 "Universal Declaration of Human Rights." UN General Assembly, 10 December
1948. Document. Article 11, Page 3
7 "International Covenant on Civil and Political Rights." United Nations General
Assembly. New York: United Nations Human Rights Office of the High Commissioner,
16 December 1966. Document. Page 6
8 Youth for Human Rights. United Nations Universal Declaration of Human Rights:
What are Human Rights? n.d. Web Page. 8 March 2016.
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social programs as a result of a lack of funds. Legal aid is often the only way for the poor to
receive legal counsel, so underdeveloped systems leave the poor unassisted in court.
The next step in the process of justice is sentencing and detention. Receiving a sentence
that is appropriate for the crime and the specific criminal is critical. The people of both the
developing world and the developed world face unjust incarceration to varying degrees. There is
no international standard for sentencing, so a nations sentencing philosophy is based completely
on the political climate. In more conservative nations, criminals may face harsh sentences in an
effort to crack down on crime or they may face jail time for non-violent crime. In especially
broken justice systems, pre-trial detention is a major issue. The police may abuse their power to
detain people awaiting a trial for years. This injustice is not uncommon. In fact, in a typical year,
there is an estimated ten million people worldwide facing pre-trial detainment.10 The poor may
also be thrown in jail with little to no evidence, for being at the wrong place at the wrong time, or
for being unable to pay a bribe. Fair detainment and sentencing philosophies are cornerstones of
equitable justice systems.
Justice systems, to be truly just, must also guarantee that damages are paid to victims of
crime. Collecting damages can be difficult when the perpetrator of the crime is destitute
themselves, or in cases of property theft, if it is difficult to prove that the land legally belonged to
the owner. This issue is very complicated, and the ways of tackling the issue vary from country
to country. In countries with more developed social programs, there may be a public
compensation program in which the state will pay the damages or a portion of them when the
perpetrator is not able to. However, these social programs often have limited funding or may be
nonexistent. Compensation is often difficult to get, which can be devastating to someone who
has suffered a great loss.

16 December 1966. Document. Article 14.1d Page 9
10 Birk, Moritz, et al. Pretrial Detention and Torture:. New York City: Open Society
Foundations, 2011. Document. Page 21
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It is not difficult to see the shortcomings of the justice system, but the effects of these
shortcomings on the poor are not as simple. All of these failures of the system adversely affect
the poor, and much more than the upper or middle class. Without a safety net of money, the
poor can find themselves in a much worse position financially after an encounter with the justice
system, being the victim or the perpetrator of a crime.
The poor are specifically targeted in the inadequacies of law enforcement. When the law
enforcement system fails, the poor become an easy victim. Not only are the poor likely to be
arrested with little or no proof,11 but they do not have the luxury of power that the rich have to
bribe police to do their bidding. The poor therefore will not receive justice or compensation for
the crime against them, while the rich have the money to influence an investigation in their
favour whether they are the victim or the perpetrator. Additionally, if the police force is
ineffective, those who are wealthy enough to do so will hire private security to protect
themselves and their property from crime. Even in societies with little to no corruption in the
police force, insufficient funding to police services results in a lack of enforcement that is not an
issue for the rich because they can hire private security, while that is not an option for the poor.
The private security industry is enormous in Africa; for example, in South Africa, there are
nearly 400,000 registered active security guards, which is more than the police force and the
army combined.12 Though this may provide the rich with adequate policing, the poor have no
protection other than the public police force, which is often not of any help to them. Therefore,
the poor become an easy target for violence because they unlike the rich - are unprotected.
Unnecessarily strict sentencing and detainment policies overwhelmingly target the
working poor more than any other group. To the working poor (who are defined as people who
spend 27 weeks or more in a year in the labor force either working or looking for work but
whose incomes fall below the poverty level13), being able and available to work is absolutely
essential. The working poor typically work for hourly wages at entry-level jobs where employees
are only paid for the hours they work. Spending time in jail means that the detainee is not able to
11 International Justice Mission. Police Abuse of Power. 20 February 2016. Web
Page. 10 March 2016.
12 Eastwood, Victoria. "Bigger than the army: South Africa's private security forces."
CNN 8 February 2013. Online Newspaper.
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collect income to provide for themselves or those relying on them. When faced with pretrial
detention, pleading guilty to a crime that they may or may not be guilty of committing in order to
be released with no further jail time becomes a favourable alternative to protecting their
innocence at the price of waiting for a trial, all the while not being able to work. If they choose to
plead guilty, it may then be difficult to find another job because of their criminal record.
Caucasians with criminal records are half as likely to be called back by an employer as those
without a criminal record.14 Detaining people before a trial is punishing them before theyve been
convicted of any crime. Mandatory minimum sentences and harsh jail sentences for non-violent
offenders who are unlikely to recommit also affects the poor more than the rich or middle class,
again because of a loss of potential work. There is no benefit to these policies because they
unfairly affect the poor and studies show that harsher sentences do not actually lower crime
rates.15 Harsh detainment policies target the poor by pushing them to accept convictions they do
not deserve and take away employable hours without good reason.
Proper funding to social programs in the justice system is what can make a significant
difference in the poors experience of the justice system. Legal aid systems, while required by
international law,16 do not have any international standards; the lack of international standards
allows the individual country to decide what type of cases must be covered by legal aid, how
many legal institutions have legal aid staff at hand, what income qualifies someone for legal aid,
or any other central principles of legal aid that affect its usefulness. When countries neglect the
13 UC Davis Centre for Poverty Research. Who are the working poor? Data from the
Bureau of Labor Statistics. 2015. Web Page. 7 March 2016.
<http://poverty.ucdavis.edu/faq/who-are-working-poor>.
14 Pager, Devah. "The Mark of a Criminal Record ." American Journal of Sociology
(2003): 937-975. Document. Page 955
15 Doob, Anthony N. and Cheryl Marie Webster. "Sentence Severity and Crime:
Accepting the Null Hypothesis ." Crime and Punishment (2003): 143-195. Document.
Page 143
16 December 1966. Document. Article 14.1d Page 9
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legal aid system, even the most destitute of citizens are denied access to legal aid. The rich are
not affected by these shortcomings because they are not the ones who need the social programs.
An article in the British Journal of Criminology says that: Competent legal representation has
been shown to be crucial for criminal case dispositions and obtaining favourable outcomes for
the defendant.17 These advantages of legal aid representation are out of reach for many
otherwise unable to hire a lawyer because of inadequate funding to legal aid programs.
Ensuring that victims are compensated for losses is important to the poor much more than the
rest of the population and it can be financially devastating to not receive what is owed. This issue
also relates to being able to work. For example, if someone is rendered disabled in a way that
prevents them from working due to physical attack, if they cant collect damages from the
attacker, the victim has lost income to no fault of their own. This is true no matter the class of the
victim, but the relative loss to the poor is much more significant than the loss to the rich.
Impoverished countries experience the lack of compensation in some ways that are different
from the developing world. In rural Africa, land grabbing, which is when the owners of land
are forced off of their property through means of intimidation or violence and their land is seized,
is a major issue for poor owners of land, especially widows. When this land is seized, there is
rarely even an investigation into the crime, let alone a conviction or compensation. Convictions
are especially uncommon because the vast majority of the poor in rural communities in Africa
have no formal record of ownership of the land they occupy. In fact, 90% of Sub-Saharan
Africans live and work on property without formal ownership.18 Land is often the only
significant asset to the poor in developing countries, and they depend on the income from crops
grown on the land or goods from the animals they keep on the land. The loss of land often means
destitution without any opportunity to collect income. The inability to collect compensation for
losses affects the poor much more than the rich, and unfortunately is all too common.
17 Miethe, Terance D. and Hong Lu. "Legal Representation and Criminal Processing
in China." The British Journal of Criminology (2002): 267-280. Document.
18 Haugen, Gary and Victor Boutros. The Locust Effect: Why the End of Poverty
Requires the End of Violence. New York: Oxford University Press, 2014. Non-Fiction
Book. Page 79
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The flaws in the justice system are numerous, covering the entirety of the system from
lawmaking to sentencing and compensation. The poor are systematically targeted in each part of
the justice system in both the developing and developed world, though the manifestation of the
discrimination is unique to the society. Poverty cannot be overcome without addressing the
shortcomings of the justice system and how they cultivate the oppression of the poor.
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Background
The poor being targeted in the justice system is by no means a new issue. Though justice
systems and legal assistance programs have progressed over time, the reality of discrimination
against the poor has existed since the early justice systems of colonial Europe from which many
justice systems have evolved.
The Europeans brought their legal systems to the colonies they developed in the
Americas as well as in Africa and Asia. North Americas legal system is modeled from the
British common law system, though other European powers like Spain and Portugal brought the
civil law system to their colonies.19 Common law (to be brief) determines a ruling based on the
precedent of the law, which is interpreted by an appointed Judge. The civil law system is more
precise and factual, and there are frequently updated legal codes that specify punishment
required for illegal acts. The way that the legal systems have developed since colonization is not
standard among all of the European colonies the comparison of todays justice systems in
North America to the justice systems in India reflect this very clearly. It is not only a difference
between civil and common law systems, but there are even significant differences between the
developments of legal systems originating from the same system. While North America enjoys
some of the most sophisticated justice systems in the world, Indian justice systems are often
lacking in standards of policing, defense for the poor, and accessibility to the general public, but
they both have deep roots in British colonialism.
In his book The Locust Effect, Gary Haugen suggests that the weak justice systems in poor
nations that have been colonized are the result of a system that was never meant to protect the
common people from violence.20 The justice systems brought by colonial Britain to India were
meant to protect the colonial rulers from the common people, whereas North American
settlements were comprised of nearly all Europeans that were not seen as a danger. Since the
colonial days, the system has not undergone the radical reform that is necessary to build a fair
19 University of California, Berkeley, School of Law. The Common Law and Civil Law
Traditions. Berkeley, California, 9 March 2011. Online Article.
Book. Page 174
system. This is evident in the way that the system still caters to the rich while ignoring the needs
of the poor. The rich colonial leaders built a system that would give them favour over the poor
indigenous peoples because they could target them without punishment. This also explains why
so many African courts are conducted in official languages that the average lower-class citizen
does not speak.21 These conventions were put in place by the colonial leaders and were never
changed to be fair to all.
Though justice systems in impoverished countries have undergone very few changes and
transformations, North American justice systems are constantly evolving to be more fair and
inclusive. The legal aid system is an integral part of justice, and Canada does have relatively
sophisticated legal aid. Early forms of legal aid have existed in Canada since the 1950s, which
was initially on a volunteer basis in Ontario, and since then has become a system funded in part
by the federal government and in part by the provincial government that provides legal clinics
and family law, refugee law, mental health law, and Aboriginal law services.22 Legal aid has
faced budgetary restraints since the 90s, but it is still offered in a variety of cases to the poor all
over the country.
