Media Advisory for Monday July 11, 2016
Louisiana Police Violently Violate Constitutional Rights of Civilians Gathering Peacefully to Protest the Murder of Alton Sterling in Baton Rouge
“WE WANTED TO BE SURE THAT PEOPLE WERE ABLE TO ENGAGE IN FIRST AMENDMENT ACTIVITY AND WERE INSTEAD MET BY AGGRESSIVE LAW ENFORCEMENT”
On Sunday thousands of protestors gathered in Baton Rouge to peacefully protest the killing of Alton Sterling by the Baton Rouge Parish Police Department. The large protests followed days of building local mobilization.
Between Friday and Sunday, more than 150 non-violent protesters were arrested, and dozens documented incidents of civil and constitutional violations including excessive use of force and unlawful infringement on First Amendment rights. “Over the past few days, law enforcement in Baton Rouge have escalated every interaction with the public civilian population, creating a more dangerous environment for everyone,” says May Nguyen, Secretary of the National Lawyers Guild Louisiana Chapter.
On Saturday afternoon, following a permitted peaceful protest, protesters were met by more than 100 law enforcement officers including Baton Rouge sheriffs deputies, Louisiana State Police, and Baton Rouge Police in full riot gear and military assault rifles. Law enforcement formed deep lines that cornered hundreds of protesters onto the sidewalks of two residential streets, and a resident’s small front lawn, with permission but with no place to exit. Anyone who moved was aggressively tackled to the ground and arrested. Law enforcement also targeted snatch-and-grab arrests of individuals who posed no threat to public safety, charged at the demonstrators chasing them with assault rifles, and entered a resident’s home who had begun sheltering demonstrators.
Professionally-trained negotiators attempted to intervene with law enforcement at the confrontation, but they refused to cooperate and deescalate the situation. Mandisa Moore-O’Neal, a local attorney and Vice President of the Louisiana National Lawyers Guild, said “myself and members of the NLG tried many times to intervene and ask law enforcement to de-escalate. Many of them were holding assault rifles with fingers on their triggers and those guns were pointed at the protesters. I had a clear view of both sides of the street; I did not see one thing was thrown by the protesters. I did not see any rocks or asphalt being thrown by protesters.”
Over the last few days, in addition to escalating the confrontation against peaceful protestors the police arrested at least two National Lawyers Guild legal observers and 3 members of the press including WWNO reporter Ryan Kailath. “We are also seeing that protesters are being charged with crimes unrelated to any activity documented at the protests. A legal observer standing and documenting the protest was charged with obstruction of a highway and resisting an officer. Protesters who were dragged and tackled into the street are being charged with blocking traffic,” said Sima Atri, a civil rights attorney supporting local organizers in New Orleans and Baton Rouge. “Protesters are also being mistreated in jail after their arrest. We have documented reports of protesters engaging in peaceful vigil and song being maced, medication being withheld, 40 to 50 protesters being caged in small cells, and sheriffs making aggressive, violent, and discriminatory comments.”
Protesters continue to be held at East Baton Rouge Prison. None are being released without bond.
The National Lawyers Guild has been supporting individuals engaging in protest through legal observing, posting of bond, and additional criminal defense legal support. NLG is also operating a 24/7 Legal Hotline at225-341-2287.
Movement lawyer, organizer, advocate. That is how Ahmad Abuznaid describes himself. Whether he is helping organize a historic 31 day sit-in in the Governor of Florida’s Office, presenting before the United Nations Human Rights Committee in Geneva, working as Legal and Policy Director for Dream Defenders, or leading a delegation of Black Lives Matter activists to Palestine, Abuznaid, who has been a lawyer for five years, is all about justice.
Ahmad Abuznaid was born in East Jerusalem, Palestine. His father was a professor at Hebron University and later a diplomat who dedicated his life to the Palestinian cause. As a one year old his family moved to the US. His father had US citizenship, Ahmad and his mother received citizenship later. He returned to Palestine as a 7 year old to live there for five more years. ““As a seven-year-old boy being strip searched next to your mother… that obviously has a lasting effect,” he remembers. “Living in the occupied territories for a few years, I experienced harassment, strip searches, checkpoints and curfews that would extend for weeks. Like millions of Palestinians across the world, I am denied my legal right to return to my homeland by the settler colonial state of Israel. The Apartheid system they have enacted makes it possible for a Jewish child born today in Alaska to have greater rights in historic Palestine than me and my entire family, simply because we do not subscribe to Judaism.”
Returning to Florida he “started hanging out with all the Black and Latino kids. Because of my experience in Palestine, the blinders had been taken off of my eyes. I began to recognize the existence of US systems of injustice which disproportionately affected black, brown, and poor people. It was very easy for me to see parallels in different oppressions. Maybe because of what these systems have done to us, I felt a similar spirit of resistance.”
In college Abuznaid started organizing. In 2006, while he was attending Florida State University, 14 year old Martin Lee Anderson was murdered in a state-run boot camp youth detention facility in Panama City Florida. Though law enforcement said Anderson died of sickle cell anemia, surveillance tapes came to light showing he collapsed during mandatory exercise and five officers kneed the dying youth and hit him trying to force him to continue to run.
Abuznaid, who was student body vice president at Florida State University in Tallahassee, joined FSU Senate President Gabriel Pendas, Florida A&M University student body vice president Umi Selah (formerly known as Philip Agnew) and many other student leaders including some from Tallahassee Community College to organize a two day sit-in taking over the office of Florida Governor Jeb Bush. They called themselves the Student Coalition for Justice. “We took over the state capitol and organized a year of campaigns to get justice for Martin Lee, his family, and for accountability of those involved.” Under considerable pressure, Florida shut down the juvenile boot camps. “This group gave me the feeling of organizing and winning by affecting people’s lives. It was addicting.”
After college, he worked as the Florida field director for the United States Student Association. Fortunately, Abuznaid, Selah and Pendas stayed friends after they graduated.
Abuznaid went to law school at Florida Coastal in Jacksonville. “I knew I wanted to be a lawyer way back in Palestine as a young child. I imagined that being armed with knowledge of the law and its institutions would mean that I could fight back against the colonization of my homeland and the abuse of my family, my people. When I returned to the US I kept that mindset and so for high school I enrolled into a Pre-Law magnet program for high school. I kept focused on that goal until completion in 2011 when I graduated from Law School and passed the Florida Bar.”
One of the highlights of law school was his work in the immigration clinic where he help Iraqi refugees and others seeking to be accepted into the US. Another was the opportunity he received to serve 300 hours of pro bono work in an internship with the International Criminal Court in the Netherlands. While some law school faculty members were really helpful and were invested in his future, he could tell he was going down a different path from many of his classmates. While he saw the legal system as inherently flawed, it was clear to him that others in his class really wanted to uphold the system as is.
Trayvon Martin and Dream Defenders
In 2012, less than a year after Abuznaid graduated from law school, 17 year old Trayvon Martin was shot in Sanford Florida.
“After the murder of Trayvon Martin, my colleagues and I who had organized together way back in Tallahassee around Martin Lee Anderson decided to join back together to create something lasting. We realized that we were short sighted and reactionary back in those days and we wanted to make sure we didn’t make those same mistakes again. So we decided to create what is now called the Dream Defenders.”
The three friends, Abuznaid, Selah and Pendas, created a Facebook invitation for a conference call to plan organized action on behalf of Martin. The call drew 150 participants. One of the people on the call suggested the name Dream Defenders and it stuck.
Forty leaders immediately organized a 40 mile three day protest march from Daytona Beach to Sanford. Many of those people stayed on to found Dream Defenders. When Martin’s killer was acquitted, they organized a 31 day sit in of Florida Governor Rick Scott’s office. Abuznaid wrote in Law at the Margins, “We are demanding justice not only in the name of Trayvon Martin, but also in the name of every young person who has been and/or will be profiled, marginalized, and criminalized under the current system. We will work to educate, organize, and mobilize this generation. They are ready. We will never forget his name, nor the anger we have felt since he was taken from us. Be the power.” Dream Defenders then turned their energy to the legislature to fight stand your ground gun laws and to fight to stop the school to prison pipeline.
Abuznaid has served as the Legal and Policy Director for Dream Defenders since he helping co-found it. At the beginning it was all volunteer work. He supported himself with short term contract jobs until Dream Defenders had enough money to hire him full-time. “I have learned so much since we founded this organization that it is hard to put into words, I feel like a gained a life’s worth of insight and wisdom within these short 4 plus years. I get satisfaction from touching people’s hearts with our work and winning.
“Personally, I have evolved as a lawyer and organizer just the way Dream Defenders has continued to evolve as an organization. I specialize in counteracting violence against communities of color in Florida as well as making connections internationally with human rights defenders in Palestine. This is an effort to revive the internationalism we have seen historically from the radical left in the US.”
Abuznaid has returned to Palestine many times. In 2015 he co-organized a trip to Palestine for black journalists, artists, organizers from Ferguson Missouri, Black Lives Matter, Hands Up United, Justice League NYC, and Black Youth Project 100 in order to connect and build relationships between people on the ground leading fights for liberation. “In the spirit of Malcolm X, Angela Davis, Stokely Carmichael and many others, we thought the connections between the African American leadership of the movement in the US and those on the ground in Palestine needed to be reestablished and fortified.” He also organized another trip to Palestine in 2016 which connected Black Lives Matter activists, Puente Arizona, PICO National Network and others with grassroots organizations and Palestinian civil rights activists in Ramallah, Jerusalem and Haifa to explore their parallel fights.
With Dream Defenders his legal work has included advocacy before the United Nations Human Rights Committee in Geneva, the Inter-American Commission on Human Rights, the United States Commission on Civil Rights, and the Congressional Black Caucus Foundation Conference.
“Mass incarceration and state violence are particular cases of interest to me. They hold back so many of our people, often eliminating them from the possibilities of advancement. These are old issues that we face all over the world at different levels and so the fight against these systems is also a rallying cry for us all.”
He has a clear vision of how social change comes about. “Justice comes when the people at the grassroots level are able to create enough momentum, attention and energy to shift the culture. The problems with our system are often that it is top down from the government to us. We have to reverse that dynamic, only then do we see real justice, “by the people and for the people”
To sustain himself, he mediates in the morning and enjoys reading. He admits to a sneaky sense of humor and tries to walk to the beach whenever he has the chance. When asked for books he recommends, he suggests The Autobiography of Malcom X and Pedagogy of the Oppressed by Paulo Friere.
For students looking for advice, Abuznaid suggests, “Lay out a plan for yourself. Try to identify what work you would really like to do, the type that gets you going in the morning. Attend the meetings, gatherings, conferences and meet the people you want to learn from. Also, get involved in your local community, build relationships, learn and grow. The greatest impact always happens on the local level.”
Dream Defenders is an organization with transformational vision. It describes itself and its vision “as an uprising of communities in struggle, shifting culture through transformational organizing. We believe that our liberation necessitates the destruction of the political and economic systems of Capitalism and Imperialism as well as Patriarchy. We believe in People over profits. We believe that nonviolent resistance is “the only morally and practically sound method open to oppressed people in their struggle for freedom” and are fundamentally committed to nonviolence as our means of struggle against a violent oppressor. We want an immediate end to the police state and murder of Black people, other people of color, and other oppressed peoples in the United States, the immediate release of the 2.5 million prisoners of the United States’ War on the Poor, and trials by juries of our peers. We want an immediate end to all wars of aggression (domestic & abroad). We want a democracy that is fair and protects the right to vote for all. We want free, fully-funded public education for all that teaches us our true history and our role in present day society. We want community control of land, bread, housing, education, justice, peace and technology. We want more. We deserve more. We will organize, train, act and win.”
Abuznaid and Dream Defenders demonstrate what a movement and a movement lawyer can do for social justice.
By Bill Quigley. Bill teaches law at Loyola University New Orleans. He is part of the legal team in this case.