Vagrancy laws in particular have a long, unfortunate history of targeting the poor. Vagrancy laws
were originally made in the English Law of Settlement in which migrants were always
considered criminals and only those physically unable to work were legally allowed to beg, with
the assumption that a portion of that money would be given in tithes to the church.23 Those able
to work were required to collect alms from the local parish (in which case some return to the
church was expected, in the form of tithes or labour), find work, or starve. These laws, much like
in India, were brought by the British, and not changed for quite some time even though they
were based on social conventions no longer accepted. In this case, however, vagrancy laws that
Book. Page 171
22 Legal Aid Ontario. Legal Aid Ontario Historical Overview. 21 November 2009.
23 Lisle, John. "Vagrancy Law; Its Faults and Their Remedy." Journal of the American
Institute of Criminal Law and Criminology (1914): 498-513. Journal. Page 499
target the poor are being starting to be opposed in Canada and the United States,24 and progress is
in the foreseeable future.
Attaining justice has always been more difficult for the poor, and the causes can often be traced
back to colonialism. The poor have been marginalized in the justice system throughout history,
and for many nations the end of discrimination will only come with extraordinary effort. In
development, the past must be considered and learned from, but with the future in mind.
24 Ades, Paul. "The Unconstitutionality of Antihomeless Laws: Ordinances

Prohibiting Sleeping in Outdoor Public Areas as a Violation of the Right to Travel."
California Law Review (1989): 595-628. Journal.
Expert
Gary Haugen is a human rights lawyer, an authour, the founder and president of the NGO
International Justice Mission (IJM), and most of all a champion of repairing international justice
systems. He earned a B.A. in Social Studies from Harvard University in 1985 and a J.D. from the
University of Chicago.25 Though I was denied an interview with Gary Haugen, his book, The
Locust Effect, gives a thorough account of how he sees the issue and how it is being dealt with.
Before founding IJM, Gary Haugen worked as a human rights attorney for the U.S.
Department of Justice, where he focused on crimes of police misconduct. His field work in
Rwanda following the genocide was pivotal in his career in international justice system
development. Mr. Haugen was the director of the United Nations Special Investigations Unit in
Rwanda immediately following the 1994 Rwandan genocide. Gary Haugens role was to compile
a gross account of what had taken place and to gather evidence against the leaders of the
genocide.26 It was during his work in Rwanda that he came to realize that the poor need much
more than clean water, education, or doctors. First and foremost, they needed protection from
violence.
Gary Haugens research and work with International Justice Mission is incredibly eye-opening
and thought-provoking. Through IJM, Gary Haugen visits impoverished nations facing severe
everyday violence. This term refers not to the violence of war or genocide, but common
violence that can happen at any given time like rape, murder, theft, and assault. In these
countries, Gary Haugen and his team represent poor clients in court pro bono, train law
enforcement, and work with local government and human rights agencies to determine the course
of action or repairing the justice system. Mr. Haugen rarely represents clients himself, but hires
local lawyers to represent the poor.27 This is practical for a couple reasons: the local lawyers are
25 International Justice Mission. Our Leadership. 20 February 2016. Web Page. 10
March 2016.
Book. Page ix
27 Ibid., Page 242
more familiar with their communitys legal system and lawyers may not be qualified to practice
law outside of where they took their examinations, so North Americans cannot typically help in
that way.
Gary Haugens analysis of the problem of poverty is essentially that the poor cant escape their
poverty or access the aid they need without addressing the failing justice system. There are so
many factors as to why the system is failing and how that affects the people of the nation. The
central problem that he identifies is everyday violence, which is perpetuated by corrupt and
inadequate policing.28 This problem is very pervasive, and affects the daily life of millions in
poverty. The threat of violence, according to Gary Haugen, is what paralyses the poor in a state
of need. In his book, The Locust Effect, Gary Haugen recounts several case studies of victims of
violence in the developing world, one of which being the story of a young girl who was unable to
access schooling not because there wasnt a local school, but because she was assaulted and
raped by a stranger on her way to school. The threat of rape is too significant for her to
physically get to school. This is not to mention that schools themselves are not safe from sexual
violence.29 Violence prevents access to the aid that the developing world needs, and any aid we
send cannot have any lasting effect until everyday violence is eradicated.
Gary Haugens analysis of the problem of poverty in developing nations gives a radically
different perspective on how to approach poverty. What I appreciate most about his work is that
it doesnt just attack the method of aid, but also the root cause of the problem. His work first
sought to understand why problems like the lack of access to proper schooling and clean water
existed. It became obvious to Gary Haugen that there is only access to aid if the recipients of the
aid feel safe to leave their house, but that basic security is missing. Gary Haugen is tackling the
problem of poverty at the source, and that is the only way to make a sustainable difference.
Gary Haugens work in human rights is top-notch, and I truly believe that his
organization will make all the difference in the fight against poverty. His research methods and
dedication to giving the poor justice is commendable. Gary Haugen has shown the world a side
28 Ibid., Page 135
29 Ibid., Page 32
to poverty that was hidden from the developed world for too long, and I believe his contributions
will change the way that the world sees the issue.
Role of Control
Justice systems are, by nature, governed and controlled by those deemed trusted and
capable to enforce justice. This power is split among two branches of the justice system: law
enforcement and the court. In an ideal society, the control is in the hands of the government to
write fair laws that protect the people and to fund justice systems, the police force to enforce the
laws as theyre written, and the court to fairly assess the guilt of the accused. However, there is
another party that is as in need of power as the rest, but is too often denied it; the people need to
have the power to be informed and defend themselves. This power is granted to the rich, but the
average citizen remains disadvantaged.
The issue of the division of power is different depending on the nation, their governance,
and the state of their justice systems. In hybrid regimes (governing systems in which elections
may take place, but civil liberties are limited and the people have very little power) with
underdeveloped justice systems like Kenya, the government and the law enforcement have the
power that they need, while the court and the people do not have the power that they need.
The government of a nation, no matter its location on the political spectrum, has control
of the laws of their country, though the failures of the system rarely come from unjust laws.
Where the government goes wrong and misuses their control is the distribution of funds. How
the government funds are dispersed is up to the government, though in more democratic nations
the people have the power to elect leaders that represent their interests and will spend money in
the ways that the people want. However, according to The Economist Intelligence Units
Democracy Index, Slightly less than one-half (48.4%) of the worlds population lives in a
democracy of some sort, although only 8.9% reside in full democracies.30 Half of the world is
therefore living under non-democratic regimes. In authoritarian regimes and hybrid regimes, the
power is mostly or completely in the hands of the government, meaning the government has
more control over how money is spent. Authoritarian regimes are mostly located in Africa, the
Middle East and the countries of Eastern Europe in the Commonwealth of Independent States.31
30 The Economist Intelligence Unit. Democracy Index 2015. Research Report. New
York: The Economist Intelligence Unit, 2015. Document. Page 2
In democratic nations, the government has the same power to make decisions about
where money is spent, but only in the most technical sense. The beauty of democracy is that the
people decide what they want for their own country based on who they elect to lead it. However,
democracy also a major impediment to the decision-making of the government. The government
really only has the power to do what the people ask of them. For example, a leader that is
democratically elected can do their best to invest money in social programs like legal aid, but
this often means cutting in another area of spending or raising taxes. If the people resist taxation,
the government can face harsh opposition by both the people and other politicians, and the leader
will likely not get their policies approved, nor will they keep their position come the next
election. The political climate of a nations people is much more powerful than the governments
best intentions. In this sense, the people have a lot of control to drive the government. This
indirectly gives the people power, but they are not necessarily any better informed about the
justice system because of this power, and having the control of understanding the justice system
is a very important part of control.
How the government exercises its power, to whatever extent it can, is the issue. Poor
governments in nations with small economies tend to give very little to the justice system (in this
case the justice system refers to legal aid, prosecution, the judiciary, and courts), specifically
legal aid. For example, a survey report by the United Nations Office on Drugs and Crime
reported that in 2009, Ghana spent $360,000 USD on legal aid, which amounts to only $0.03
USD per capita.32 This problem is not unique to Ghana. Meagre government spending means that
the system is too underfunded to be of any use, and this can also happen in law enforcement, the
court, and other government-funded institutions. The government has the power to make these
decisions about where money is invested, and all too often the money they have access to, given
as aid intended for the countrys development, goes directly to corrupt government officials. In
2002, the African Union estimated that $150 billion USD given to Africa as aid was
31 The Economist Intelligence Unit. Democracy Index 2015. Research Report. New
York: The Economist Intelligence Unit, 2015. Document. Page 2
32 Paralegal Advisory Service Institute. Access to Legal Aid in Criminal Justice
Systems in Africa. Survey Report. New York: United Nations Office on Drugs and
Crime at Vienna, 20011. Document. Pages 18, 19
inadvertently fueling graft.33 It is the responsibility of the government to provide services to its
people, but that responsibility is often neglected and the people of the nation are not actually
benefited.
The law enforcement also has a fair amount of power, as it should. The law enforcement
is responsible for investigating crimes, maintaining order, and sending perpetrators of crime to
court, so the power to do their job of protecting the people is essential. The amount of power that
the police have and how it is typically exercised is affected by the amount of government
funding they get. Underfunded law enforcement results in low pay to police officers and not
enough officers in the field. Kenyan law enforcement cited low pay and incentives to police
officers as the issue that most affected their performance in 2013.34 Though underpaid police
officers have the power they need, they are prone to underperformance, and may take bribes.
Additionally, the polices power is limited when there are not enough officers in the field.
Limiting the polices field presence sacrifices their ability to catch criminals, investigate
thoroughly, and protect the people. This happens in both the developed world and the developing
world. Many counties in the United States have undergone significant budget cuts recently,
forcing counties to lay off a large percent their officers. In Josephine County, Oregon, United
States, 65% of the staff had to be laid off in 2012 due to severe budget cuts.35 The police only
have the power they need to protect the people when they are given adequate funding.
The court, similar to law enforcement, often finds it difficult to get the power it needs
because it is dependent on the government and the other branches of the justice system. The
government or other branches of the justice systems abuse or misuse their power results in the
court being unable to exercise power as it should. When the government gives inadequate
funding to the courts, understaffing and limited resources can make the system ineffective. When
33 Moyo, Dambisa. "Why Foreign Aid is Hurting Africa." Wall Street Journal 21 March
2009. Online Newspaper.
34 The Independent Policing Oversight Authority. Baseline Survey on Policing
Standards and Gaps in Kenya. Survey Report. Nairobi: The Independent Policing
Oversight Authority, 2013. Document. Page 12
35 Hastings, Deborah. Cash-strapped law enforcement agencies in Oregon stop
answering calls, sending officers. New York City, 23 May 2013. Online Newspaper.
the law enforcement takes bribes to cover up crimes, the court does not have the power to
determine if the accused is guilty and how they should be punished. Another parallel to the law
enforcement is that when the court is underfunded, misconduct and abuse of power in the court
becomes a problem.
The other party that has a significant amount of power is the rich. Whether in an
impoverished country or a wealthy country, the rich have much more power than the average
citizen. Most importantly, their money allows them to hire lawyers to represent them in court.
While legal aid systems exist in varying capacities around the world, they cannot be depended in
most scenarios simply because of a lack of funding. The UN Office on Drugs and Crime reported
that in African countries, Access to legal aid at all stages of the criminal justice system is
generally unavailable.36 Not only do the rich have more power in court, but they have enough
money to bribe the authorities to gain them favour. In countries where law enforcement and the
courts are known to be corrupt, the rich hold an incredible amount of power. The International
Development Research Center reports judges in Kenya openly ruling in favour of the highest
bidder.37 Even appearing at court is easier for the rich; with very few courthouses in some rural
areas of Africa, traveling to the nearest courthouse is too expensive for many people.38 All over
the world, having money means having a lot of power in the justice system, and a lack of money
makes a person very disadvantaged.
The government and the law enforcement, for the most part, have the power they need,
but they abuse their power in a way that affects the people. The court and the poor, in most
instances, do not have the control that they need. The ability of the court to have control is
dependent on the other parties using their control effectively, and the poor are victims to the
shortcomings of the other parties. When the government, the law enforcement, or the courts
Systems in Africa. Survey Report. Vienna: United Nations Office on Drugs and Crime
at Vienna, 2011. Document. Page viii
37 International Development Research Center. Rehabilitating Kenya's Judicial
System. 24 October 2006. Web Page. 10 March 2016.
38 Obel Hanson, Thomas. "Access to Justice and Legal Aid in East Africa."
Government-funded study. 2011. Document. Page 29
misuse power, the poor are the ones that suffer. The rich, having money, have some
independence and power of their own that the poor simply cannot have.
These inequalities and the misplaced control should matter to those who are able to make
a difference. Thankfully, there are some that are making an active effort to change the system and
reversing inequities. This is mostly thanks to the efforts of NGOs. Organizations like
International Justice Mission have been working hard to bring equality by changing the system
from the inside with the help of local lawyers and advocates. The NGOs are not the only ones
who should be making a difference, though. The onus is on the parties that currently have control
to fix the system they have created. It is the governments responsibility to support the nation
with funding to the programs that the people need. That may require foreign aid depending on
the state of their economy, but the commitment to helping the people first and foremost through
whatever means necessary is key. The governments power is also a responsibility to fix
inequality where it can. The police and the court, being in a position of control, have the same
responsibility to act for the people by staying true to their respective duties. The government and
its institutions are obligated to exercise their power in a way that benefits the people and allows
for positive development.
The rich have a responsibility not only to their home nations, but to the nations of the
world as well. North Americans are a very privileged people, and we have an opportunity to use
our resources and skills to further develop nations in need of help. As citizens of the developed
world, we should care about the abuse of power and use our influence to make a positive change.
For some, like lawyers and policy-makers, their part may be more practical, but we all have a
duty to fulfill.
The Logic of Evil

It can be easy to demonize those seen as abusing their control of the system without realizing the
very rational explanations as to why they do. This concept is especially relevant to the issue of
flaws in the justice system and their effect on poverty. People rarely do wrong against their
fellow man without strong incentives to do so. People in power do not target their people for
spite; there is always someone who stands to gain, and sometimes it may be the people
themselves. Misjudgements happen, and policies that are meant to help the people backfire. But
behind all this there is a reason a logic to their actions that is not always obvious.
The biggest incentive to do wrong against the people in this scenario, as in many, is
money. To be plain, justice systems cost money, and that is one thing that the countries with
some of the worst justice systems do not have. Funding salaries for employees, infrastructure to
bring courts closer to more people, training, and countless other aspects of the system requires a
significant amount of capital. Impoverished countries, even if corruption in the government was
nonexistent, may not be able to support sophisticated justice systems as it stands today. For
example, the GDP per capita of Madagascar was $ 352.73 USD in 2015, and Burundis was just
$315.20 USD.39 Economies this small do not give the government much room to do what the
people want, or even need.
The government of poor countries may also be under the influence of the International
Monetary Fund, which may limit their ability to provide social programs for the people. The IMF
is an international organization that works to promote financial stability by means of surveillance
of economic and financial development, loans to low-income nations with the purpose of
reducing poverty, and technical assistance and training in its areas of expertise.40 While their
loans to low-income countries are beneficial in building a financially-sustainable model for
government spending, they also have strict control over how their loans are spent. A journal
article on IMF programs and government spending said this about the IMFs policies:
39 International Monetary Fund. Report for Selected Countries and Subjects - GDP
per Capita. 2015. Website. 6 March 2016.
40 International Monetary fund. What the IMF Does. 1 October 2002. Website. 6
March 2016.
Fiscal reforms recommended by the IMF are wide-ranging but principally emphasize the
rationalization of tax policy, reductions in government expenditure, and the reform of
public enterprises and pricing policies Governments can eliminate deficits by cutting
expenditures and/or raising revenues. Revenues are harder to increase since many
developing countries lack the necessary extractive capacity and raising taxes is often
viewed as distortionary [it will have negative effects on the economy that counteract the
benefits of collecting taxes]. Therefore, governments seeking to reduce deficits are more
likely to emphasize cutting spending by decreasing subsidies, public-enterprise deficits,
public employment, public-sector wages, and government expenditures on
investments.41
Governments under the influence of the International Monetary Fund often face cuts to
government subsidies, social programs, public employment, and investments, and not necessarily
of their own volition. These countries do not have the power to govern their own spending, and
therefore cannot be wholly blamed for the lack of social support to the people.
Politics and the best interests of the people are also sometimes to blame for policies that
adversely affect the people. Namely, the cash bail system (in which the price of bail must be paid
upfront), mandatory minimum sentences, and the three-strike law in the United States. All of
those policies were a result of the tough on crime movement in the United States endorsed by
former president Richard Nixon in the early 70s. The idea is that stricter punishment will reduce
the crime rate and make the country a safer place. Unfortunately, research has proven that the
ideology that tough sentences are a significant deterrent to crime is not actually accurate.42 At the
time, however, this conservative ideology resonated with the people of the United States, and
what was intended to be a positive change for the nation became a negative one.
41 Simmons, Joel W. and Irfan Nooruddin. "The Politics of Hard Choices: IMF
Programs and Government Spending." International Organization Foundation
(2006): 1001-1033. Document. Page 1003
42 Doob, Anthony N. and Cheryl Marie Webster. "Sentence Severity and Crime:
Accepting the Null Hypothesis." Crime and Punishment (2003): 143-195. Document.
Page 143
Even the most harshly blamed groups, the corrupt people in a position of control, have reasons
for the wrong they inflict on the people. Though inexcusable, corruption is a symptom of a
deeper problem. In the case of corrupt police in Kenya, the deeper problem is inadequate pay.
The police alone are not to blame for their own corruption; those whose job it is to support them
are not doing their job by paying them less than their work is worth. There is a direct correlation
between performance and good pay and incentives.43 If the source of the problem is not
addressed, the symptoms will prevail.
Though some may argue that the negative consequences of policies in the justice system
that target the poor have no positive aspects to them, that is very arguable. An example of a
policy that affects the poor disproportionately is the cash bail system, which exists in the United
States. In short, the necessity to have a sum of money decided by the court in order to avoid jail
until a trial puts the poor in a difficult position, since it can be difficult to collect the money
necessary. However, this version of bail is a way for the government to collect revenue without
raising the taxes, as the government has a hard time getting support for raising taxes. The money
collected by the government in the bail system that hurts the poor gives the government more
resources to help the poor in other ways. There is a reason for most every government policy
(that reason is often financial), whether or not it is deemed unfair or distortionary by the people.
The interests of the people themselves can often be contradictory to their needs, which will make
people support policies that will have a negative impact on their life. For example, there are
many poor people in capitalist countries that could greatly benefit from social programs like
legal aid or welfare, but personal anti-socialist political views may compel them to support lower
taxes and less government assistance. These people may simply not believe that the social
programs will help them. With a political climate that is deeply capitalist, the nations people
may reject programs that can help them, all in the name of private enterprise. These people may
seem foolish to reject help, but there are some real benefits to the capitalist ideology, and no
ideology is without flaws and drawbacks. Others may disagree with the ideology, but that does
not render it illegitimate, and the people that support it are not being intentionally cruel to those
Oversight Authority, 2013. Document. Page 12
that can be benefited from social assistance. When the people oppose the socialist agenda, there
is not much that a democratic government can do to put socialist policies in place.
The media may be blamed to some extent for the publics lack of support for
organizations that fix justice systems as a way to end poverty. The world today is increasingly
aware of the problems the developing world faces, which is excellent, and the media has had a
huge role in making that happen. This has led to the founding of many charities that strive to end
poverty, which is a terrific goal to have. However, these different charities seem to have many
different ideas about how to bring about the end of poverty. According to some, poverty will
remain until everyone has access to education. Others believe that access to medicine is the
answer to the problem of poverty. This report is intended to prove that flawed justice systems are
to blame for the overwhelming poverty. To the uninformed individual with a desire to end
poverty, the sheer number of different views on how poverty should be eradicated can be
confusing. People that support a charity that handles poverty in way that may be less effective
cannot be condemned for a lack of care or good intentions. The media has allowed so many
different charities to spread their message that it can be difficult for people to know what to
support.
The perpetrators of wrong, which may be the government, the corrupt government, or the
people themselves, typically do not have cruel intentions. While they may be incorrect, logical
explanations exist in nearly every case of wrongdoing, especially in the targeting of the poor in
the justice system.
Case Study 1: Kenya

The Republic of Kenya, a thoroughly impoverished nation in Sub-Saharan Africa, serves
as an example of a nation with a fundamentally broken justice system. With a population of over
45 million people, the limited government resources are sparsely distributed. Under the weight of
over $16 billion USD of external debt44 and a weak economy, the nations ability to provide its
people with the most basic of services is very poor. Kenya, for many years, has had a famously
incompetent government that does little to help its people. This reputation extends to the
underfunded, inept justice system. Justice is treated almost as a commodity that can be purchased
by those more fortunate through bribery and denied to those unable to pay. Through the lack of
integrity in law enforcement, arbitrary detention, and the lack of social programs to help the
poor, the poor are systematically discriminated against with no one to defend their interests.
First of all, Kenya has a police force widely known for being very corrupt and
incompetent. In a study of over 5,000 households in Kenya, one-third of respondents reported
that they had personally experienced police misconduct within one year of the survey
(misconduct included assault/brutality, falsification of evidence, bribery, and threat of
imprisonment).45 The very poor rate of the polices compliance with rules and regulations
coupled with infrequent complaints and/or investigations into misconduct cultivate a system
where justice is not often served and there is no punishment for those who abuse their power.
The police system is so fundamentally flawed that there is no fairness or equity in law
enforcement.
This report carried out an in-depth analysis of the misconduct in the Kenyan police
department, and it identified several major problems in the force. The report focused mostly on
compliance with rules and regulations, specifically when charging a person with a crime. It was
found that of the felony cases reviewed, 64% of cases did not reach the evidentiary standard for
44 World Bank. External debt stocks, total (DOD, current US$). 21 April 2015. Web
Page. 3 May 2016.