Voice of the Ex-Offender (VOTE) and 8 individuals filed a class action voting rights challenge for 70,000 people in Louisiana saying they are illegally prohibited from voting. The VOTE suit charges that the Louisiana legislature wrongfully and unconstitutionally passed a law disallowing people convicted of felonies from voting if they are on probation or parole.
VOTE’s suit points out that the Louisiana Constitution only prohibits people who are “under an order of imprisonment” from voting and that this was intended only to prohibit people actually in prison or escapees from voting. The VOTE suit further notes that the Louisiana state constitutional convention voted down an attempt to restrict voting for people on probation.
The class action lawsuit was filed on behalf of the 70,000 people in Louisiana who are probation or parole. The US Department of Justice reports over 41,000 people in Louisiana are on probation and over 27,000 are on parole.
It was filed in Baton Rouge and names the State of Louisiana, the Governor and the Secretary of State as defendants.
VOTE is an organization that began in 1987 as the Angola Special Civics Project, a group at the Louisiana Penitentiary run by prisoners who had become paralegals. VOTE, now run by Norris Henderson, was officially created in 2003 when it focused on voter registration for pre-trial detainees and people convicted of misdemeanors. Henderson is a nationally recognized expert in human rights for prisoners and ex-offenders.
VOTE has registered thousands of people to vote. It educates the public about the collateral consequences of convictions that inhibit successful reentry. Vote has partnered with Tulane Medical School to provide medical care for people leaving prison and has partnered with other organizations to win several recent victories including Ban the Box and a new public housing policy.
Eight individuals also joined VOTE in filing the suit in Baton Rouge. All work and pay taxes but are not allowed to register or vote. The individuals who filed the suit include the following.
Kenneth Johnston, 67, served in Vietnam and attended University of New Orleans before becoming addicted to heroin in part to address the Post Traumatic Stress Disorder he acquired in Vietnam. He spent 22 years in prison after a felony conviction and has been out for 23 years. Because he is on parole for life he will never be allowed to vote.
Bruce Reilly, 42, Deputy Director of VOTE, is a graduate of Tulane University law school who has won numerous awards for his work. He spent 13 years in prison in Rhode Island and has been out for 11 years. Although he can vote in Rhode Island when he moved to Louisiana, he lost the right to vote until 2035 when his parole ends.
Dwight Anderson, 40, who attended Southern University, works for CeaseFire New Orleans counselling high risk young people and others in order to reduce shootings and violence in the city. After spending five months in jail for felony drug convictions he was sentenced to probation for ten years and is not allowed to vote until 2017.
Randy Tucker, 57, has run his own business since 2006. He serves as a Deacon at Israel Baptist Church. As a result of a felony conviction he spent 25 years in prison till his release in 2003. Because he is on probation until 2065, he will likely never be allowed to vote.
Bill Vo, 31, is a student in Information Technology at the University of New Orleans. Because he spent six months in federal prison for felony drug possession and is on probation until 2017, he is not allowed to vote.
Checo Yancy is the president of the Louisiana chapter of Citizens United for Rehabilitation of Errants (CURE). He is an active member of the Grace and Compassion Church in Baton Rouge, a member of the Kairos Angola Advisory Board and an active volunteer with Promise Keepers – Men of Integrity. He served 20 years in Angola for a felony conviction and has been out on parole for 12 years and will remain on parole until 2029.
Ashanti Witherspoon, 66, is a pastor and has earned a Doctorate in Theology. He is involved with the Baton Rouge Violence Elimination Program (BRAVE) and speaks before schools, universities, churches, government and community organizations. He was convicted of a felony in the early 1970s, was imprisoned for 25 years until he was released on parole in 1999.
The case is expected to be heard in the next several months.
19TH JUDICIAL DISTRICT COURT FOR THE PARISH OF EAST BATON ROUGE
STATE OF LOUISIANA
VOICE OF THE EX-OFFENDER, KENNETH JOHNSON, BRUCE REILLY, DWIGHT ANDERSON, RANDY TUCKER, BILL VO, HUY TRAN, CHECO YANCY, ASHANTI WITHERSPOON, AND OTHERS SIMILARLY SITUATED
STATE OF LOUISIANA; JOHN BEL EDWARDS, GOVERNOR OF LOUISIANA; AND TOM SCHEDLER, SECRETARY OF STATE OF LOUISIANA
DATE FILED:_____________________ __________________________________
CLASS ACTION PETITION FOR DECLARATORY AND INJUNCTIVE RELIEF
- INTRODUCTORY STATEMENT
This is a class action brought on behalf of nearly 70,000 citizens of Louisiana whose voting rights are unconstitutionally denied. These citizens are being wrongfully excluded from registering to vote and voting because they are on probation or parole resulting from a conviction for a felony. The 1974 Louisiana Constitution, Article 1, Section 10, protected the right of all people over 18 to register and to vote, “except that this right may be suspended while a person is under an order of imprisonment for conviction of a felony.” In 1974, Louisiana’s most respected constitutional scholar and expert on the new 1974 Constitution, LSU Law Professor Lee Hargrave, stated that this denial of the right to vote applied only to people actually in prison or who had escaped. Minutes of the convention which drafted the constitution show a proposal to deny the right to vote to people serving probation for a felony was specifically rejected. However, two years later the Louisiana legislature, through Act 697 of 1976, overhauled the Louisiana Election Code and, in violation of the Louisiana Constitution, unconstitutionally expanded the Louisiana denial of the right to vote to not only those persons who were imprisoned for felony convictions but also to anyone who was on probation or parole after a felony conviction. This disenfranchisement was codified in Louisiana Revised Statutes Title 18, Section 2, subsection 8, which in concert with Title 18, Section 102 A (1), excludes anyone on probation or parole for a felony conviction from registering to vote or voting. This action seeks declaratory and injunctive relief to strike down the unconstitutional statute which results in the wrongful and unconstitutional disenfranchisement and denial of voting rights of 70,000 people in this state and to restore the constitutional right to vote to these citizens.
- THE PARTIES
Plaintiffs in this matter are:
Voice of the Ex-Offender (hereinafter VOTE) is a Louisiana non-profit corporation of and for formerly incarcerated persons, convicted people, and their families, which focuses on voter registration, electoral participation and social change. VOTE is a plaintiff with both first party and associational standing on behalf of its members. VOTE began in 1987 as the Angola Special Civics Project, a group at the Louisiana State Penitentiary at Angola run by a prisoners who had become paralegals. When they discovered that detainees who are not on probation, parole or serving time on a felony conviction could vote, they began to lobby their legislators and encourage their family and friends to vote. In 2003, several members were released, and took their efforts further, creating VOTE, an organization originally focused on voter registration for pre-trial detainees and those convicted of misdemeanors in the state of Louisiana. Since 2003, VOTE has expanded its work to educating formerly incarcerated people about their rights and registering them to vote. VOTE has successfully registered thousands of voters, educated the public about the collateral consequences that inhibit successful reentry, created a model reentry program (The First 72+), partnered with Tulane Medical School to provide medical care for people leaving prison (FIT Clinic), and won several policy victories, such as parole reform, Ban the Box, and a new public housing policy. In 2004, VOTE hosted the only conference on felony disenfranchisement in the history of the state. VOTE members and staff encourage civic engagement by people directly impacted by the criminal justice system. VOTE’s staff is 60% formerly incarcerated, with one member still on probation and a named plaintiff within this litigation. Among the board members: two are formerly incarcerated, and two others have immediate family members who were incarcerated. VOTE’s mission is frustrated by the prevalence of members, and potential members, who are denied the right to vote in Louisiana. Multiple active VOTE members are denied the right to vote due to probation or parole status, along with thousands of other potential members who fit the target demographic of the association.
All individual plaintiffs in this matter are residents of and domiciled in Louisiana.
Kenneth Johnston is a 67-year-old African American man who resides in New Orleans and who served his country in the army for three years, including eighteen months in Vietnam. He attended the University of New Orleans from 1967-1968. He transitioned from a full-time student to part-time student to earn money for his family as a server at several prominent restaurants in New Orleans. Two months after he became a part-time student he was drafted at the age of eighteen and two months. Like many Vietnam veterans he returned from Vietnam with Post-Traumatic Stress Disorder (PTSD) and a heroin addiction. There were little to no services available to Vietnam veterans and the culture of the country was not receptive to their return home. Following a robbery and gunfight with a fellow Vietnam veteran, also addicted to heroin and suffering from PTSD, he was convicted of felony murder in 1972. Mr. Johnston spent twenty-two years in prison and has been home for twenty-three years. He is currently serving parole for life. While he was incarcerated he founded Veterans Incarcerated. After his release, he started his own paralegal services because there were no other options available for employment. He works for several attorneys in New Orleans and uses his skills as a paralegal to benefit others working on behalf of inmates who need assistance with appeals. He is successful in his career and pays taxes. He is raising two sons, ages fourteen and nineteen, on his own. He also has a daughter and son who live out of state. All of his children are successful. Despite his service to his country, his successful transition back to the community, his contribution to the federal and state governments by paying his taxes, he will never have the opportunity to vote and participate in the democratic process before he dies.
Bruce Reilly is a forty-two-year-old Caucasian man who is the Deputy Director of Voice of the Ex Offender. He works with, and on behalf of, formerly incarcerated people regarding civic engagement and multiple policy initiatives that impact re-entry, including, but not limited to: housing, health care, education and employment. He also works to change sentencing practices. Bruce educates practitioners around the country regarding challenges faced by convicted people and policy proposals that either reduce the challenges or help people overcome them. He educates federal, state and local leadership, regardless of affiliation or status. Bruce was convicted of crimes committed in 1992 in Rhode Island and was disenfranchised under the laws of Rhode Island at the time. In 2005 he entered the community on parole and still did not have the right to vote. In 2006, the Rhode Island constitution was amended by popular ballot, and Bruce’s voting rights were restored. In 2010 he completed parole and began a twenty-five-year probation term based on his original sentence. In 2011 Bruce moved to New Orleans to attend law school at Tulane University, creating a new domicile and transferring his probation. Being subject to the laws of Louisiana, Bruce lost his right to vote. He successfully earned his juris doctorate in law in 2014. Bruce publishes articles on a regular basis and has received numerous awards because of his work. He is also the proud father of a seven-year-old daughter. Despite Bruce’s professional success, his service to the community, national recognition for his work, education and that he pays state and federal taxes, he cannot vote in Louisiana until 2035. His disenfranchisement is simply a result of moving from Rhode Island to Louisiana to pursue a law degree.
Dwight Anderson is a 40-year-old African American man who lives in New Orleans. His job is to do outreach for CeaseFire New Orleans, which aims to reduce shootings and killing in New Orleans. He has been working for CeaseFire for three years. He gives back to the community through his work and volunteers on his own to resolve conflicts, assist high-risk youth to change thinking and behaviors, and mobilizes the community to promote new behaviors around conflict resolution. He works with young people to get them the tools they need to take the initiative to become successful, get jobs, and appreciate the full support of a person who has been through what they experience on a daily basis. Mr. Anderson sees himself in the youth he encounters on a daily basis. He grew up in New Orleans and has lost forty friends and family members due to violence over the years. He was an excellent student, graduating in the top ten of his class. He received a partial scholarship to attend Southern University. After a short period at Southern he was torn between continuing his education and going to work to raise his two sons. Though he worked tirelessly at jobs to send his sons to the best schools and provide them with everything they needed, he eventually became involved in dealing drugs. He spent five months in jail for felony drug convictions and was sentenced to probation for ten years. Mr. Anderson is now a solid and exemplary member of our community, helping to reduce the culture of violence in New Orleans. He pays state and federal taxes. Despite all of this, he remains on probation and will not be able to vote until 2017.