Oversight Authority, 2013. Document., Pg. 7
charging.46 The evidentiary standard for charging is the amount of evidence that there must be
against a person in order to charge them of a crime, which in Kenya is defined as a reasonable
likelihood of conviction.47 Being arrested with little to no proof is a serious concern for the
people of Kenya because the polices standards and expectations are so lenient.
Perhaps one of the most pervasive problems in Kenya today is the threat of sexual
violence, specifically against young women. Even washrooms are not always a safe place for a
young woman. In Nairobi, 75% of slums do not have their own toilets, so hundreds of thousands
of young people must walk hundreds of yards to get to unsanitary, hardly private, communal
bathrooms.48 These unpoliced washrooms become a hotspot for sexual violence. Even a young
womans walk to school is dangerous because of predators waiting to seize children on their way
to school. Because of this, schools cannot be as effective at relieving girls from poverty as
studies have shown they could be. For young women in Kenya, even where schooling is
available to them, the journey to school poses the threat of violence that keeps them from
accessing education that could help them enormously.
Ultimately, one must ask why it is such a pervasive problem. What flaw in the system
allows rapists to roam free? In Kenya, the flaw is as simple as getting medical examinations
done. Physical evidence from a medical examination is extremely important to make a
conviction in a case of sexual violence, but getting a medical examination is very difficult. In
Nairobi, even a medical examination by a qualified doctor is not enough to be used in court. This
is because all the police in the city insist that medical evidence in any case of sexual assault be
collected by the police doctor, and there is only one police doctor on the force.49 Otherwise, the
police will not present the evidence in court or provide it to the prosecutors. This creates a
46 Ibid., Pg. 22
47 Ibid., Pg. 22
Book., Pg. 32
49 Ibid., Pg. 34
massive backlog in the system, because Nairobi is a city of about 3 million people where one can
expect about 150,000 victims of rape in one year.50 Because of the high demand, it can take
months for a victim to see the police doctor, when a physical examination in a case of rape must
take place no later than 48 hours after the attack. When the doctor is able to see a patient, he
often has no more than ten minutes per patient. Without the physical evidence, the chances of the
perpetrator getting convicted are slim to none. The most astounding part of this is that no one
knows why the system works this way. The NGO International Justice Mission tried to
investigate this, but after a year of lawyers in Nairobi investigating and finding that Kenyan case
law is contrary to this practice, it was still unclear as to why and how it had become an accepted
practice.51 Some speculate that it is to limit the caseload (as courts are already very busy) or to
cut down the amount of work the police must do to help a case. The law cannot be put into
practice if the law enforcement alters the system works to suit their interests.
The police in Kenya have also been known to detain people in jail prematurely and for
longer than is officially allowed. Pretrial detention is an issue globally, but it manifests itself
differently in certain parts of the world. In Kenya, like many developing countries, while the rate
of pretrial detention is typically lower than that of developed countries, the duration of pretrial
detainment is typically longer.52 In most developing countries, this means that the majority of
prisoners are pretrial detainees. This is one of the marks of an inefficient, overwhelmed justice
system and a lack of commitment to the rule of law. One of the circumstances in which pretrial
detainment has shown itself to be an issue in Kenya is in the way that people accused of felonies
are handled. In the Kenyan constitution, it clearly states that: persons held in custody must be
brought before the court within 24 hours or on the next court day if the deadline falls on a
50 UN Women. Violence Against Women Prevalence Data: Surveys by Country.
Survey Report. New York: United Nations Entity for Gender Equality and the
Empowerment of Women, 2012. Document.
Book., Pg. 36
Foundations, 2011. Document. Pg. 22
holiday or weekend.53 However, the report on police malpractice found that of the felony cases
investigated in the survey, only 27% complied with the 24-hour rule.54 This means that 73% of
people charged of a felony were held for longer than 24 hours prior to appearing in court. This
defiance to the rule of law is unacceptable.
Kenya also has particular issues in coming to a fair conviction in court. Not only has
severe corruption in the court come to light, but their low rate of convictions in felony cases
show the inefficiency of the system. The judiciary is considered one of the worst offenders in the
Kenyan government as far as corruption and general malpractice. It has been reported that some
judges ruled in favour of the highest bidder, a lack of court reporting lead to conflicting
decisions, and litigants were purposely misinformed about court dates, causing them to miss their
court appearances.55 In the severely busy and backlogged Kenyan courts, misleading people so
that they miss their court appearance is the easiest way to cut down the workload to a
manageable amount. Malpractice has also reared its head in the low conviction rate of
individuals accused of felonies. The report on malpractice in Kenyan law enforcement revealed a
concerning statistic: The case file review showed a conviction rate of 25% of all the felony case
files reviewed. This means that only one in every four cases ends in a conviction.56 One can
draw from this statistic that either the quality of investigations is very poor and cannot stand up
in court, or the police are unable to determine which cases are suitable for prosecution, either
option being extremely concerning. Perhaps more concerning, though, is the fact that of the cases
reviewed in the survey that ended in a conviction, 60% did not meet the evidentiary standard for

54 Ibid., Pg. 9
55 International Development Research Center. Rehabilitating Kenya's Judicial
System. 24 October 2006. Web Page. 10 March 2016.
charging a person with a crime.57 Therefore, of the 50 cases reviewed that ended in a conviction,
at least 30 may have been wrongful convictions of people that should not have gone to court in
the first place. The trickle-down effect of malpractice is made very clear in law enforcement and
the judiciary. When corrupt police charge people without enough evidence because of corruption,
it cultivates an environment ripe for corruption in the judiciary. The polices laziness translates to
court officials taking bribes and misinforming litigants to mitigate the overwhelming caseload.
While investing in the judicial system may allow for more thorough trials and correct
convictions, the system is not fixed until the cases handed to the court by the police are
legitimate and have met standard for the amount of evidence needed.
A major challenge for the people of Kenya is the availability of lawyers. While there may
be legal assistance programs technically in place, the very small number of lawyers means that
the chances of getting one are extremely low. In Kenya, as of 2011 there were 3,817 lawyers in
Kenya to represent all of its population of 39 million people.58 This is one lawyer per 10,000
people. Whether public defenders or private lawyers, they cannot keep up with the demand and
the accused are forced to appear in court unrepresented. As well, most lawyers reside and
practice law in urban centers, whereas the majority of the population, specifically the poor, reside
in rural communities. For reasons mostly out of the control of the people, having a lawyer to
represent them in court is simply impossible.
The problem of having too few lawyers for the population is especially relevant in the
legal aid system. Kenyas legal aid system is essentially nonexistent, and this can be partially
attributed to the very small number of lawyers. As in any country, not every lawyer will be
willing to work in legal aid, either, so the ratio of public defenders to people needing public
defenders is even lower than one to 10,000. In Africa, the main challenges faced in legal aid
systems are the lack of human resources and erratic funding.59 At its best, the funding for legal
aid is nowhere near sufficient to meet the needs of the people, especially because there are so
many people in need in impoverished countries like Kenya. The people have recognised this
57 Ibid., Pg. 30
Crime at Vienna, 2011. Document., Pg. 12
issue, and the result is that even those that would be eligible rarely do apply for legal aid because
the process of applying is so difficult.60 Kenyas legal aid system is very near nonexistent, and it
does not have the means to do that work it was designed to do.
There are certain crimes that have become a major problem in Kenya that the law
enforcement has turned a blind eye to. Land grabbing, which is when land is illegally and
forcibly seized, is a problem very close to home for many elderly Kenyan women. There have
been many reports of older women, often grandmothers or widows caring for children, being
assaulted and forced out of their home by young men. A problem so foreign to the developed
world may be hard to completely comprehend. In the developed world, when forced out of ones
home unlawfully, one would contact the authorities and present their proof of ownership of the
land. In Kenya, however, the solution is not so simple. The authorities may have no incentive to
even investigate without receiving a bribe, which the poor cannot provide. Even when an
investigation happens, the victims may not have any hope of getting their property back because
so many of the poor living in slums do not have any official documentation proving ownership of
land. 90% of Sub-Saharan Africans live and work on property without formal documentation,61
so they dont actually have any claim to the land they call home. For the victims of these crimes,
their livelihood often depends on their land, as many rural Kenyans earn a living farming. Losing
their land means losing all of their assets as well as their means of earning an income. Kenyas
broken justice system allows impoverished families without a man to physically protect them to
be targeted without any punishment for the offenders.
The poor in Kenya undoubtedly fall victim to Kenyas broken justice systems
disproportionately in comparison to the rich. The reasons for this are fairly simple, revolving
around the idea that money controls the system. For the rich, a simple bribe allows them to steer
Crime at Vienna, 2011. Document., Pg. 13
60 Ibid., Pg. 20
Book. Page 79
the situation in their favour, whether it allows them to cover up a crime or simply have a matter
investigated. Of course, this is not an option for the poor. For the rich, bribes may prevent them
from being targeted by the police, but it does not protect them from the extreme violence that the
poor face. Private security is what can solve this problem for those that can afford it. The private
security industry is very prominent in Africa, and the rich hire private security to protect
themselves and their property as well as seeking alternate dispute resolution methods to avoid the
court.62 When the system becomes mostly privatized, justice becomes a commodity that the poor
cannot afford.
It is not shocking that the system is fundamentally broken when those with power have
abandoned the public justice system. The rich have no need for a functioning public justice
system, so the system sees no changes, as money and power backing a system is what determines
its effectiveness. Public law enforcement is far from a priority for the rich and powerful, so the
system gets meagre funding that supplies salaries to police officers hardly enough to raise a
family. A significant factor in the reasons for severe corruption in law enforcement is the low pay
to law enforcement. Members of local police in Kenya cited low pay and incentives as the factor
most directly linked to their performance.63 The public recognises this, and some have even
expressed that they do not fully blame the police for their corruption because they are so poorly
paid.64 With such an established system of corruption and private security, there is no reason or
means for the system to improve. Even when malpractice is identified in law enforcement, the
police themselves do not believe in the complaint system. 40% of police officers surveyed
expressed that they were not confident in the complaint system65 because they do not believe
62 Ibid., Pg. 188
Oversight Authority, 2013. Document. Pg. 10
64 Narayan, Deepa. Can Anyone Hear Us? The Voices of 47 Countries. Washington,
D.C.: World Bank, 1999. Document. Pg. 134
Oversight Authority, 2013. Document. Pg. 21
action would be taken. There is little point in trying to affect change in the system without
having money and power, and those with money and power are not asking for change.
The widespread corruption and malpractice in the justice system of Kenya cultivates an
environment where violence and crime thrive and the poor are easy targets. Corruption and
malpractice are so deeply ingrained in the Kenyan justice system that no one can count on any
legal action without paying a bribe. The poor need a powerful advocate to give them a voice, but
they are not finding one in Kenya because the powerful have no incentive to fix the justice
system. Kenyas justice system is in severe disrepair, and it will take significant action to reverse
the damage.
Case Study 2: The United States of America

Justice systems in the developed world, though not free of the significant flaws of the
developing worlds justice systems, have their own unique shortcomings that systematically
target the poor. The United States, located in North America with a population of 318.9 million
inhabitants, is developed in many ways, but it has a justice system in desperate need of reform.