Randy Tucker is a 57 year old African American man who has worked as a paralegal with his own business, Tucker Legal Services, since 2006. As a result of a felony conviction he spent twenty-five years in prison until he was released by the Parole Board in 2003. He is on parole until 2065. Upon his release from prison, he struggled to find a job or housing. He was ultimately hired by a lawyer, and the lawyer’s mother rented him an apartment for very little money until he could stand on his own. His work was exemplary and as a result he received referrals from other attorneys. When Mr. Tucker was released by the parole board in 2003 he was ordered to remain on probation until 2065. Although he is on parole, he does not need to meet with a parole officer. He serves as a Deacon at Israel Baptist Church and assists the church’s operational functions, coordinates youth programs, works with the Executive Board and uses his skills as a paralegal to ensure the church is compliant with its 501(c)(3) status. He is a devoted father to his daughter, son, and two step-children. He has three grandchildren. He works incredibly hard, is an exemplary member of our community, takes care of his family, serves his church and pays state and federal taxes. Despite his successful transition back into the community, because he is on probation until 2065, he will likely never have the right to vote during his life time.
Bill Vo is a thirty-one-year old Vietnamese American who works in construction and on alternative pharmaceutical pain relief in New Orleans. His partner in this endeavor is a pharmacist. He is a talented music producer and volunteers for VAYLA, a non-profit organization that is a multi-racial community-based organization in New Orleans that empowers youth and families through supportive services and organizing for cultural enrichment and positive social change. Mr. Vo sets up events, marketing, fund raising and mentors young people. He was convicted of felony possession with intent to distribute and is on inactive probation for another two years. Despite the fact that Mr. Vo is gainfully employed, serves his community and pays federal and state taxes he will not be able to vote until 2018.
Huy Tran is a thirty-one year old Vietnamese American man who lives in New Orleans and is a student at the University of New Orleans. He is dedicated to his studies in Information Technology to better himself and contribute to his community upon graduation. He spent six months in federal prison for a felony conviction of possession of crack cocaine and conspiracy to distribute drugs. Following his term, he spent time in a halfway house for six months and is now on probation. Mr. Tran began his education while he was incarcerated obtaining a GED and went to college through correspondence classes. Upon graduation he wants to start his own software company. Despite his successful transition back into the community, paying state and federal taxes, his dedication to his studies, future endeavors and his desire to give back to the community he will not be able to vote until October 2017.
Checo Yancy is an African American man who lives in Baton Rouge. He currently serves as the state president of Louisiana Citizens United for the Rehabilitation of Errants (CURE), a national organization whose mission is to help reduce crime through criminal justice reform. For the last six years he has worked as a mentor assisting inmates with the re-integration of persons back into society after incarceration with the Capital Area Reentry Coalition (CAPARC). Mr. Yancy served twenty years at Angola for a felony conviction and has been out on parole for twelve years. He will be on parole until 2029. While in prison his conduct record was so exemplary he received no disciplinary reports at all. He was a Hospice volunteer, was active in religious activities, took numerous academic courses and graduated from Northwest Missouri Community College in computer technology. Upon his release he worked as an administrative assistant for Personal Care Services before he retired. He is now an active member of the Grace and Compassion Church in Baton Rouge, a member of the Kairos Angola Advisory Board and an active volunteer with Promise Keepers – Men of Integrity. He pays both state and federal taxes. Despite Mr. Yancy’s successful transition back into the community, his good work and civic participation and his desire to give back to the community he is not able to vote in Louisiana.
Ashanti Witherspoon is a 66 year old African American man who lives in Baker, Louisiana. He is a pastor and has earned a Doctorate in Theology. He is involved with the Baton Rouge Violence Elimination Program (BRAVE) and speaks before schools, universities, churches, government and community organizations. He was convicted of a felony in the early 1970s, was imprisoned for 25 years until he was released on parole in 1999. He remains on parole. While in prison he participated in numerous educational activities. He was so accomplished and trusted that, while still in prison, he was allowed to travel across the state to speak in schools, community centers and conferences to promote alternatives to crime. In 2014, he was among a group of formerly incarcerated people who met with President Obama’s staff concerning long term incarceration, police community relations and voting rights for formerly incarcerated people. He has appeared in five documentaries. Despite Pastor Witherspoon’s successful transition back into the community, paying state and federal taxes, his good work and civic participation, he is not able to vote in Louisiana.
- Plaintiffs Class Action Allegations
Plaintiffs bring this challenge as a class action for themselves and for all others similarly situated who seek to vote in Louisiana, pursuant to Article 591 of the Louisiana Code of Civil Procedure.
This class is defined as those people who have been convicted of felonies, who are not in prison, and who are prohibited from registering to vote and voting because they are on probation or parole as a result of their conviction.
The class is so numerous that joinder of all members is impracticable. The latest numbers from the U.S. Department of Justice, Bureau of Justice Statistics reports that approximately 69,300 people in Louisiana are on probation or parole in Louisiana, with 41,761 on probation and 27,615 on parole.
The members of this class are all wrongfully disenfranchised by the same unconstitutional laws and share common questions of law and fact as well as common claims and defenses which are appropriate for proceeding as a class action.
The plaintiffs are excellent representatives of the class having participated in efforts to improve the opportunities for the class for years. Attorneys for the class have been counsel in numerous class actions in state and federal courts both in voting rights cases such as this one as well as other cases involving constitutional rights.
Defendants in this matter are:
The State of Louisiana;
The Governor of Louisiana, John Bel Edwards. The Governor is the Chief Executive officer of the State and is charged with following the constitution and laws of Louisiana and the United States under Article 4, Section 5 of the Louisiana Constitution.
The Secretary of State of Louisiana, Tom Schedler. The Louisiana Secretary of State is the chief elections officer for the State of Louisiana under Article 4, Section 7 of the Louisiana Constitution.
- THE 1974 LOUISIANA CONSTITUTION
The first Article of the 1974 Louisiana Constitution enacted a Declaration of Rights. Section 10 addressed the right to vote. Section 10 (A) states: “Every citizen of the state, upon reaching eighteen years of age, shall have the right to register and vote, except that this right may be suspended while a person is interdicted and judicially declared mentally incompetent or is under an order of imprisonment for conviction of a felony.”
The Coordinator of legal research for the Constitutional Convention of 1973 that produced the declaration of rights, Professor Lee Hargrave of LSU Law School, wrote a powerfully influential law review article on this section of the Constitution, titled “The Declaration of Rights of the Louisiana Constitution of 1974, 35 Louisiana Law Review 1 (1974). Professor Hargrave’s article has been cited as an authority seven times by the Louisiana Supreme Court and another seven times by Louisiana Courts of Appeal.
Professor Hargrave pointed out that Article 1, Section 10’s suspension of the right to vote for those convicted of a felony only applies while they are “under an order of imprisonment.” Hargrave explains what this means on pages 34-35:
“The word choice, “under an order of imprisonment,” may seem unusual; “imprisoned” would be simpler and more direct. The reason for the choice was to overcome an objection that an escapee would not be “imprisoned” and thus not within the exception. That choice of words does not prevent a person on probation or parole from voting since such a person is not under an order of imprisonment. The language contrasts with Section 20’s deliberate use of “termination of state and federal supervision following conviction for any offense,” where it was intended that completion of probation or parole requirements be met before full rights of citizenship are restored. Though the general expression used in Section 20, “full rights of citizenship,” normally encompasses voting rights, the more specific provision in this article providing for return of the right to vote when one is no longer under an order of imprisonment will prevail. In fact, under this section, the right to vote is never taken away. It is simply suspended while certain conditions are met. When those conditions no longer exist, the suspension automatically ends. There is no need for any kind of pardon or other formality before an offender regains his right to register and vote. The same applies to incompetents; once one is no longer under interdiction or no longer under a judicial declaration of mental incompetence, the right to vote returns with no formality required.”
As Professor Hargrave wrote, “That choice of words does not prevent a person on probation or parole from voting since such a person is not under an order of imprisonment.” At 34.
Further, notes from the constitutional convention indicate that on May 19, 1973, a proposed amendment which would have added the words “or is serving a probation sentence” after the word imprisonment was rejected.
Thus, people in Louisiana not in prison for conviction of a felony or not escapees from prison are guaranteed the right to register and vote under the 1974 Louisiana Constitution.
- ACT 697 OF THE 1976 LOUISIANA LEGISLATURE
Despite the Louisiana constitutional right to vote guaranteed by Article 1, Section 10, the 1976 Louisiana Legislature enacted Act 697 which overhauled the election code of Louisiana in a way that denied the right to register and vote to all those who were convicted of a felony and who were not in prison but were on probation or parole.
Act 697 of 1976 enacted Tile 18, the Louisiana Election Code and in Section 2, Definitions, subsection 2, changed the definition of who could register and vote to: “Under an order of imprisonment” means a sentence of confinement, whether or not suspended, with or without supervision, and whether or not the subject of the order has been paroled.” Page 1784 of Acts of Louisiana 1976.
This Act of the Legislature is an unconstitutional violations of plaintiffs’ right to vote guaranteed by the 1974 Louisiana Constitution Article 1, Section 10, and resulted in illegal disenfranchisement of thousands of Louisiana citizens.
- REVISED STATUTES
Act 697 of 1976 was codified as Louisiana Revised Statutes, Title 18, Section 2, subsection 8, which, in concert with Title 18, Section 102 A (1), excluded anyone on probation or parole for a felony conviction from registering to vote or voting.
These statutes are unconstitutional violations of plaintiffs’ right to vote guaranteed by the 1974 Louisiana Constitution Article 1, Section 10, and resulted in illegal disenfranchisement of thousands of Louisiana citizens.
- IMPACT ON PLAINTIFFS
As a result of Act 697 of 1976 and Louisiana Revised Statutes, Title 18, Section 2, subsection 8, in concert with Title 18, Section 102 A (1), plaintiffs’ right to vote under Article 1, Section 10 of the 1974 Louisiana Constitution have been and are being violated.
Plaintiffs, and the rest of the class they represent, are being illegally prohibited from registering to vote and voting due to the illegal actions of defendants enforcing unconstitutional laws.
- UNCONSTITUTIONALITY OF LAWS ON THEIR FACE AND AS APPLIED
“The right of qualified citizens of Louisiana to vote and to have their votes counted, inherent in our republican form of government and the democratic process, is a fundamental and constitutionally protected right,” according to the Louisiana Supreme Court in Adkins v Huckaby, 755 So.2d 206, 210 (La. 2000).
Laws which attempt to restrict fundamental rights like the right to vote must be strictly construed in favor of supporting the right to vote.
The laws at issue in this matter are unconstitutional on their face and as applied.
- RELIEF REQUESTED
WHEREFORE, Plaintiffs pray that after due proceedings are had in this case, that there be judgment in their favor and against the defendants as follows:
One. Declaring Act 697 of the 1976 Louisiana Legislature unconstitutional in so far as it impermissibly restricts and or impinges on the right to vote by illegally expanding the definition of who is denied the right to vote in Louisiana in violation of the Louisiana Constitution of 1974, Article 1, Section 10;
Two. Declare LSA RS 18: 2 (8), in concert with LSA RS 18:102 A (1), unconstitutional in so far as it impermissibly expands the definition of who is denied the right to vote in Louisiana in violation of the rights of plaintiffs under the Louisiana Constitution of 1974, Article 1, Section 10;
Three: Certify this matter as a class action;
Four. Issue a preliminary injunction, restraining, enjoining and prohibiting Defendants, their officers, agents, employees and counsel, and those persons in active concert with them from denying anyone on probation or parole after conviction of a felony from registering to vote and voting in Louisiana;
Five. In due course, issue a permanent injunction in the form of the preliminary injunction prayed for herein;
Six. Award plaintiffs reasonable attorney fees and all costs of these proceedings;
Seven. Award plaintiffs all other general and equitable relief that may be appropriate under the circumstances.
July 1, 2016
Counsel for Plaintiffs:
William P. Quigley #7769
Loyola University New Orleans College of Law
7214 St. Charles Avenue
New Orleans, LA 70118
RONALD L. WILSON (#13575)
701 Poydras, Suite 4100
New Orleans, Louisiana 70139
PH: (504) 525-4361
FAX: (504) 525-4380
Ilona Maria Prieto, Bar. No 29279
Voice of the Ex-Offender
2022 St. Bernard Ave.
New Orleans, LA 70116
PH: (321) 444-5940
Anna Lellelid, La Bar No. 35204
Po Box 19388
New Orleans, LA 70179
(504) 224-9670 (c)
Rob McDuff (pro hac vice application pending)
767 North Congress Street
Jackson, MS 39202
Verification of Petition
State of Louisiana Parish of Orleans
Before me personally came and appeared the undersigned who swore the facts in this petition are true and correct to the best of his knowledge.