Though the United States is a world leader on many fronts, they do not exemplify an equitable
justice system.
The issues with justice systems in the United States are mostly not related to breaking the
accepted policies and laws, but with the nature of the policies themselves. Some of these policies
include the cash bail system, mandatory minimum sentences, and vagrancy laws. These systems
target the poor discreetly by hiding behind a faade of justice. The change required to fix
American justice systems is especially complicated because it involves changing systems that
were put in place by the government with the intention to do good for the people.
In the United States, the issues in justice systems are in ways difficult to identify because
they are not the same across the nation. Systems like bail, mandatory minimum sentencing, and
vagrancy laws vary from state to state because the standards are set by the state independent of
the federal government. It is hard to generalize because of the disparities between states, but
even in more left-wing states, the system is not in good shape. For example, Minnesota regularly
elects leaders from the Democratic Party, and yet public defenders in Minnesota in 2010 had an
average of only 12 minutes per client to prepare a defense because of the extreme strain on the
legal aid system.66 Therefore, while all of the issues mentioned in this case study many not apply
to every state to the same extent, they are significant enough generally that they stand out.
The United States has a tendency of detaining people convicted of minor, non-violent
offences for much longer than is helpful or necessary, and this is how so many of the working
poor are targeted by the justice system. The working poor need to be able to physically appear at
their job, because the jobs that they hold are typically shiftwork, where they must be present to
earn a living. Being absent from work for extended periods of time often leads to termination
66 Giovanni, Thomas and Roopal Patel. Gideon at 50: Three Reforms to Revive the
Right to Counsel. New York: Brennan Center for Justice, 2013. Document., Pg. 4
from the job. Furthermore, finding another job after being convicted is difficult because of their
criminal record. The call-back rate for Caucasian males with criminal records is half that of
Caucasian males without criminal records for entry-level jobs.67 Essentially, a prison sentence
subjects the detainee to harsher poverty than they had faced upon entry to prison because it limits
their employability and availability to work. Mandatory minimum sentences and cash bail
policies contribute to the rapidly growing prison population.
Mandatory minimum laws require judges to sentence offenders of certain crimes with a
standard minimum sentence, no matter the context of the crime. They were introduced in the 80s
and 90s as part of the tough on crime movement, but since then they have been partially
responsible for a massive increase in prison populations. The number of prisoners in the United
States has more than quadrupled since 1980.68 Today, the United States has 5% of the worlds
population and 25% of its prisoners.69 Mandatory minimums often enforce prison sentences on
non-violent crimes, specifically in drug-related offences. For example, the mandatory minimum
sentence for possession of 400g of cocaine, heroin, or methamphetamine is 15 to 99 years and a
fine of not more than $250,000 in the United States,70 whereas possession of the same amount
warrants a mandatory minimum of only 1 year in Canada.71 Mandatory minimums are much too
harsh in many circumstances, and they need reform. President Barack Obama himself has
expressed a strong stance for reform of mandatory minimums on drug offences:
67 Pager, Devah. "The Mark of a Criminal Record." American Journal of Sociology
(2003): 937-975. Document. Page 955
68 The Sentencing Project. Trends in U.S. Corrections. Statistics Analysis Report.
Washington, D.C.: The Sentencing Project, 2015. Document., Pg. 1 (see Appendix,
Article 1 for chart)
70 Texas Criminal Defense Lawyers. Texas Drug Delivery Laws. 24 November 2009.
Web Page. 5 April 2016.
71 Public Prosecution Service of Canada. 6.2 Mandatory Minimum Penalties for
Particular Drug Offences under the Controlled Drugs and Substances Act. 1 March
2014. Web Page. 5 April 2016.
In far too many cases, the punishment simply does not fit the crime. If youre a lowlevel drug dealer, or you violate your parole, you owe some debt to society, you have to
be held accountable and make amends. But you dont owe 20 years. You dont owe a life
sentence. Thats disproportionate to the price that should be paid. And by the way, the
taxpayers are picking up the tab for that price.72
Mandatory minimum sentences in the United States, especially on drug crimes, are much too
harsh, which does no service to the country. Reform in mandatory minimum sentences is far past
due, and the American people are paying for it.
The United States has a bail system in which the price of bail is posted and the accused
must remain in jail until the price of bail is paid or until their court appearance. If the accused
follows the terms of bail and appears at their court date, their bail money is returned to them.
This system puts the poor in a very difficult position, because they must either face jail time until
they appear in court, try to collect enough money to pay bail upfront, or plead guilty in order to
be released immediately. As mentioned, the poor need to be available to work. The option of
waiting in jail for a court appearance in order to maintain their innocence does not give them the
opportunity to work. The second option, trying to gather enough money to pay bail, is not always
an option for the poor. It can be very difficult for low-income families to come up with thousands
of dollars, even with the promise of getting it back at the court appearance. Therefore, pleading
guilty to a crime that they may or may not be guilty of in order to get back to work is a common
choice, though it means that they have a criminal record. The American bail system is also a
major contributor to the high rates of pretrial detention. The United States has the highest pretrial
detention rate in the world, at 158 per 100,000.23.73 Those unable to pay bail and unwilling to
accept a wrongful conviction wait in jail for a trial, which is both unjust and economically
irresponsible of the nation, as they must pay for the costs of the detainee while in prison.
Requiring bail to be paid upfront pressures the poor to accept a conviction that they do not
72 Wolfgang, Ben. "Obama calls for overhaul of prison system, end of mandatory
minimum sentences." The Washington Times 14 July 2015. Online Newspaper.
Foundations, 2011. Document., Pg. 22
necessarily deserve because of financial pressure and results in holding thousands of citizens
unnecessarily.
The poor are also systematically targeted through vagrancy laws. Vagrancy laws are
regulations that criminalize homelessness by making panhandling, sleeping in public spaces, and
other actions associated with homelessness illegal. This blatant discrimination against the poor is
a serious problem in the United States, as municipalities across the United States are instituting
bylaws against vagrancy. St. Petersburg, Florida adopted and started vigorously enforcing an
ordinance in 1988 that prohibits sleeping in any public place.74 These ordinances do have
legitimate reasons behind them; usually they are the reaction to an increase of homeless people
on the streets, or sometimes incidences of violence by homeless people on the street. However,
criminalizing their poverty is not a legitimate solution, and its very inefficient. A poor man
panhandling on the street simply will not be able to pay a fine given to him. The impetus for the
homeless population to get off the streets will not be fines. They are in need of accessible
lodging, affordable medical and psychological aid, and social programs to assist in finding jobs.
Giving the homeless fines for doing the only thing that they can to survive is distortionary and
will not improve the situation. A few states have realized this and deemed vagrancy laws
unconstitutional, like the California Supreme Court in 1971.75 In the United States, vagrancy
laws have been struck down in certain states and municipalities, and increased in others.
Americas homeless population deserves equality and fairness in the law, which vagrancy laws
contradict.
The United States also faces serious limitations in its legal aid system. In the United
States, publicly funded attorneys (often called public defenders) must be made available to
offenders not able to pay for an attorney. Funding for these public defenders comes from the
state, which means that the conditions of the job vary from state to state depending on how much
funding they are given. However, 18 states have either partially or completely shifted the
74 Ades, Paul. "The Unconstitutionality of Antihomeless Laws: Ordinances

Prohibiting Sleeping in Outdoor Public Areas as a Violation of the Right to Travel."
California Law Review (1989): 595-628. Journal., Pg., 596
75 Ibid., Pg. 597
responsibility of funding public defenders to the counties,76 which has created unreliable and
varied funding within a state, and poorer counties are subject to inadequate legal assistance
because of the financial state of the county. The way that funds are collected in some states is
also very troubling. In Louisiana and at least 13 other states, public defenders are paid partially
by fees levied on their clients, 77 which creates a huge conflict of interest. In this circumstance,
the public defender benefits from a guilty conviction of their client. On a related note, the
Supreme Court has stated that 94% of state cases and 97% of federal cases reach a conviction
through plea deals rather than trials. The method of payment in several states alongside the
amount of plea deals makes one suspicious, at very least, that there may be a correlation between
the two.
The lack of proper funding has put a strain on the public defenders, forcing them to take
caseloads much higher than is recommended by the American Bar Association. The ABA
recommends that a lawyer take on a maximum of 150 felony cases or 400 misdemeanor cases
per year. Despite this recommendation, public defenders across the United States take an average
of 500 felony cases per year.78 Due to the extreme caseload, lawyers can only spend a few
minutes on each case. A report on the state of the public defender system in the United States
says, Minnesota defenders reported devoting an average of 12 minutes per case, not including
court time, in 2010.79 This is clearly not enough time to prepare a well-rounded defense, which
may contribute to the extremely high occurrence of plea bargaining. The poor of America,
though given lawyers to represent them in court, cannot depend on the system for fair
representation in court.
While many issues with legal aid could be solved by hiring more public defenders, that is
simply not an option because of budgetary restraints. There is rarely room in the budget to pay
77 Ibid., Pg. 4
78 Ibid., Pg. 5
79 Ibid., Pg. 4
public defenders adequately, let alone hire more public defenders. In fact, they constantly face
budget cuts because of funding that has dried up.80
The lack of funding for public defenders is not the only factor in the number of cases
public defenders must take on. The volume of petty offenders that go through the public defender
system is astronomical. The tough on crime movement in the 70s and 80s lead to the increase
in severity in the sentencing of minor and non-violent offences, especially drug-related offences.
The vast majority of minor drug offenders cannot afford a lawyer and therefore make use of the
public defender system.81 Cases like this put a strain on the system that could be easily prevented
by liberalizing sentencing on minor crimes. In most states, legal aid is only offered to offenders
that would likely face a jail sentence, so the public defenders caseload could be dramatically
reduced if the punishment for low-level drug crimes were fines or community service hours.
Legal aid, unsurprisingly, is not the only part of the justice system that regularly suffers
from budget cuts. The police force, like public defenders, get funding from either the county or
the state, which results in unevenly distributed budgets across a state. Counties struggling to
balance budgets have been forced to lay off emergency staff and limit their working hours. A
chilling example of this comes from Oregons Josephine County, where 65% of the police
departments staff was laid off in 2012.82 A woman called the emergency dispatcher because a
man who had assaulted her before was trying to break into her home, but the dispatcher was
unable to send anyone because there were no officers available from the county police or from
the state police. The woman was subsequently assaulted and raped by the man, who had gained
access into her home.83 To think that such utter lawlessness is a reality for some places in the
80 Ibid., Pg. 4
81 Ibid., Pg. 5
82 Hastings, Deborah. Cash-strapped law enforcement agencies in Oregon stop
answering calls, sending officers: If he ... assaults you, can you ask him to go
away?. New York City, 23 May 2013. Online Newspaper.
83 Ibid.
United States is unbelievable. The lack of public funding is infringing on a persons basic right to
safety, which in no circumstance should be the case.