Date: _________________ Affiant: ___________________________________
Sworn to and subscribed before me this _____ day of June, 2016.
State of Louisiana
Through the Attorney General of Louisiana
1885 North Third Street
Baton Rouge, LA 70802
Governor John Bel Edwards
Attention Matthew Block, Executive Counsel
Baton Rouge, LA 70804
Louisiana Secretary of State Tom Schedler
8585 Archives Ave.,
Baton Rouge, LA 70809
Saudi Arabian Human Rights Lawyer Waleed Abu al-Khair Continues to Fight for Social Justice from Prison
By Bill Quigley
“Even from prison, you can still light a candle”
Waleed Abu al-Khair began to practice law in Saudi Arabia in 2007. He quickly earned an international reputation as one of the most respected human rights lawyers in one of the world’s most repressive countries. Within a year he joined in a high profile critique of the ruling monarchy. He repeatedly and openly advocated for democracy. He controversially defended the human rights of women, dissidents, and prisoners targeted by the authorities. Before long, the government called his stands for human rights terrorism. They harassed him, surveilled him, shut down his social media and finally put him in prison, where he has remained since 2014. Even from prison, though, he refuses to back down and continues to publicly press for freedom and human rights. This is his story.
First, a bit about Saudi Arabia, which has been a close ally of the US since the 1940s. Saudi Arabia is tightly ruled by a hereditary monarchy and is a scary place to be a free human being, much less a human rights lawyer. Freedom House rates Saudi Arabia as one of the worst in the world in civil liberties and political rights. Torture is common, according to Amnesty International. The country ranks third globally, right behind North Korea, in denying freedom of the press, frequently arresting not only protestors but also those who report on protests. Human Rights Watch notes government authorities continue to arbitrarily arrest, try and convict peaceful dissidents. Recent “antiterrorism” laws allow the government to jail anyone who demands reform or engages in dissent.
Waleed Abu al-Khair was born in Jeddah, Saudi Arabia in 1979. His family includes a number of judges and Imams. As a young man he memorized the Quran and graduated from King Abdulaziz University in 2003. He began to practice law in 2007. He set up his office with a well-known Saudi human rights lawyer, Essam Basrawi. Basrawi was one of ten people, known as the Jeddah reformists, who was arrested for trying to set up a human rights association.
Immediately upon starting his legal career, Abu al-Khair joined other activists and released a petition titled Parameters of the Constitutional Monarchy calling for the Saudi Royal Family to change the country’s rule from absolute monarchy to a democracy based on free elections. Within weeks, the government revoked his scholarship to study abroad.
Waleed Abu al-Khair founded the globally well-respected Monitor of Human Rights in Saudi Arabia (MHRSA) in 2008. Also in 2008, Abu al-Khair organized the country’s first 48 hour hunger strike for prisoners of conscience in Saudi Arabia which led to sit-ins and demonstrations. According to the BBC, activists report there are as many as 30,000 political prisoners in Saudi Arabia while the government says there are only 10,000.
In 2009, he became a defense lawyer for several of the “Jeddah reformists” who were arrested along with Basrawi after trying to establish a human rights organization. The same year he received his Masters of Jurisprudence from Yarmouk University in Jordan.
Abu al-Khair volunteered to represent Samar Badawi in 2010 after she had been jailed for “disobedience” of her father by, among other actions, fleeing to a woman’s shelter to avoid 15 years of his abuse. According to Human Rights Watch Saudi Arabia denies women the right to obtain a passport, marry, travel, or access higher education without the approval of a male guardian like father, husband, brother or son. Abu al-Khair established a vigorous online campaign to support her during the trial. Now an acclaimed human rights activist in her own right, Samar Badawi married Abu al-Khair soon after she was released.
Abu al-Khair later took on the case of Raif Badawi, the brother of Samar Badawi and a prominent Saudi blogger, who was charged with insulting religious authorities and was ultimately sentenced to 10 years in prison and 1000 lashes.
While he was becoming well known for his advocacy, his own government harassed him and the US, though supportive behind the scene, refused to publicly try to protect him.
In 2012 he was awarded the Olof Palme Prize for “his strong, self-sacrificing and sustained struggle to promote respect for human and civil rights for both men and women in Saudi Arabia.” The government did not allow him to attend the ceremony. Around the same time, he and his wife, Samar Badawi, began hosting weekly gatherings in their home where small groups of young dissidents could discuss important issues which are not allowed to be debated publicly.
Waleed Abu al-Khair acknowledged how difficult it was to be a social justice lawyer in an article he wrote around this time. “There are many rich people here because of our oil – and this oil is all we have. But a lot of people do suffer and live a hard life. And they know if they raise their voices, the consequences will be very serious. It’s not that people don’t want change; it’s that they don’t have the ability to bring it about….I have been told many times by United States officials that good relations with Saudi Arabia are vital for them. So they cannot back any political activism – the best they can do is show support for some kinds of social change. Backing people who want to change the system is out of the question. We know that we will get no support from outside in trying to change our country….It is not easy to be an activist in Saudi Arabia. I have been taken into custody for investigation many times; I have been beaten; my wife is banned from leaving Saudi Arabia; and my Twitter, my Facebook account and my website are blocked. I have no doubt they want to put me in prison and one day this will happen – the authorities are just waiting for a good opportunity.”
Finally, after only 7 years of practice, the government jailed Waleed Abu al-Khair was jailed for his human rights advocacy. He has been in jail ever since. Human Rights Watch reported he was convicted and sentenced to 15 years in prison on July 6, 2014 on vague charges stemming from his peaceful human rights advocacy by a special Saudi terrorism court including “Inflaming public opinion and disparaging and insulting judicial authority,” “founding an unlicensed organization,” “distorting the kingdom’s reputation,” and other charges based on his peaceful human rights advocacy.
In jail Abu al-Khair became a father and has been repeatedly been moved around to different prisons, some 600 miles away from his family. In September 2015, the United Nations Working Group on Arbitrary Detention called for the release of Abu al-Khair and 8 others from Saudi prisons. Keeping him in jail, the UN stated “forms a part of both continued and recent persecution and crackdown on human rights activists in Saudi Arabia.”
While imprisoned, Waleed Abu al-Khair was awarded the prestigious 2015 Ludovic-Trarieux Human Rights Award, first given to Nelson Mandela.
Samar Badawi reflected on what it meant to have her husband Abu al-Khair in prison. “To my fellow Saudi Arabians I say that my husband has been imprisoned so that you could live free. He stood up to the tyrants to claim your rights; he faced up to his oppressors telling them he would not tolerate their repression. Remember that history does not forget, it will exalt those who have fought for freedom and cast aside the memory of those who succumbed to a life of humiliation and servitude.” She also addressed their child, Joud, who was born shortly after he was imprisoned. “My last words are to my baby daughter, Joud. Do not feel sad because you were born while your father was behind bars. Be proud instead and hold your head high, for the whole world envies you for the father you have – even if his homeland has turned against him. The future awaits you to continue your father’s struggle so that you make him even more proud than he is now. You will grow up to be a role model yourself, soon to become known as Joud the free, Joud the defiant, Joud the resilient: Joud Waleed Abu al-Khair.”
Though the US and the UN make noises about the widespread human rights violations by Saudi Arabia, in the end the country’s oil and regional power silence most critics.
As he prepared to enter prison, Abu al-Khair wrote: “In Saudi Arabia, we live a special challenge – the challenge to be free and to own yourself, your inner being, as well as to be a human rights defender in the face of a political power that employs all of its resources and capacity to dominate the judiciary so as to send you to jail and silence your voice…. As long as the oil keeps flowing, the world will turn a blind eye if Saudi Arabia continues to crack down on freedom and human rights…. Because freedom is cultivated, its seeds are those who have sacrificed a lot and have made the sky the limit to their sacrifice. They created a sense of inner peace for themselves that only they can understand. That is why I shall be flying high with them, even from behind bars. In prison I will never need a window that opens out to the sky. I do not need a door to explain to the world why I am there in prison. What I truly need lies within your conscience and every free conscience. There will always be free souls in this world who will not be silenced by oil!…The exception here involves a type of very spiritual people who suffer a lot in the eyes of others but are jubilant and overtly happy deep within. They feel like this simply because they cling onto great hopes – they are resilient in the face of all hardship. They are supported by human rights activists from all over the world and feel overwhelmed by their kindness and solidarity. One of them once said, in front of a courtroom, after being threatened to be sent to prison by the presiding judge: “Even from prison, you can still light a candle.”
Waleed Abu al-Khair has been nominated by several international human rights organizations for the first ever American Bar Association International Human Rights Award.
Please consider signing the Amnesty International online petition demanding his freedom. You can be sure he is working to free all political prisoners.
By Bill Quigley. Bill teaches law at Loyola University New Orleans and can be reached at email@example.com
Azadeh Shahshahani is a practicing human rights lawyer who has worked for over a decade in the US South. She was the first woman of color to lead the National Lawyers Guild and has been deeply involved in the movements for immigrants’ rights including shutting down the Stewart Detention Center and repealing the discriminatory educational bans affecting undocumented students in Georgia, dignity for Muslim-Americans, a just US foreign policy, and Free Palestine.
Azadeh Shahshahani was born in Tehran, Iran, four days after the 1979 Iranian revolution. The Iranian people overthrew the unelected, US-supported, Shah of Iran who had ruled the country since a 1953 CIA coup which eliminated the democratically elected President of Iran, Mohammad Mossadegh.
Her parents named her Azadeh, which means free-spirited in Persian, signifying the hopes they had for the revolution. Her family included many doctors. Her father as well as several aunts, uncles and cousins were all in the medical profession.
She grew up with war. The Iran Iraq war started when she was one and it did not end until she was nine years old. Readers may recall the US supported Saddam Hussein in that war giving Iraq billions of economic aid, plus weapons and intelligence to fight Iran.
“I remember that my family had created this space underneath the stairs with a blanket hanging where the four of us (my parents, sister, and I) would go, sit, and hold hands when there were sirens to warn us that Saddam’s missiles were coming.
“There were shortages and constant fear. Many fled the southern parts of Iran to seek safety in Tehran and became refugees in their own country. Young men went to fight on behalf of Iran and were killed or returned maimed. Things got especially bad during the last year of the war where he was hitting Tehran constantly (after he was done inflicting severe damage on the southern part of Iran).
“The war had a significant impact on our collective psyche. I could feel it even as a young child.”
When she was 15, her family immigrated to the US for greater educational opportunities for her and her sister, settling in Memphis, in the middle of her sophomore year of high school.
“Though I had a privileged immigration experience because I was able to come with my parents and with documents, I still felt deeply traumatized and uprooted.” Because of the role the US played in overthrowing the democratically elected government in Iran and supporting Iraq in the war against Iran, “I developed a keen interest in US foreign policy and the destructive role the US government has played recently and historically in many countries. My background and upbringing made me into a semi-revolutionary, but it was college and law school that finally sealed my fate!
Human rights led her to law school, even though she originally planned to be a doctor and had been selected for a spot in the University of Michigan Medical School. As an undergraduate she majored in Middle Eastern Studies and history. “I became involved with various social justice and human rights organizations and realized that my true passion was fighting for human rights. I thankfully had the support of a mentor at the time, Professor Kathryn Babayan of the Near Eastern Studies Department, who encouraged me to follow my heart. Much to my parents’ chagrin and disbelief, I postponed medical school for a year and applied to Michigan law school.”
A 2004 graduate of the University of Michigan Law School, Shahshahani also has a Masters in Modern Middle Eastern and North African Studies from Michigan. During law school, she remembers “one day, I was roaming in the basement of the law school where the student organizations had office space and I came upon a poster about the National Lawyers Guild. It described the organization’s work in support of social justice movements, how it had come under attack during the McCarthy era and how it had survived. I found that extremely inspiring. Our NLG chapter also organized a few of us to go to the Yale RebLaw conference that year. NLG had such a large presence at the conference that I thought that the conference was organized by the NLG! That experience got me hooked to the NLG.”