The United States justice system is such that any encounter with the law leaves the poor
helpless and disadvantaged. In essence, the system runs as it was designed to. The most
significant shortcomings of the system are in established practices that were believed to be for
the good of the people. The bail system and mandatory minimum sentences were intended to cut
down on crime in good faith. However, as the nation has progressed, these accepted practices
have shown themselves to be unjust to the less fortunate. It is time for the United States to reevaluate their justice system and seek out not the most convenient solution, but the most
equitable solution.
Case Study 3: Sweden

When studying issues of social justice, it is essential to identify countries that serve as
positive examples. Sweden is the very model of modernity and success in justice systems.
Sweden is a Scandinavian country bordering Norway and Finland with a population of 9.9
million inhabitants, 23% of them being under 20 years old.84 Swedens justice system underwent
significant reform in the 1980s, which included changing the Code of Judicial Procedure in
Sweden to encourage the prosecution to take greater care in presenting the victims damage
claims.85 Their success has had a lasting effect, as they still stand out in Europe and worldwide
for having low crime rates and high levels of satisfaction with the justice system. The rest of the
world could learn from Swedens progressive justice system and its success in legal aid, victim
compensation, alternate dispute resolution, and liberal sentencing philosophy. Since Sweden has
so clearly shown that its justice system is exemplary, it is essential to understand how they
achieved this so that the rest of the world can follow by example.
The proof of the effectiveness speaks for itself in the poverty rate, the crime rate, and the
publics opinion of the justice system. The poverty rate, at 9.1% of population living at or under
the poverty line in Sweden in 2011,86 is one of the lowest in Europe, and many attribute this to
the governments very successful social assistance programs like legal aid. A low poverty rate is
the mark of effective social programs. Additionally, the low and declining crime rate proves the
effectiveness of the justice system. The rate of intentional homicides in 2013 was 0.92 homicides
per 100,000 people compared to the United States 3.85 per 100,000 people in 2013.87 The 2013
national Swedish Crime Survey reported that only 11.4% of respondents were the victims of one
or more crimes against the person, which includes assault, threat, sexual offences, mugging,
84 Sweden.se. Sweden - An Overview. 28 December 2015. Web Page. 2 May 2016.
85 Terrill, Richard J. World Criminal Justice Systems: A Comparative Survey. New
Providence, NJ: Matthew Bender & Company Inc., 2009. Document., Pg. 264
86 Borgen Magazine. The Nordic Welfare Model: Why There is Less Poverty in
Scandinavia. 26 February 2014. Online Magazine. 1 April 2016.
87 The World Bank. Intentional homicides (per 100,000 people) | Data | The World
Bank. 12 September 2008. Web Site. 2 April 2016.
fraud or harassment,88 which is an impressively low rate. The justice systems job is to reduce
crime and protect the people, so the rate of crime in the country is a good way to quantify their
success. Swedens low crime rates reflect very well on the justice system. Another way to
quantify the success of the justice system is in the publics opinion of the justice system, and the
Swedish people expressed a high level of confidence in the Swedish Crime Survey of 2013. In
the survey, 61% of respondents expressed a high level of confidence in the criminal justice
system as a whole,89 which is an entirely impressive statistic. Public support of the system is a
very clear indicator that, in general, justice is delivered to the people in a fair and effective
manner. The Swedish justice system is doing something right, and it is essential to discover what
that is in order to learn from Swedens success and bring it to the worlds attention.
There is no doubt that the Swedish justice system is successful, but it is essential to
determine why that is. There are several aspects to Swedens justice system that have been
identified as above average. These include the legal aid system, a public system to ensure victims
of crimes receive compensation, their various alternatives to dispute resolution, and liberal
sentencing policies.
Sweden has an extensive legal aid system that ensures that no one is denied legal
representation because of financial status. This is achieved by a high income cut-off for legal aid
eligibility which allows the majority of the population to take advantage of legal aid.90 The
amount of legal assistance granted is in proportion to the partys financial status. The state will
also cover all legal aid and advice fees for people under 18 with no income, including the cost of
a translator if necessary.91 A journal on Swedens legal system states that: Through a
88 Hvitfeldt, Thomas and sa Irlander. The Swedish Crime Survey 2013. Survey
Report. Stockholm: The Swedish National Council for Crime Prevention (Br), 2013.
Document., Pg. 5
89 Ibid., Pg. 9
90 Ortwein, Bernard Michael II. "Swedish Legal System: An Introduction, The." Ind.
Int'l \& Comp. L. Rev. (2002): 405-445. Document.
91 Rttshjlpsmyndigheten Sveriges Domstolar. "Legal aid in Sweden." Sundsvall: Swedish National Courts
Administration, 15 January 2007.Ortwein, Bernard Michael II. "Swedish Legal System: An Introduction, The." Ind.
Int'l \& Comp. L. Rev. (2002): 405-445. Document., Pg. 425
combination of public legal aid and private legal insurance, it seems that no citizen in Sweden is
denied access to legal assistance due to an inability to pay. That is very impressive, but it makes
one question how this is possible. Logistically, Sweden is able to provide legal aid and advice to
so many people because many Swedes have private legal insurance built into home or
automobile insurance that covers all or most legal costs. This system was modeled after the
Swedish governments publicly-funded Legal Expense Insurance (LEI) program that covered
certain civil law issues as part of a home insurance plan in the 1960s.92 Ever since then, legal
insurance is fairly standard in private insurance plans, and therefore fewer people rely on legal
aid, and when assistance is necessary, less assistance is needed. Though public support for LEI
was cut back in the 90s, the government can still be thanked to some extent for the successful
LEI system that has reduced strain on legal aid, therefore granting more low-income individuals
access to it.
Sweden, as well as a legal aid program, has a publicly-funded program that pays victims
compensation when the perpetrator is unable to pay. To the poor, it is essential to receive
compensation, especially when the crime has rendered the victim incapacitated in some way
because their ability to work and earn income may be hindered. This is a more significant issue
when the victim is already hovering around the poverty line. In Sweden, the government has
found a solution for this, which is a program in which the government will pay the victim
compensation if the perpetrator is not immediately able to, and the perpetrator is liable to pay
back the government.93 This program ensures that the victim is payed what they are owed in a
timely manner and the perpetrator is still held accountable. In countries without a public
compensation program, compensation can be extremely difficult to collect, and it can take a very
long time. While the government does not guarantee to pay compensation in all circumstances,
they almost always grant compensation in cases of assault, violation of the home, and children
92 Trebilcock, M.J., Lorne Sossin and A.J. Duggan. Middle Income Access to Justice.
Toronto: University of Toronto Press, 2012., Pg. 396
93 Crime Victim Compensation and Support Authority. Criminal Injuries
Compensation. 20 August 2015. Web Page. 2 April 2016.
that have witnessed violence and suffered psychological damage. Swedens compensation
program gives some security to victims of crime, which is imperative to the lower class.
Sweden enjoys a system of alternative dispute resolution that not is not only efficient but
effective as well. Sweden uses mostly arbitration rather than litigation to settle disputes, which
greatly reduces the strain on the justice system.94 This saves the government money in legal aid
because there are fewer legal costs associated with arbitration. The cultural tendency to seek out
arbitration is more typical in civil law systems, which Swedens justice system is based on.
Alternative conflict resolution works for the people and the government because it allows the
governments funds to be economical in helping the people.
The liberal sentencing policies in Sweden have also proven to be effective and efficient.
In every case possible, Swedish courts inflict sentences that do not involve jail time, as
rehabilitation rather than punishment is central to their sentencing philosophy.95 From 2004 to
2014, prison populations in Sweden dropped from 5,722 to 4,500, which is incredible
considering that Sweden has a population of 9.9 million people.96 Additionally, reoffending rates
are about 40%, which is less than half of the rates of re-offense in the rest of Europe.97 This is
huge success for a justice system, and it proves that lighter sentences are more effective than
harsh sentences, and they should be adopted globally where appropriate. In Sweden, noninstitutional punishment including fines or probation is emphasized as a way to allow criminals
to be rehabilitated in a humane way while still being a part of society. Swedens emphasis on
probation is extremely helpful to the poor because it allows them to be in the workforce while
being rehabilitated. Simply being able to work is essential to impoverished families that depend
on a single income. Because of Swedens policy to avoid institutional detention as a form of
94 Ortwein, Bernard Michael II. "Swedish Legal System: An Introduction, The." Ind.
Int'l \& Comp. L. Rev. (2002): 405-445. Document., Pg. 405
95 James, Erwin. "Prison is not for punishment in Sweden. We get people into better
shape." The Guardian 26 November 2014. Online Newspaper.
96 Ibid.
97 Ibid.
punishment, low-income families are not targeted financially. Sweden proves that liberal
sentencing philosophies are the best option in terms of the effect on crime rates and fairness to
those of all financial classes.
Sweden is exemplary in its commitment to fairness in the justice system. Through
Swedens extensive legal aid programs and the Crime Victim Compensation and Support
Authority, Sweden guarantees its people equity in law, so that no one is denied legal
representation or compensation that they deserve. Swedens commitment to alternative dispute
resolutions such as arbitration and their liberal sentencing laws are cost-efficient ways to reduce
strain on the justice system, all the while effectively dealing with conflict and rehabilitating
criminals. Justice systems all over the world could learn from Swedens example of fairness to
all in law, including the all-too-often marginalized poor.
Case Study 4: Canada

Canada, a country of 35 million inhabitants located in North America, has been an
example to the world on a number of social issues throughout history, and Canada has continued
to be an example in the fairness of the justice system to some extent. Though in many ways
Swedens justice system remains superior, Canadas justice system is arguably still among the
best in the world. The Canadian justice system has an enviable legal aid system and a bail system
superior to that of the United States, but Canada also struggles from budget shortages in the legal
aid system and does have a reputation of unpredictable sentences due to the lack of mandatory
minimums. The Canadian system is by no means perfect, but there are certain aspects to the
system that Canadians have greatly benefited from.
As mentioned, Canada has a legal aid system that the rest of the world could learn from in
a variety of ways, though it also falls short in a variety of ways. Canadas legal aid systems are
fairly easily accessible, with many provinces offering walk-in legal advice clinics, telephone
advice, and online information.98 If people are unable to receive legal aid, it should not be
because of a lack of access to their services. However, not every part of Canadian legal aid is
done well. In Canada, legal aid systems are province-wide, so they can vary greatly from one
province to the next. Provinces retain their right to determine financial eligibility and coverage
restrictions independently,99 which means that there is no standard of who receives legal aid and
how much they receive. Even the method of determining financial eligibility is not standard, as
provinces define income and family and choose to count assets in financial eligibility
independently.100 Unlike other provinces, the New Brunswick jurisdiction does not even have a
specific income cut-off, and determines eligibility for legal aid on a case-by-case basis.101 The
98 Government of Canada. Legal Aid Program. 7 January 2015. Web Page. 4 April
2015.
99 Tsoukalas, Spyridoula; Roberts, Paul. Legal Aid Eligibility and Coverage in
Canada. Research report. Ottawa: Department of Justice Canada, 2002. Document.,
Pg. 2
100 Ibid., Pg. 7
101 Ibid., Pg. 32
lack of a standard for legal aid allows for the percentage of poor adults aged 18-35 eligible for
legal aid to range from 21% to 88% across Canada.102 The poor need to be guaranteed help, and
Canadas varying system cannot guarantee much of anything. However, it must be mentioned
that budget shortages in legal aid are an ever-growing concern, and they have forced legal aid
providers to further limit financial eligibility in some cases. The financial state of the province
greatly influences the provinces ability to provide legal aid to those in need, though the federal
government does share some of the cost of legal aid.103 Budget constraints on legal aid are typical
globally, as many countries do not have the efficiencies of the Swedish justice system such as
widespread legal insurance and a preference for arbitration rather than litigation. Canadas legal
aid systems do have room to improve, but they generally provide for the people more effectively
than the rest of the world.
Canada, similar to Sweden, has a criminal injuries compensation program, but it is not
nearly as sophisticated as Swedens compensation program. Firstly, Canadas system works
differently than Swedens. In Canada, the victim of a violent crime or a family member of the
deceased victim can apply for government-granted compensation even if they do not wish to sue
the perpetrator of the crime. However, if they decide to sue after receiving compensation, they
must reimburse the government for the compensation provided.104 This model therefore does not
obligate the person who committed the crime to pay back the government in any way. This
model is beneficial because it does not require victims to seek compensation through litigation
and it supports those in need of financial support. Canadas model is extremely helpful to the
poor because it allows them to receive compensation for crimes, which they desperately need,
without going through litigation that they would have difficulty paying for (many provinces do
not cover lawsuits under legal aid). However, it is inferior to the Swedish system in that it is not
at all a self-sustained system, because no one (even the person who committed the crime) is
expected to pay the government back for the compensation they awarded the victim. The
102 Ibid., Pg. 1
103 Government of Canada. Legal Aid Program. 7 January 2015. Web Page. 4 April
2015.
104 Ibid.
government spends a significant amount of money to keep the system running, and the amount of
money that is awarded is limited. Canadas criminal injury compensation program is generous of
the government, especially to the poor, but unfortunately inefficient.
In Canada, the bail system is much fairer to the poor because it requires no upfront cash.
Upon a persons arrest, if they are not released, they must have a bail hearing within 24 hours. At
the bail hearing, the judge or justice of the peace determines if the accused is eligible for release
or if they need to be held in custody pending trial. The accused will only be held if they are
accused of murder or other serious offences or if one of the following is true: they need to
establish the identity of the accused, they fear the accused will destroy evidence relating to their
investigation, they fear the accused will continue or repeat the offence or commit other offences,
or they have reasonable grounds to believe the accused will not show up for court. If none of
those apply, the accused will be released and notified of a date to appear in court for a hearing as
well as quoted the price of a recognizance. If the accused does not appear in court on the date,
the accused is liable to pay the recognizance, but if they follow the directions of the court, they
are not obligated to pay anything.105 The poor do not deserve to be detained and treated as
criminals because they cant pay bail. This version of bail does not hold accused persons on the
basis of financial status, but for reasons of safety and integrity of investigations. Canadas bail
system is fair to all, and should be adopted worldwide in place of upfront cash bail systems.
Sentencing in Canada is much more liberal than that of the United States, but not nearly
as liberal as sentencing in Sweden, which has created a complicated debate about sentencing in
Canada. Canada has been criticized for a lack of standards in sentencing; people claim that
judges have a tendency to rule erratically and with personal bias.106 Some Canadians have been
calling for mandatory minimum sentences to eliminate biased sentencing, but others have
pointed to the United States as a reason not to introduce further mandatory minimums. Canada
currently has some mandatory minimum sentences in place, but not nearly to the extent that the
United States has. Canadas mandatory minimum sentences that involve institutional detention
105 Jourard, Ron. Release from Police Custody in Canadian Criminal Law. n.d. Web
Page. 5 April 2016.
106 Makin, Kirk. "Supreme Court Urged to Overhaul Sentencing Philosophy." The
Globe and Mail 8 December 2010. Online Magazine.
are placed on treason, first degree murder, second degree murder, and some firearm offences. In
the United States, conservative mandatory minimum sentences have driven the prison population
up dramatically, and that is not an example that many Canadians wish to follow. Extensively
introducing mandatory minimums that require detention very adversely affect the poor by
preventing them from being able to work, but unpredictable sentencing is unfair to the entire
population, so there is no easy answer to Canadas problem. Canada is pushing for change in
sentencing philosophies, but deciding on how to enact change without discriminating against the
poor is extremely complicated.
Canada faces major challenges in its justice system, but in many ways it is an example to
the world of a justice system that strives for equality. Discrimination based on financial status is
definitely an issue because of the struggling legal aid systems, but the criminal injury
compensation program and the bail system are very helpful to low-income Canadians. The issue
of unpredictability in sentencing is one that cannot be solved easily, but it must be addressed in
order to protect Canadians from personally biased sentencing. Canadas justice system, on the
worlds stage, is exemplary, but even exemplary justice systems have work to do to move
towards equality.
International Organizations
There are several international organizations that work for equality in justice systems as
all or part of their mission, and some with a fair amount of success. In the developing world, the
only significant work on justice systems is orchestrated by NGOs, and in the developed world,
international organizations like the UN have determined standards in justice systems that
maintain their fairness and keep them accountable. International organizations have had a huge
part to play in the developing and standardization of values in justice systems, and they continue
to do good work for the cause.
The United Nations has done significant work in setting standards for justice systems
worldwide through international law and/or recommendations. For example, the UN has made
the criminalization of poverty illegal in international law,107 they have defined standards for a
free trial,108 and they have made principles and guidelines for access to legal aid.109 This work is
very effective in creating standards for equality in countries that accept and follow the UNs
standards, but many developing nations that have technically agreed to follow the rules and
regulations of the UN do not follow them in practice. The grand malpractice in the Kenyan
justice system is not an issue of an absence of rules contrary to their actions, but it is the blatant
disobedience of the rules. Through international law, corruption is not allowed, the poor must
have access to legal aid, and everyone is entitled to a fair trial. However, this has shown to be
opposite to what actually happens in developing nations like Kenya. The UN could take them to
the International Court of Justice if they found undeniable proof of these offences, but frankly, if
the UN was in the business of taking nations to the International Court of Justice over issues like
corruption in the government, they would have a trial for every country in the world. The sheer
107 United Nations. Extreme poverty and human rights. Report by the SecretaryGeneral. New York: United Nations General Assembly, 2011. Document.
108 "Universal Declaration of Human Rights." UN General Assembly, 10 December
1948. Document. Article 11, Page 3
109 United Nations Office on Drugs and Crime. United Nations Principles and
Guidelines on Access to Legal Aid in Criminal Justice Systems. Resolution of the
General Assembly. Vienna: United Nations Office on Drugs and Crime, 2013.
Document.
volume of issues covered by the UN is so vast that on certain issues, the best that they can do is
hope that the nations of the UN follow the laws put in place. This is not to say that the UN is
useless; it is certain that the state of peace and justice worldwide would not be what it is today
without the help of the UN. However, the fact that the UN is so massive means that it has a very
limited ability to intervene in local justice systems that need intervention. The UN does a
wonderful job setting worldwide standards, but for developing nations, they do not have the pull
that they need to make a difference.
Amnesty International, similarly to the UN, is a massive organization that combats a
significant number of issues worldwide by starting petitions, campaigns to raise awareness of
global issues, raising money for research and reporting global issues, and has had a permanent
international criminal court since 2002.110 Another way that they are similar to the UN is that the
magnitude of the organization and the issues that they investigate dictate that the work is less
intimate in the lives of individuals and communities. Amnesty International takes a broader
approach by taking on responsibility to expose major human rights violations and prosecute
large-scale criminals, like those involved in genocide. Amnesty International does wonderful
work in its field on a very large scale. Its role in many issues is to report them to the public and
mobilize groups to oppose injustice. Organizations so large have a limited reach because the
issues they combat are so broad, but this is not necessarily a problem when smaller organizations
with a more hands-on approach exist. In conjunction with organizations more intimately
involved in individual communities like International Justice Mission, Amnesty International is
able to achieve its goals and create equality worldwide.
International Justice Mission is an NGO that has the goal of instituting fair justice
systems worldwide. They do this by investigating the state of international justice systems, then
taking the course of action deemed necessary based on the results. Currently much of the work
that IJM does is having local lawyers do pro bono legal aid work in countries without adequate
legal aid (which is most of the developing world), retraining police forces to limit police
malpractice, and having local lawyers and social workers use their understanding of the culture
and language to promote the change that needs to happen to those with the power to make
110 Amnesty International. International Justice | Amnesty International Canada. 21
August 2010. Web Page. 5 April 2016.
change. IJM is currently working in 17 communities worldwide, and has trained 13,000 police
officers and officials since 2012.111 They have also partnered with other NGOs like Paz y
Esperanza and the Bill and Melinda Gates Foundation to make a more significant impact by
working together. By all accounts IJMs work is a sincere and significant step in the right
direction as far as international aid by NGOs. They have determined the root cause of poverty in
the developing world is violence and the lack of enforcement of the rule of law, which I believe
to be an accurate assessment of the issue. The International Justice Mission is a force to be
reckoned with in the development of justice systems in the developing world, and their work,
with time, will change the lives of the marginalized internationally.
Paz y Esperanza, which translates to Peace and Hope, is a mainly Latin American-based
NGO that does much the same work as IJM, and the two organizations have worked together in
the past. They are both Christian organizations, and some of the communities IJM is focusing on
are in Latin America, making for a very natural partnership. The two organizations worked
together in Hunuco, Peru following the story of a young girl who was raped and murdered, then
thrown in the street. This horrific story was a blaring reminder of the deeply-rooted dysfunction
in the system that allowed for this to happen. Paz y Esperanza and IJM worked together in the
community to educate the people about their rights and responsibilities to prevent this from
happening, as well as training teachers, police officers, and health workers. Before their
intervention, successful convictions of sexual predators were nearly unheard of, but since 2003,
there have been 152 convictions.112 This success is a sign of hope for communities facing the
same issues as Hunuco, Peru, and a powerful testimony of the power of their organization. As
for the rest of their work, Paz y Esperanza is less focused on rehabilitating justice systems, and
has more varied methods and goals. Paz y Esperanza conducts public opinion and policy
research, educates and trains on topics related to their work as an organization, mobilizes
advocates for issues like access to legal services, and collects and distributes resources (financial
111 International Justice Mission. How We Work. 21 December 2014. Web Page. 4
April 2016.
Book., Pg. 272
and otherwise) to those in need of aid like victims of sexual assault, indigenous communities,
victims of natural disasters, victims of sex trafficking, and rural communities.113 Clearly, Paz y
Esperanzas work is extensive and varied, and has done great things in Latin America.
The Bill and Melinda Gates Foundation has also made significant contributions to the
rehabilitation of justice in developing Nations. The Bill and Melinda Gates Foundation is not
purely for the reform of justice systems, but they have funded some projects that did just that in
developing nations. For example, the foundation funded a project in 2007 called Project Lantern
whose main goal was to reduce the instances of child sexual exploitation in Cebu, Philippines.