At Michigan she met her future husband, who earned his PhD in Electrical Engineering from Michigan. They have now been married almost 15 years.
After graduation from law school, they moved to Raleigh North Carolina where her husband was hired to teach at North Carolina State.
“I had no connections to North Carolina whatsoever. Honestly, for a while, it was very rough. I was in a state of loss and desperation. I did some volunteer work for some organizations. But I also noticed that there was a large Muslim and Middle Eastern community living in the state. Given that this was 2004, at the height of the post-9/11 repression, I was expecting to find an organization or program to provide legal support to the community. But there was not any. So I thought maybe I could help start something. I approached the ACLU of North Carolina with the idea of a program to provide the community with the legal support tools they needed. We got funding for the project which enabled me to do a series of “Know Your Rights” presentations at various mosques and community centers around the state. I also helped put together a network of attorneys to help represent community members when they were approached by the FBI or faced discrimination.
Three years later, they moved to Georgia when her husband got a teaching job with Georgia Tech. There he gained national renown when he led a team which invented a device which allowed paraplegic people to live more independently steering a wheelchair or operating a computer.
Shahshahani was asked to serve as the Interim Legal Director for the ACLU of Georgia. “But my heart was still with the work I was doing before. These were also times of terror for immigrant communities in Georgia. ICE launched a number of police collaboration programs and detention centers such as the Stewart Detention Center. The Georgia legislature also notoriously put forth and passed several anti-immigrant bills including an Arizona copycat bill. The ACLU of Georgia allowed me to start a project focused on working with Muslim and immigrant communities. I served as director of the Georgia National Security and Immigrant Rights for 7 years. I took on litigation, human rights documentation, coalition and movement building, advocacy at the legislature, training of attorneys, and public education.” With the ACLU she helped publish a 2012 report on private prisons for immigrants in Georgia, and a 2014 report on hyper-enforcement against immigrants in Georgia.
She recounts one of her human rights victories as one on behalf of Mrs. Valentine who was prevented access to a courthouse in Douglasville, Georgia in 2008 because she was wearing a headscarf. Not only was Shahshahani able to help secure a settlement for Mrs. Valentine from Douglasville, but she was also able to implement a statewide policy change through accompanying Mrs. Valentine and her husband to the then Georgia Supreme Court Commission on Fairness and Equal Access to the Courts, a body composed of current and former judges. “The judges were horrified by the treatment that Mrs. Valentine had suffered at the hands of one of their colleagues.” A new Georgia policy allows people of faith to wear the religious headgear of their choosing at the courthouse.
During her time in Georgia, Shahshahani restarted the Georgia chapter of the National Lawyers Guild. Founded in 1937, the NLG is the nation’s oldest organization of progressive lawyers and legal workers fighting for social change. Soon she was elected the Southern Representative to their national board and was active in the United People of Color Caucus (TUPOCC) of the NLG. “TUPOCC has played a large role in making the NLG become an anti-oppressive organization.”
In 2011, Shahshahani was elected President of the National Lawyers Guild “The NLG has served as my political home. NLG members have been some of my strongest mentors, role models, and friends. There is no other organization like the NLG serving as a base for legal activists. It provides a space to do political legal work and be connected to other movement lawyers, legal workers, law students, and jailhouse lawyers.”
With the NLG, Shahshahani participated in international human rights delegations to Haiti, Honduras, Palestine, post-revolutionary Tunisia and Egypt, and Venezuela. She also served as a member of jury for human rights tribunals on Mexico and the Philippines.
In January 2016, Shahshahani started a new job as Legal and Advocacy Director with Project South. Project South is a Southern-based leadership development organization dedicated to movement building. In her new position, she provides legal support to social justice movements with a focus on immigrants’ rights and defending Muslim and Middle Eastern communities against state repression.
She has been recognized with the 2012 Advocacy Award from the American Immigration Lawyers Association among others. Her writings have appeared in Al Jazeera America, the Atlanta Journal Constitution, Huffington Post, The Guardian, MSNBC, and Truthout.
“As an immigrant and a Muslim, I am intimately familiar with the human rights issues I am working on. I know justice comes about through grassroots mobilization and movement building. My work as a social justice lawyer and activist is to help support the movement. Winning even small victories for the movement gives me great satisfaction. I get frustrated when we have to fight battles just to maintain the status quo because of current political dynamics.
“I am inspired by freedom fighters throughout history, particularly Palestinians fighting for their human dignity in the most oppressive of circumstances. On my office wall I have pictures of Mohammad Mossadegh, the democratically-elected prime minister of Iran who was toppled in a 1953 CIA-engineered coup because he dared to nationalize Iranian oil and Forough Farrokzad, a pioneering Iranian woman poet who died tragically young but who has left her mark on Iranian literature and the feminist movement.
“In order to sustain myself, I exercise for 1.5 hours every day. Every other day, I run outside. Breathing fresh air and seeing the nature is energizing. I know my limits and try to take at least one day every weekend where I stay home and rejuvenate. I try to eat healthy home-cooked meals and I usually go out with friends once a week and we enjoy a meal together. I love food and spend considerable time cooking and reading about new restaurants and cafes.
“I recommend people read Something Fierce: Memoires of a Revolutionary Daughter. This is a fascinating story about the life of a Chilean young woman who lives with her family underground in various Latin American countries during repressive times in the 1970s and 1980s. She then evolves into a revolutionary herself. It is a captivating story about perseverance and stamina in unbelievably frightening and suffocating times.
“When social justice law students ask me for career advice, I tell them to stick with it. It can be very challenging at the beginning especially and at various points throughout your career financially, emotionally, politically. To get your foot in the door, I would also advise trying to devise a fellowship with an organization you have worked with during law school. Become involved with a social justice organization that provides you with mentorship and a sustaining network; for me, that has been the NLG. The NLG provides great support for progressive folks trying to make it through legal spaces without getting demoralized. Please join and come check us out in NYC, August 3-7!!!”
When critics ask her why she challenges the injustices of the US, she responds, “I live in this country and as such, am most effective at fighting the injustices inflicted by the US government on people here and around the world. This government in particular needs to be held accountable in light of its massive military power, disastrous neoliberal agenda, and history of repression of movements domestically and internationally. I also find inspiration in in this poem by the great Persian poet Sa’adi (which is inscribed on the entrance of the UN):
Human beings are members of a whole,
In creation of one essence and soul.
If one member is afflicted with pain,
Other members uneasy will remain.
If you have no sympathy for human pain,
The name of human you cannot retain!”
Poverty will not be stopped by people who are not poor. If poverty is stopped, it will be stopped by poor people. And poor people can stop poverty only if they work at it together. The lawyer who wants to serve poor people must put his skills to the task of helping poor people organize themselves.2
Empowerment lawyering with organizations of the poor and powerless differs from corporate lawyering or criminal defense lawyering in purpose, substance and style. It also differs from traditional public interest lawyering in significant respects.3
The purpose of empowerment lawyering with community organizations is to enable a group of people to gain control of the forces *456 which affect their lives.4 The substance of this lawyering is primarily the representation of groups rather than individuals.5 This style calls for lawyering which joins, rather than leads, the persons represented.
Community organizing is the essential element of empowering organizational advocacy. Unless the lawyer recognizes that advocacy with groups cannot proceed without community organizing, there can be no effective empowering advocacy. In fact, if an organization could only have one advocate and had to choose between the most accomplished traditional lawyer and a good community organizer, it had better, for its own survival, choose the organizer.6
Community organizers are in an important position to observe and evaluate lawyers in community organizations. Because lawyers ask doctors and engineers to help shape and evaluate their legal product, lawyers should also consider the insights of community organizers in developing approaches to lawyering with organizations where the goal is empowerment of the organization’s members. This article considers the observations and reflections of three community organizers, none of whom are lawyers, who have worked with hundreds of community groups.7 They were interviewed concerning the role lawyers play in community organizations, how they help and how they hurt the empowerment of organizations. These reflections offer insight on the role of the law and lawyers in working with empowering community organizations.
This article concludes with themes highlighted by the organizers and some observations about how those themes apply to lawyering for empowerment of community organizations.
*457 I. REFLECTIONS BY COMMUNITY ORGANIZERS
- Ron Chisom
Ron Chisom, an African-American community organizer, has worked over three decades with dozens of community organizations in the southern United States, including public housing tenants, people opposing police brutality, neighborhood preservationists, and civil rights groups.8 He consults with numerous groups and is a national trainer with The People’s Institute for Survival and Beyond.9 Here are his reflections on the role of lawyers in community organizations:
Lawyers have killed off more groups by helping them than ever would have died if the lawyers had never showed up.
Most organizations when they come up with a problem – they turn it into an issue and then they get stumped and then they call a lawyer. A lawyer steps in, in what is essentially a technical role and shows some real authority and expertise by even simple things like taking notes which most people in the community do not do.
People in the organization look up to the lawyer because of their writing skills, their reading skills, their education, their speaking skills and it really makes the lawyer look like they are doing something. People then tend to transfer their interest in the issue and the problem to the lawyer to have the lawyer solve it and this creates dependency.
Total dependence on a lawyer by an organization is not good because most lawyers are “career oriented.” They will usually help the community, but they also later hurt the community by making money off the contacts in the community, by political aspirations and by leaving the community stranded. In many cases, they actually leave the community in a worse condition had they never been involved.
Most lawyers do not understand about organizing. Lawyers do not understand that the legal piece is only one tactic of organizing. It is not the goal.
*458 In my 25 years of experience, I find that lawyers create dependency. The lawyers want to advocate for others and do not understand the goal of giving a people a sense of their own power. Traditional lawyer advocacy creates dependency and not interdependency. With most lawyers there is no leadership development of the group.
If lawyers get involved, they create a lot of problems. Most lawyers have never been through the consistent frustration of community building with its petty disputes, confusion, personality problems and the like. Most lawyers get frustrated with that, have a low degree of tolerance with people problems, and will walk away from the effort of community building.
The legal dimension of community organizing is only one piece of the overall strategy. Commonly, lawyers are not clear about strategy. They don’t understand community, they don’t understand organizing, they don’t understand leadership development.
Lawyers, if they understand the process, can play a major role in the development of the community. If lawyers understand the dynamics of community leadership and development, this understanding can also work to reduce the frustration level of the lawyer because the people involved will not call the lawyer for every little problem that they have in the struggle.
As an example, when the organization goes to court or to confront the government, the people must play a major role in the choices of where to go and how to go. The people must also participate in the investigation and speaking out on the issue.
At a certain level, groups will need a lawyer. What the groups really need is a lawyer with understanding and an analysis of the community group – who they are, what are their problems and what is their history. If the lawyer does not understand how the group fits into the larger part of society and community, the lawyer will only see this organization as just another case. This is particularly true when the group itself does not understand the big picture either.
Big problems develop when the lawyer becomes the leader. The lawyer ends up almost as a god to the group and that will kill off the momentum and emotionalism that brought the group that far. The people lose interest as the lawyer becomes the momentum. The lawyer can stimulate the group, pacify the group or walk out at any time. This effectively kills the leadership and power of the group.
The lawyer is “credentialized.” The lawyer is structured, disciplined, succinct, and trained. He or she is closer to and understands the system better than anybody in the group. Then, the lawyer becomes the focal point of the group and becomes leader of the group. More mature groups will not let this happen, but when it does happen the collective power of the group is transferred from the individuals to the lawyer. The group is then susceptible to any action or lack of action that the lawyer takes rather than the direction and leadership being given by the organization.
*459 In tactics, the legal piece is only one tactic of many. There is the legislative, legal, demonstration, picketing, fund-raising, community building, leadership development and many other pieces. Lawyers do not usually understand that.
Lawyers tend to focus only on the case and want the organization to bend itself to the case rather than the other way around. Lawyers think in terms only of what will help or hurt the case, but they do not understand that “the case” is not the point of building up the community.
Another problem is that most community lawyers, especially white lawyers, do not want to confront or agitate the power structure. This is primarily because of the role of racism in all of these conflicts. Lawyers, particularly white lawyers, are trained to understand and be comfortable with the system even when they criticize it. Almost all lawyers, including community lawyers, want to succeed in the system. They want money, power, political advantage, respect or whatever their individual dreams are. Therefore, confronting the system or raising hell makes the lawyer very uncomfortable because it is not how the lawyer was trained to deal with the system, and the lawyer, without realizing it, is challenged individually because the lawyer is part of the system.
The white legal system perpetuates the white power system. Reliance on that system is a contradiction to the development of collective power in a community organization. I also find that black lawyers also have serious problems confronting the system because they don’t really want to challenge the system because black lawyers gain advantage and reap rewards from the system so, therefore, they cannot challenge it the way it needs to be challenged.
The lack of understanding is not confined to lawyers because it is frequently that the group itself and many times inexperienced organizers themselves do not understand the demands of leadership development.
Leadership development is the key to solving problems locally. If the lawyer does not understand leadership development and the group does not understand leadership development then certainly leadership development is not going to happen. There may well be some flurry of activity on a problem, perhaps even the problem will be solved, but the community will be left with as little, or sometimes even less power and understanding of power than they had before they started the fight.10
- Wade Rathke
Wade Rathke is Chief Organizer of Local 100, Service Employees International Union (SEIU) and one of the founders of the Arkansas *460 Community Organization for Reform Now (ACORN).11 He has been an organizer for twenty years, first with the Welfare Rights Organization movement, and later as a founder and chief organizer for ACORN. ACORN has created a national organization of low and moderate income members, with active local organizations in twenty states. He speaks about the experiences of the organizations with which he has worked:
The fundamental challenge in finding good organizational lawyers is to find out whether or not a lawyer is willing to see their role as similar to an organizer or researcher who is employed by an organization as a helper toward the process of helping the organization gain power. Empowerment must be the lawyer’s goal; not breaking the new legal ground which changes a particular statute or right.
I remember a top lawyer who worked with us in the early days of the ACORN organization who used to take new volunteer lawyers and the first thing he would make them do, for as long as a month, was make them run the mimeograph machine and put out mailings. He would take them door to door canvassing and train them like organizers. He believed that unless lawyers for organizations understood that there is different training to work with organizations than the training they had in law school then there would always be problems. Lawyers have to be able to understand that organizing an issue is a process where an individual problem changes and becomes a political issue.
ACORN has found that the lawyers who are most accessible to organizations tend to be ones who come out of the union lawyer tradition. In union lawyers there is still a strong culture that says the organization’s membership must bear the control of final decisions. Because that tradition is not as common in either civil rights or in poverty law, we have tended to find that we do better in working with lawyers who come out of the union tradition of membership and organizational leadership and service than those coming out of classically trained legal services lawyers who, we have found, more want to create law than create power.
One thing that you just do not find much in lawyers is people who are sensitive enough to understand organizations and their *461 dynamics well enough to be able to look at the structures of law and figure out how you can attack some laws to open up vital organizational opportunity and authority. You know, it is not necessarily a colorful area of law, but there is a tremendous amount of work that needs to be done in areas like access to public records and opening up payroll and other deduction systems.
In the ACORN experience we have seen substantial legal precedents in law won through organizational activity joined with lawyers. At the same time, there is a level of what some call “gonzo law” that is essential to allow organizations to pursue campaigns. This law may pursue new ideas in the law but may not pursued to create precedent at all, and in some non-organizational view may be almost totally frivolous. As an example, it is certainly not news that it is a common organizational tactic in trying to pursue issue campaigns, that, when you are unable to win all the objectives of the campaign and it has been a fierce struggle, the organization may try to exit the campaign by filing a suit. The filing of a lawsuit may make it appear that the issue is not totally lost and gives the losing issue an afterlife where something may or may not come down the legal avenue, but it at least gives it a public viability that it is being pursued. If something comes of it, great, if not, it was a way to get out of a losing situation.
This is a tactical use of law. There are some lawyers who are comfortable with this sort of use of the law, but I think it is a rare talent.12
- Barbara Major
Barbara Major, an African American organizer, works with numerous low income women’s groups in the southern United States.13 She is also a trainer with the People’s Institute for Survival and Beyond.14 She has suggested the following:
Empowerment is when a person or a group of people know who they are, accept who they are, and refuse to let people make them anything else.
Lawyers, like any other profession, can be a really good resource in the community that is seeking to empower itself. An excellent resource and always a necessary one. Especially when you look historically in terms of the need – not only to change attitudes, but *462 to change policy and legislation to really make access available to resources for everybody. I think lawyers have always played a key role, especially in the civil rights movement, the worker’s rights movement, and the women’s rights movements in this country.
I think one of the things that lawyers have to understand is the reality of the community that it deals with. I think oftentimes lawyers come in with their own reality, their own world view, and think or assume that this is everybody’s reality and they just start moving along. That is not the case because a lot of times, especially when you are dealing in a struggling community, their reality is very different from the reality that people who have been educated have, or their world view is very different from the people at the bottom that they will be working with.
People use to work “in community” but I think now people should think a little more about working “with community.” This means lawyers have to learn how, with all of their skills, to journey with the community. This journey has to involve the community really getting a sense of who they are, in the sense of beginning to understand their own power. In working with community the wisdom or the knowledge of the lawyer does not outweigh the wisdom and the knowledge of the community, about itself especially.
I think also when you talk about lawyers you must help them have a reality check, in my experience lawyers don’t often do that. You know, they often believe in the system – that the system is going to work because it’s the right thing to do. I do not think they understand that, when you are dealing with challenging power, that the system works on the side of power. The lawyers do not realize they need another tool to challenge the system, one that lawyers do not know about, and that is the power of the community. Because no matter how good you might be in court, the power of the people in the street weighs mighty heavily on the decision of the power brokers, sometimes more heavily than the law itself. One lawyer, I don’t care how good she is, how well she argues or whatever, the power brokers will take that same lawyer and beat her to death one day, unless, the people in the street say this is not legal, this is not fair.
I think a lot of times lawyers have come into the community and only created another entity to be dependent on. Their communities begin to believe that all they have to do is bring their problems to court and they forget that they must continue to organize and educate the people. I think the lawyers too often create another entity to be dependent on so people will lay back and just think well “I’ll just sue ‘em.” This will not lead to permanent change. Because even if the community wins the suit, what are they going to do the next time there is a problem? Sue again?
Problems can be headed off if the powerful know there is an organized community willing to fight them. That is better than the best suit.
Another problem is when the lawyer comes in and just takes over and becomes the leader and the spokesperson and it disempowers *463 the community. The lawyer becomes the one everyone wants to interview and everybody wants to talk to. Then the media and the powerful don’t ever talk directly to the people any more. The community’s struggle becomes the lawyer’s struggle and not the people’s struggle.
Who becomes the spokesperson is real important because the community starts out so weakened. It’s not destroyed, but it’s weakened. The community needs to feel its own power and continue to be built back up in the sense that says you not only have the right to speak for yourself, but you can speak for yourself. The community needs to be allowed to demonstrate as many times as possible its capabilities and abilities to do and to be itself, its own power source, its own leadership. I find it real destructive when outside people speak for the community. It is the simple folk that sustain us as a people – not some lawyer or nun or hot shot organizer who comes in and does works in the community. It is very important for the community to feel its own power, and part of that power is the ability to speak for itself.
If lawyers want to work with the community, they must first do some thinking. If they come in with a sense of not only just coming in to say they want to work, they want to help the community, but coming in and saying that I, too, have something to gain from this, then I think the community will welcome them. Because, then the building up will not be one-sided. As the community builds its power and self confidence, the lawyer will also reach new heights. I know as an organizer when I see the community moving up and I am connected to them, it’s like hey, I am moving too. You know they are not leaving me behind and I can’t leave them behind. So we are moving together. It’s a different kind of relationship.
It is not a matter to me of where you live, or whether you are poor yourself. The lawyer can live in a nice house, as long as they are struggling for folk in that community to have nice houses too. See, I don’t think poverty is a damned virtue. It’s your becoming a part of that human family is what you are really becoming a part of in that community. I have had problems out of all kinds of lawyers – Black male, Black female, White male, White female and everything in between. So, their race and gender does not matter to me. It is the ability of that person to see the human capacity in the community. Unfortunately, a lot of people don’t see it – all they see is that depressed community that I am coming in and giving something to.
Only when they understand that they will not only be the only one giving, but they will also be receiving, then it can roll. And it will be a growing and learning process for everybody.15
*464 III. THEMES IN COMMUNITY EMPOWERMENT LAWYERING
- The primary goal is building up the community.
As Chisom suggested,
If the lawyer does not understand leadership development and the group does not understand leadership development then certainly leadership development is not going to happen. There may well be some flurry of activity on a problem, perhaps even the problem will be solved, but the community will be left with as little, or sometimes even less power and understanding of power than they had before they started the fight.16
In his very first meeting with the residents of a neighborhood, Joe Lewis, a community organizer hired by the Atlanta Project as a coordinator for the area, was asked by residents what he was going to do for the community. He said, “I don’t know. You haven’t told me yet.”17
As one author has suggested, “Organizing in its simplified form is people working together to get things accomplished. Organizing is about people taking a role in determining their own future and improving the quality of life not only for themselves but for everyone.”18 Educate, activate, and build the membership of the organization. These are the goals of organizational empowerment lawyering.19
- Lawyers can disempower groups by creating dependency
Empowerment is a term that has been given several slightly differing conceptual meanings. In all meanings, it involves an attempt *465 to give the acted upon the right to decide for themselves or act in their own interests. What does traditional public interest lawyering say to the goal of empowerment? Not much.20
There are two traditional methods of public interest lawyering: providing individual legal services to the indigent, usually in a government-funded setting, and providing reform or impact litigation which targets particular issues for focused high intensity litigation. Neither of these traditional forms of public interest lawyering is well suited to empowering. Both focus the power and the decision-making in the lawyer and the organization which employs the lawyer. The lawyer decides if she will take the case. The lawyer decides what is a reasonably achievable outcome. The lawyer and her employer decides how much time and resources can be committed to the effort. Both approaches individualize or compartmentalize the problems of the poor and powerless by not addressing their collective difficulties and lack of power.
While both approaches employ many hard-working and dedicated advocates, even when successful in achieving their defined mission they define for themselves, empowerment will not occur. Consider the following example:
In 1983 a group in a suburban area contacted the Citizens Clearing-house for Hazardous Waste (CCHW) for guidance on opposing the construction of a solid-waste landfill. The people of this suburb were primarily older residents plus a small but growing number of professionals. All told, the group had two or three hundred members of various backgrounds. CCHW gave the group some basic advice: Organize. Put out a fact sheet. Go door to door to educate the public. Petition. Get people involved.
In the months that followed, the group called CCHW frequently for advice. Each time they were given the same advice: action. The group seemed to agree, yet took no action. At the outset they had hired a prominent lawyer from the area. He was well respected in the county and had numerous official contacts. The group relied upon his suggestions and would not take any action that contradicted them. Effective methods like canvassing door to door, putting out flyers, and petitioning he considered “undignified.” The group, he said, should not engage in any activity that might upset any court action.
*466 Within a year, the ribbon-cutting ceremony was held for the unlined landfill the group had formed to oppose. Of the groups’s hundreds of members, ten or fifteen carried signs that day – their first public demonstration. Their fight had been lost by their lawyer. Anticipating a loss of the court fight, he had been calling for a lined landfill.
In the process the group accumulated legal fees amounting to nearly $300,000. The group’s only courtroom victory came after they had lost their major fight. By dropping a subsequent suit against the county, they were able to recover $75,000 of their legal fees from the county.
Today, the landfill is leaking and the group is now taking that message to the streets with some success. At last they are learning from their mistakes.21
If empowerment is the end, creating dependence on a lawyer is not the means.22
- Litigation is only one of many means to the end.