The project tackled the issue by mobilizing a corps of Filipino lawyers, criminal investigators,
social workers, and community activists that would train, equip, and support the local police,
prosecutors, courts, and social services. It was a massive project, but efficiently run, and auditors
documented a 79% reduction in the victimization of girls in the sex trade.114 This project would
not be possible without the support of the Bill and Melinda Gates Foundation. Their support has
made a significant, sustainable difference in the justice system as well as the lives of children
that had been exploited in the sex trade.
There have been several large organizations that have been instrumental in getting justice
for the marginalized worldwide, and their efforts have not gone for granted. While there is much
more to be done, these have all been steps in the right direction. While there are many more
NGOs making a difference in international justice systems, these have been the organizations to
have significant success. Governments in developing countries may or may not hold the justice
systems accountable, so NGOs are essential in the fight for justice.
113 Paz y Esperanza. Peace and Hope International | Our Work. 24 January 2016.
Book., Pg. 118
Solutions
Bringing an end to the discrimination of the poor in justice systems is not, by any means,
a simple issue. For every incentive to bring change to the system there is a force countering it,
whether it is a lack of money or corrupt government officials. The ways that justice systems fail
are different in the developed world compared to the developing world, so the solutions are
different as well. Some change is already underway, but there is still a very long way to go.
Developed world:
In the developed world where government-funded entities in the justice system exist but
suffer from budgetary restraints, there is a very simple answer: re-evaluate priorities to allocate
more funding to police and legal aid. This, of course, is more easily said than done because the
political climate has a major part to play in these decisions. A change in public opinion can likely
only come with time and slow liberalization, but it is not impossible. Increased government
spending will allow for legal aid lawyers to have more time with their clients to determine the
way they would like to plead instead of being pressured into plea deals that may be a worse deal
than they deserve. It will also allow the police to do their job, as that very basic ability is at risk
because of dangerously limited funding. Perhaps it will take more cases of shameful lawlessness
in underfunded districts to change their minds, and if more funding does not come in, there will
be more cases. The support of politicians can change the minds of the people dramatically, so the
risky political move of pushing for budgetary reform to support legal aid and law enforcement at
the cost of higher taxes could make a difference. A lone politician pushing for this is political
suicide, especially in the United States, but a united effort from all parties could be extremely
effective in changing public opinion.
In the United States specifically, it is important to push for fair, even distribution of the
budget for police and legal aid within a state. The current system relies on local districts to
collect a significant part of the budget from its people through taxes without help from the state,
and this has created pockets of severely underfunded systems within a state. Poor districts simply
cannot collect enough to fill a budget on their own. A possible solution to this is having all the
money collected to support police and legal aid directed to the state, that will then allocate it
proportionately based on population and average demand (for social programs). This would
prevent major disparities within a state and ensure that poor districts are not getting insufficient
support because of their poverty.
Another step that the developed world can make to ease the strain on justice systems is
liberalizing the sentences imposed on minor, non-violent offences. As it is, especially in the
United States, the public defenders have severely overwhelmed caseloads, so reducing some
sentences to fines or probation rather than jail time would seriously reduce the number of people
cycling through the justice system, and therefore the demand for legal aid will go down. In many
states and provinces, one will only be granted legal aid when there is a possibility of jail time, so
eliminating that possibility in minor offences will ease the overwhelmed legal aid system. Not
only will this ease the strain on the legal aid system, it will also reduce prison populations. Proof
of this is in the extremely low prison populations in Sweden in conjunction with their liberal
sentencing, in which probation is an option for almost every offence. The United States, in
contrast, shows the effect of doing the opposite. The United States has massive and growing
prison populations, and they have much harsher sentencing policies, even for non-violent
offenders.
Bail systems in which the posted bail price must be payed upfront have shown to be
discriminatory to the poor, so a simple solution is to change bail systems to be similar to
Canadas. It must be considered that the upfront cash bail system does earn the government
money, so alternative methods of fundraising must be employed. However, the money that they
lose from changing the bail system may be offset by the cost of detaining those who cannot pay
bail awaiting trial decreasing. Its been clearly proven that cash bail systems are systematically
discriminatory, so simply changing the bail system so that up-front money is not needed would
make a huge difference to the impoverished in the justice system.
Another way to limit the discrimination of the poor in the justice system is to abolish
vagrancy laws. Thankfully, this is already happening in many places in the United States because
they are being deemed unconstitutional. Essentially, the solution is as simple as abolishing
vagrancy laws, and it is likely that this will happen everywhere in the United States, but it may
just be a matter of waiting for the remaining States to catch up socially.
Mandatory minimum sentences are not always a bad thing. They prevent unpredictable or
biased sentencing, and they make sure that dangerous offenders do not get off too easily.
However, on minor, non-violent offences, mandatory minimums increase prison populations
dramatically and prevent them from being in the workforce, while not reducing crime rates or
rates of re-offense. Therefore, some mandatory minimums must either go or be liberalized, but
not all. In such a complicated issue with such a fine line of what is helpful and what is
detrimental, one must proceed with caution. However, mandatory minimums in the United States
cannot stay as they are, whether it takes liberalization or abolition of mandatory minimums on
minor offenses.
As a citizen, there is little than can be done passively, but with some time and energy,
change cannot only be accomplished by only those in a position of power. The role of the citizen
in this case may be mostly reaching out to politicians that can be advocates for change in the
justice system. Reaching out to local members of parliament, for example, is a good way to bring
attention to the issue and have it represented by people that have the power to make changes.
Similarly, writing to the government may (or may not) reach the politicians and policymakers
that have the power to act on the issue. Since the nature of this issue is legal and political, the
average citizen cannot personally advocate for reform, but can support politicians that will argue
their case. The bureaucracy is a difficult environment to penetrate, and penetrating the
bureaucracy neednt be the role of every citizen with a cause. Making sure that the local advocate
or leader supports reform of the justice system and is prepared to fight for reform is a very
legitimate way to get involved and make a difference.
Developing world:
In the developing world, the issues are in a way very straightforward, but the executing of
the solutions becomes extremely complicated. However, the first solution is very straightforward
to execute: the NGOs currently at work need to continue the work that they are currently doing.
It isnt a radical solution by any means, but the NGOs are making a very significant difference,
so continuing their work is the best thing for them to be doing. The NGOs cannot be the only
ones working to change justice systems and stop discrimination against the poor, but at the
moment they have a significant role to play, and in many cases they are the only ones willing to
push for change.
Stopping corruption is where the solutions become complicated. Ultimately, the reversal
of the immense corruption must be done from the inside. There is little that outside governments
can do, or even NGOs because removing corrupt officials from power is not something that can
be done without ones own influence. In Kenya, there is corruption at every level of the
government and justice system from traffic cops to judges to political leaders. To clean the
system of corruption, the high-ranking corrupt government officials need to be removed from
power, which will only come from serious pressure from the Kenyan people as well as a
significant amount of time. The people of Kenya as well as NGOs can rally support for the cause
of eliminating corruption, which will help, but it is not an overnight solution.
In the day-to-day workings of corrupt staff in the justice systems, combating corruption is
a little bit simpler. This will come with training and enforcing basic regulations. Part of the
solution may be training the law enforcement administrative duties like how to keep good
records. Accountability within the force can have a drastic influence on the performance of the
officers. To combat corruption in the law enforcement, the salaries of police officers must also be
re-evaluated. Corruption will remain very tempting until the officers can live on officers salaries
alone.
The developing world, because of its immense poverty, is in desperate need of legal aid
and other social programs, but getting those social programs is not easy. The directive to
allocate more money to legal aid is unhelpful when there is simply not enough money for that,
because many developing nations are already going deeper into debt every year. Additionally, if
they are under the thumb of the IMF, they dont have much control of their own spending on
social programs. Therefore, for now, the only reasonable solution may be expanding NGOs to
provide basic legal aid services. International Justice Mission is already doing this in a few
communities, but to cover the demand, there would need to be major expansion. Another
possible way to better the situation would be to provide grants and incentives to people wishing
to become lawyers. In much of the developing world, there are so few lawyers that the private
sector is not oversaturated and there is opportunity to earn a very good living, making the
lifestyle of a legal aid lawyer (lower pay and less opportunity for gaining high status)
unappealing. Expanding legal aid services through NGOs and creating incentives to pursue law
in the public sector many not make a significant difference, but they may be the only ways to
support legal aid systems in the developing world.
The role of the citizen in developing nations, like in most issues dealing with government,
is not hands-on. The citizen in a developing country, like in a developed country, can reach out to
existing politicians, but the effect may not be the same. The extent of corruption in government
means that any efforts to have reform advocated for may be futile. Trying to earn a position on
government may also be unsuccessful because it is difficult to get a position in government
without already being wealthy and aligned with powerful leaders. In this instance, perhaps the
most effective solution is to support NGOs that are active in the community. As mentioned,
NGOs are driving the movement to reform justice systems in the developing world. Whether this
means volunteering or donating, this is debatably the best way to make sure that there are
advocates fighting for reform. The same is true for people of developed nations wishing to make
a difference in developing nations. If they have the qualifications to do hands-on work (like
lawyers or paralegals), that is always needed, but there is always a role for the average citizen as
well.
Because of the drastically different situations that the developed world and the
developing world face, the ways to solve the issues in each must also be different. In the
developed world, there needs to be increased funding to legal aid and police forces, fair and even
distribution of those funds within a state, liberalizing sentences, reforming bail systems so that
they do not require upfront cash, abolishing vagrancy laws, and pulling back on mandatory
minimums. These changes may be difficult to achieve in a political climate so slow to make
modifications to their system, but it has happened before and it can happen again. In the
developed world, there are logical solutions but the chance of them happening is less hopeful. In
the developing world, the NGOs currently at work need to continue their good work, the corrupt
leaders need to be taken out of their positions, the police force needs to be trained and paid
better, NGOs need to expand legal aid service, and there needs to be greater incentive for the
people to become lawyers in the public sector. Radical change never comes easily, but with the
right leadership it is possible. There is hope for international justice systems and the poor, but at
times they seem out of reach.
Appendix
Article 1: This graph records the prison population in the United States from 1925 to 2014. The
rapid increase from the mid-1980s to the mid-1990s coincides with the tough on crime
movement that instated harsher mandatory minimum sentences on many drug-related offences.
This movement lead to mass incarceration that is still pertinent today. Obtained from: Fact
Sheet: Trends in U.S. Corrections by the Sentencing Project.
Article 2: As a comparison, the chart above shows the rates of incarceration per 100,000 people
in 2015 internationally. Obtained from: Fact Sheet: Trends in U.S. Corrections by the Sentencing
Project.
Article 3: This chart shows the responses of those surveyed by the United Nations Office on
Drugs and Crime about the main shortcomings of legal aid in Africa. Obtained from the Access
to Legal Aid in Criminal Justice Systems in Africa Survey Report conducted by the United
Nations Office on Drugs and Crime.
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The Logic of Evil

Case Study 1: Kenya

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Case Study 3: Sweden

Case Study 4: Canada

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