The clash in problem-solving approaches between the lawyer and the organizer highlights one of the inherent difficulties in using litigation in an empowering fashion. Consider the following:
Lawyers and organizers tend to approach problems differently, with often marked implications. For example, consider an intersection where the lack of a stop sign is causing traffic hazards and threatening children. A lawyer would solve this problem by going to court to get the stop sign put into place. From this process people either do not know how the stop sign got there or learn that lawyers produce change. Both results aggravate people’s perceptions of their powerlessness, which is disastrous from an organizer’s perspective. In contrast to the lawyer, the organizer would knock on all the doors in the neighborhood, organize a meeting of interested people, and help them collectively deal with the problem. They would probably hold a mass demonstration, meet with a city official, and successfully pressure her to provide the stop sign. From this experience, people in the neighborhood would learn that they can have *467 power if they organize, and coordinate their efforts. Because so many individuals participated in producing the sign, nearly everyone in the neighborhood would learn this lesson. Suddenly an aspect of the neighborhood is the product of the residents’ personal actions.23
This example sharply contrasts two ways to approach the same problem. If the goal is getting a stop sign, then litigation may well be the superior method to use. If the goal is taking, developing, and sharing power, then litigation is not effective.24
Other than the circumstances discussed below, it is a good rule to avoid litigation in empowerment advocacy. The goal of this advocacy is to help the group and its members take, develop, and share their rightful power. Litigation usually does not further that goal.25 There are literally scores of other actions that groups can take that will highlight the problem, call for solutions, and involve the community members in leading their own fight.26 At its worst, litigation on behalf of an emerging organization of people may well be harmful to the growth and development of the organization.27
*468 When lawyers are confronted with a wrong, they are tempted to draw on their litigation skills. Also, people tend to seek out lawyers for their litigation skills as opposed to their organizational assistance.28 In advocacy with an organization, litigation can be considered helpful in three situations: defending the organization and its members;29 serving the organization’s development;30 and terminating causes from which the organization has no other way to exit.31
Law reform litigation should be undertaken only reluctantly in organizational advocacy and only after considerable thought by the organization. Litigation should be avoided in most other situations because lawyering and organizational development do not often go together. Indeed, in a 375 page guide on organizing for grassroots leaders, organizer Si Kahn devoted four sentences to legal action.32 Martin Luther King, Jr. also pointed out that litigation was not the desired path of organizational campaigns: “Whenever it is possible, we want to avoid court cases in this integration struggle.”33 Many lawyers have tried to achieve justice for poor and powerless people and organizations and victims of discrimination. As even most successful lawyers will ruefully admit, there was often more victory in the courtroom than in reality.34
One of the weaknesses of litigation is the inherent limitation of the judicial system when called upon to produce social reform.35 The *469 judiciary is far more disposed to and capable of stopping something from happening than it is to force something positive to occur. If the organization needs to stop something and can figure no other way to do it, or, better yet, is trying all other ways to stop it, then litigation may prove helpful if properly constrained and directed. However, the real work of organizational development is to take the members’ rightful share of power and redistribute it. The judicial system has fundamental problems with such positive actions.36 And even where the judicial system takes a modest step or two forward, it can only make change and was probably prodded to those modest achievements in the first place, with significant support from other parts of society.37 *470 Thus, litigation, particularly litigation as the sole approach to a problem, will not likely be effective in solving the problem.
Another difficulty in utilizing litigation in empowerment is the clash of cultures between the legal system and the powerless or group members.38 This clash is founded on the fact that what is important in the context of a lawsuit is often not at all important in the real world of people.39 Everything from dress codes to language patterns, from the race and gender roles to the emphasis on the written word, not to mention the obvious role that wealth and power play in all phases of litigation, work against the poor and powerless role in litigation.40
Further, even when reform-minded lawyers participate on behalf of the poor and the powerless, too frequently a gap in understanding and common priorities prevents even infrequent, well-intentioned litigation from succeeding in actually empowering those on whose behalf the litigation is brought.41 This failure is a result of the different priorities that litigation has, by its nature, opposed to the priorities of helping people gain power.42 As Professor White ironically notes in her analysis of the empowerment shortcomings of public interest litigation,
The gap between what poor people want to say and what the law wants to hear often seems enormous. Legal education does not *471 prepare lawyers for this daunting task, and the profession does not encourage or reward such efforts. Reform-oriented lawyers have been taught to read statutes, question bureaucrats, and analyze policy. They have not learned to listen and talk to poor people …
Therefore, in practice, welfare litigators often subordinate their clients’ perceptions of need to the lawyers’ own agendas for reform. They rarely design litigation to respond to their clients’ own priorities and ideas. Rather, litigation is designed to effect broad reforms that will benefit the whole class of welfare recipients …. Not only do clients feel incapable of speaking and acting freely in the strange language and culture of the courtroom; in addition, their own lawsuits are often framed to render their perceptions and passions irrelevant to the legal claims.43
Thus, traditional public interest reform, or impact litigation, is of very limited value in actually helping the poor and powerless. While identifiable progress may well be made on a particular issue, the progress will be made by lawyers in an environment unsympathetic to poor people. If empowerment is the end, this type of legal public interest work is rarely the means.
- Learn community organizing and leadership development.
The challenge of the community organization process is to help the people recognize common challenges and fashion common, workable strategies to address the common problems. While most people, including the powerless, are fairly cognizant of common challenges to themselves and their communities, it takes strategy and skill to develop realistic, achievable approaches to combat the problems.44 Without such community organizing, there can be spontaneous protest, a flare of activity, and minimal progress. But this progress will be short-lived and likely reversed once the immediate crisis passes, unless there is good community organizing in between these moments of passion.45
Friedmann recognizes community organizers by their French description as animateurs.46 Their challenge is to “animate” or breathe *472 life into the soul of the community and move it to appropriate action. These animateurs or organizers can be members of the powerless community; indeed, the very best organizers often are community members. However, the essence of the organizer is an understanding of how to empower people.47
In the context of an organization of poor or powerless people lawyering has as its goal the reallocation of power from those who have an unfair share to those who lack their rightful share.48 The organization lifts the concerns of the individuals together beyond the concerns of any one individual. Individual desires and energies are fused to secure greater power, voice, and influence for those who are individually undervalued by the present system. Therefore, lawyering involves not advocacy for individual interests, but advocacy with a group of people organized to reclaim what is rightfully theirs, their own power. That is empowerment. Lawyers interested in learning more about organizing and leadership development have a variety of sources from which to choose.49
*473 5. The community must be involved in everything the lawyer does.
Martin Luther King, Jr. once said,
[W]e’ve got to understand people, first, and then analyze their problems. If we really pay attention to those we want to help; if we listen to them; if we let them tell us about themselves – how they live, what they want out of life – we’ll be on much more solid ground when we start ‘planning’ our ‘action,’ our ‘programs,’ than if we march ahead, to our own music, and treat ‘them’ as if they’re only meant to pay attention to us, anyway.50
There is a tendency to consider work with organizations as volunteer or pro bono work that is somehow governed by different dynamics than work for paying clients.51 It should not be so considered. If the lawyer takes the community organization’s problem as her own task and begins to independently prepare and execute a legal strategy, the organization immediately loses control of its own actions. No lawyer would consider independently creating and implementing a legal strategy for a big corporation. Community organizations demand the same respect. Since empowerment by definition means controlling one’s own destiny in as many ways as possible, even the *474 most well-intentioned lawyer who works independent from the organization is undercutting the life of the organization.
The organization should work with the attorney to decide what the attorney should be involved in, how the legal strategy should proceed, and when the lawyer’s assistance is needed. If a legal strategy is developed, the organization should decide what are the first steps taken, what forum should those steps be taken in, what resources should be committed to the task, and what realistic goals and timetables should be communicated to the members of the organization. This control of the legal agenda by the organization is at the heart of advice provided to organizations by those with experience in dealing with lawyers. Here we will consider a few things to keep in mind and discuss with your lawyer from the outset:
You should control key decisions on your case. Use your lawyer for advice. Some lawyers automatically discuss the handling of their case with their clients; others do not. If your lawyer seems to be making important decisions without consulting you, it may be time to get another lawyer. Remember: You hired the lawyer – you are the boss.
Your lawyer’s help or legal action can be a useful component to your local organizing. But don’t let your lawyer decide your organizing strategy. Most lawyers are not experts on organizing. …
Many people think once they have hired a lawyer they no longer need to participate in the local group because the lawyer has the problem under control. Nothing could be further from the truth.52
- Never become the leader of the group.
Consider the advice of another veteran organizer: “You don’t need a lawyer to talk to politicians for you. Hiring a lawyer to deal with politicians would be a waste of your money. You can say it better than them – from the heart and from your own experience.”53 Empowerment means people seizing control of their own life choices. Following a lawyer is not empowerment. As was once said so succinctly, “ t he lawyer should be on tap, and not on top.”54
- Be willing to confront the lawyer’s own comfort with an unjust legal system.
Interests that have pushed themselves onto the stage have been organized, have been part of a movement, have, in short, been *475 groups; … Groups did not gain ground because the legal profession “discovered” them, or because reformers in and out of government took up their case on theoretical grounds. They gained ground by exerting pressure. It was the squeaky wheel that got the oil.“55
Ultimately every group of people who seeks power must face those with the power. Seeking a rightful share of power means demanding the return of that power from the powerful. This is confrontation. It can happen in the legislatures, on the streets, in the courts, in the media, or in the banks, but it is confrontation. It is certainly one of the options that those without power must consider.56 The lawyer for an organization can assist in the inevitable confrontation by either of two approaches: shut up and get out of the way and/or help the group discuss the best options to provoke or defend the resulting confrontation.
The lawyer’s comfort level with the current legal, political, economic and social system comes to the forefront at certain points in organizing, even when there is confrontation. Lawyers participate and reap benefit from these systems even while apparently challenging the them. Lawyers profit by their education in and participation in the legal system, even while they self-identify themselves as “standing outside the system.” This participation cannot be denied but need not paralyze the lawyer of an organization seeking its rightful share of power. This participation must first be consciously recognized as an investment in the current system and then, to the degree the lawyer can do so, it must be consciously set aside while assisting the organization in confronting those who unjustly have their power.
In analyzing options in confrontation strategies, the lawyer’s comfort level with some types of confrontation and lack of comfort with others must be identified and, to the degree possible, set aside. Since some lawyers have substantial experience in controlled legal confrontation, there is the tendency of the lawyer to try to control and direct the confrontation to conform to the confrontation style to which the lawyer is accustomed.57 This tendency usually seeks for *476 more polite, ordered confrontation that follows the rules of polite, ordered society. This tendency is usually a mistake for those who have been shut out of the polite, ordered society. The point of confrontation is not to persuade the quiet and ordered powerful to generously provide a donation of excess power, but to assist the powerless in finding their own voice to demand what is justly theirs.
Subjecting the powerless to the rules of the powerful in a confrontation over the just reallocation of power is contradictory and counterproductive. This is not to say that thoughtless stridency is the best approach to confront the powerful, rather the lawyer must be prepared for the group to consciously adopt and utilize methods of confrontation which the lawyer would never choose for herself.
Take the simple example of deciding whether to be quiet when ordered to do so in a public meeting of the city council. Continuing to speak beyond the allotted time or on topics not allowed on the agenda or directly to members of the government who do not wish to be so addressed will likely result in being requested or ordered to sit down and be quiet. The polite, ordered response of those who follow the rules would be to reluctantly sit down and ponder other ways to get the point across. For the purposes of development of the group, it may well be most effective to continue to speak and either be physically expelled or even arrested58 to demonstrate the unwillingness of the powerful to even give an airing to the group’s concerns. The lawyer’s tendency to seek ordered results has to be subordinated to the development of progress on the organization’s goals.
In working with organizations, the goal of all action, legal and nonlegal, is to empower the members of the group so they are able to be as self-directed as possible. This means assisting the members to work jointly to take and share their rightful power. There is a new role for the lawyer, a role not taught in law schools and a role not prized by the legal profession as a whole. Put politely as possible, *477 the legal profession views such practice of law with great anxiety.59 A further challenge involves the entire concept of de-lawyering current systems so the members of the organization can better learn to advocate for themselves.
The lawyer has a delicate and paradoxical role to play in empowerment advocacy. The primary role is to help the organization and its members take, develop, and share their rightful power. In contemporary society, the lawyer holds a position of power partly because the law has drawn away from regular people and become a system unto itself, unaccessible to a nonlawyer, with its own language, and its own liturgies of practice. In this sense, the ignorance of the client enriches the lawyer’s power position. Thus, the lawyer, even the well-intentioned public interest lawyer, has a share of power that is only the result of others not having access to it. The lawyer pursuing the goals of empowerment advocacy is called to a higher form of advocacy than “doing for” her client. Rather, the lawyer is called to assist her client to escape the need of being anyone’s client and learning to advocate for herself. This demands that the lawyer undo the secret wrappings of the legal system and share the essence of legal advocacy. Doing so lessens the mystical power of the lawyer but, in practice, enriches the advocate in the sharing and developing of rightful power.
- Be wary of speaking for the group.
There are only two instances when it is appropriate for a lawyer to speak to the media about the organization. First, if the organization asks the lawyer and specific instructions on how to proceed, and second, in an emergency. The lawyer should not speak for the organization unless that is the only way the organization’s position will be reported, all the organization’s members are unavailable, or the organization’s message is already decided and communicated to the lawyer. Consider how the powerful deal with the media. Does a lawyer for Proctor & Gamble assume she has the authority to comment on anything for Proctor & Gamble without explicit permission and direction? No, and neither should the organizational lawyer.
A working organization should have a media committee and the lawyer could be a great help to that committee by having work and home numbers for all members to give to the media when they call *478 the lawyer.60 The lawyer for the organization must herself consider the media implications of whatever efforts she will engage in on behalf of the organization and help the organization think through these issues.61 The primary goal must continue to be whether the action will help or hinder the organization’s development in taking and sharing power.
- Understand how much the lawyer is taking as well as giving.
It has been suggested that “the challenge of responding to others, especially across great distances of life experience, inevitably leads us to confront more deeply the uncertainty-the possibility-that is ourselves.”62 Anyone who has worked with vital community organizations in a fight against those who oppress the members of the organization knows it can be one of life’s peak experiences. Along the way it will also likely be one of the most frustrating experiences in which they will ever participate.
The essence of working with a community organization is harnessing the powers of the individuals involved into a team. When the lawyer is part of that team, and the team wins an uphill battle, there is no big fee, no precedent-setting case, no pro bono award, that can ever substitute for the enduring sense of fulfilling friendship that binds those who were there and met the challenge.
The lawyer gives, no doubt about it. But the lawyer receives, too, no doubt about it.
- Be willing to journey with the community.
As Barbara Major said,
People used to work “in community” but I think now people should think a little more about working “with community” which means lawyers have to learn how, with all of their skills, to journey with the community. This journey has to involve the community really getting a sense of who they are, in the sense of beginning to understand their own power ….63
*479 Only when they understand that they will not only be the only one giving, but they will also be receiving then it can roll. And it will be a growing and learning process for everybody.64
There is no need to expound upon this quote, it is poignant and says all that needs to be said.
Learning to join rather than lead, learning to listen rather than to speak, learning to assist people in empowering themselves rather than manipulating the levers of power for them, these are the elements of lawyering for empowerment. By mastering their elements, a lawyer can help people join together and control those forces influencing their daily lives. By helping people in a community organized process to recognize common challenges, they can work together to formulate common strategies to combat these challenges.
|Assistant Professor and Director of Gillis Long Poverty Law Center, Loyola University School of Law, New Orleans, Louisiana. The author wishes to thank Anthony Alfieri, Steve Bachmann, Ron Chisom, Pam Karlan, Martha Mahoney, Barbara Major, Jack Nelson, Wade Rathke, Florence Roisman, and Elizabeth Scott for their help.
Many of these ideas were first presented at the Joint Conference on Lawyering presented by the University of Liverpool Law School and the University of California at Los Angeles School of Law at Lake Windermere, UK.
|Stephen Wexler, Practicing Law for Poor People, 79 YALE L.J. 1049, 1053 (1970). Professor Anthony Alfieri says this quote is an “autocite” for writers about advocacy with poor and powerless people. There is a very good reason it is cited so much. It is because there are so few examples of quotable legal writing about poor people and organizing.
|Traditional public interest lawyering is called “regnant lawyering” by Gerald Lopez, as opposed to “rebellious lawyering” which seeks to empower subordinated clients. Gerald Lopez, Reconceiving Civil Rights Practice: Seven Weeks in the Life of a Rebellious Collaboration, 77 GEO. L.J. 1603, 1609-1610 (1989). This “regnant lawyering” is criticized as well-intentioned individual and even class-wide problem solving by liberal and progressive lawyers in offices isolated from organizational activity like community organization, community education, self-help campaigns, and other forms of grass roots mobilization. Id.
Lopez goes further in Training Future Lawyers to Work with the Politically and Socially Subordinated: Anti-Generic Education, 91 W. VA. L. REV. 305, 358-386 (1989). He indicates one of the reasons why lawyering for empowerment or “rebellious lawyering” is not prevalent is that even “[t]hough millions in this country live in social and political subordination and though lawyers have worked to help challenge these conditions, law schools only rarely have understood their job to include designing a training regimen responsive to this situation and this task.” Id. at 306. Lopez takes up this task and proposes a curriculum for legal education and training of students to work with, and for, the poor and powerless. Id. at 376-78.
Finally, in REBELLIOUS LAWYERING: ONE CHICANO’S VISION OF A PROGRESSIVE LAW PRACTICE (1992), Lopez illustrates the potentials and pitfalls inherent in lawyering with sketches of struggles faced by those who take both law and justice seriously.
See also Louise G. Trubek, Critical Lawyering: Toward a New Public Interest Practice, 1 B.U. PUB. INT. L.J. 49 (1991) and Ruth Buchanan & Louise G. Trubek, Resistances and Possibilities: A Critical and Practical Look at Public Interest Lawyering, 19 N.Y.U. REV. L. & SOC. CHANGE 687 (1992).
|Some well-intentioned persons may ask: Why do people need to gain power over their own lives? Why can’t we just help give them what they need? The answers to these questions are discussed in Joel Handler, Community Care for the Frail Elderly: A Theory of Empowerment, 50 OHIO ST. L.J. 541, 544 (1989). Handler points out that even if we were to provide more funds for social programs, enact better laws, and provide many more dedicated lawyers to help them, powerless people still need to work on the imbalance of power in our society or they will, by definition, remain powerless and trapped. Id. at 557. Granting codes of legal rights and protection to the powerless, without more, is fruitless. People need power to use the legal system. Id.
|See discussion of group representation in Luke W. Cole, Empowerment as the Key to Environmental Protection: The Need for Environmental Poverty Law, 19 ECOLOGY L.Q. 619, 663-670 (1992).
|That is not to say that good community organizing alone guarantees a continuously healthy, vibrant movement of actively engaged people. See, for example, the story of the growth, development, and ultimate decline of an excellent organization, the Congress of Racial Equality, in AUGUST MEIR & ELLIOTT RUDWICK, CORE: A STUDY IN THE CIVIL RIGHTS MOVEMENT 329 (1975).
|The observations included in this article are taken from transcripts of oral interviews, not written statements by the organizers (transcripts on file with the author).
|Examples of groups with which Mr. Chisom has been involved, in developing organizational campaigns include: New Orleans City-Wide Tenants Council (improvement of public housing in New Orleans, Louisiana); Treme Community Improvement Association (low income neighborhood preservation); Parkchester Tenants Association (attempting to prevent demolition of low income housing); Fishermen and Concerned Citizens Association of Plaquemines Parish, Louisiana (wide range of civil rights and economic justice issues including survival of independent oyster fishermen, securing running water for an all African-American town, and reclaiming thousands of acres of expropriated land in rural Louisiana).
|The People’s Institute for Survival and Beyond was founded in 1980 and is a national multiracial, antiracist collective of veteran organizers and educators dedicated to building an effective movement for social change. The Institute conducts “undoing racism” and training workshops around the United States. The Institute is a nonprofit organization operating out of New Orleans, LA.
|Interview with Ron Chisom national trainer with The People’s Institute for Survival and Beyond (Jan. 26, 1993) (transcript on file with author).
|ACORN was launched as Arkansas Community Organizations for Reform Now in 1970 by organizers from George Wiley’s National Welfare Rights Organization. It has since changed its full name to the Association of Community Organizations for Reform Now, keeping the acronym ACORN. ACORN now has community organizations operating in twenty states.
Local 100 of the Service Employees International Union is based in New Orleans and, though a separate organization, is an outgrowth of ACORN’s organizing efforts with low wage workers in industries in Boston, Chicago and New Orleans.
A good history of ACORN, Rathke, and the organizational challenges each has faced, can be found in GARY DELGADO, ORGANIZING THE MOVEMENT: THE ROOTS AND GROWTH OF ACORN, 63 (1986).
|Interview with Wade Rathke, co-founder of Arkansas Community Organization for Reform Now (ACORN) (Jan. 28, 1993) (transcript on file with author).
|Representative of the groups Major has worked with are the following: Clergy and Laity Concerned (peace and justice issues); New Orleans City-wide Tenant Council (public housing); Kuji Center (holistic health and economic justice for low-income area of New Orleans); and many other women’s groups in the southeastern United States.
|See supra note 9.
|Interview with Barbara Major, Trainer with the People’s Institute for Survival and Beyond (Mar. 8, 1993) (transcript on file with author).
|See supra note 10 (citing quote in text).
|Atlanta Project: Empowering the Powerless, FOCUS, Mar. 1993, at 3. The Atlanta Project is a community-based initiative launched by former U.S. President Jimmy Carter to improve the lives of residents of the city’s most depressed neighborhoods. The project goal is to empower the traditionally powerless.
|John O’Connor, Organizing to Win, in FIGHTING TOXICS: A MANUAL FOR PROTECTING YOUR FAMILY, COMMUNITY AND WORKPLACE 25 (Gary Cohen & John O’Connor eds., 1990) [hereinafter FIGHTING TOXICS].
|Cole, supra note 5, at 688. Cole cites three similar questions for environmental advocacy:
1. Will it educate people?
2. Will it build the movement?
3. Will it address the root of the problem, rather than merely a symptom? Id. These questions were adapted from Michael Kazin, The Peace Movement: Signs of Life … And Intelligence?, SOCIALIST REV., Sep-Oct. 1987, at 113, 115.
Like many others, I believe that if lawyering educates, activates and builds the organization, there is no need to focus on the root versus the symptom of the problem, since the root problem is the powerlessness of the people. Educating, activating, and building, inherently address the root problem. Many organizers think the actual problem being addressed is irrelevant, be it a stop sign or a toxic waste dump. They see the problem as powerlessness and everything else is a campaign to learn how to empower.
|But see Paul R. Tremblay, Rebellious Lawyering, Regnant Lawyering, and Street-Level Bureaucracy, 43 HASTINGS L.J. 947 (1992). Tremblay rightly sees some conflict between those who advocate for greater use of individual client narrative or voice and those who seek more of a collectivist approach to lawyering. Tremblay would no doubt accurately describe the point of view adopted by this article as collectivist and then point out that this approach can be seen as substituting longer term justice quests for short term legal remedies. Id. at 950.
|Sanford Lewis, Your Legal Recourse, in FIGHTING TOXICS: A MANUAL FOR PROTECTING YOUR FAMILY, COMMUNITY, AND WORKPLACE, 209, 231-32 (Gary Cohen & John O’Connor eds., 1990).
|As one author states:
Two major touchstones of traditional legal practice-the solving of legal problems and the one-to-one relationship between attorney and client-are either not relevant to poor people or harmful to them. … The lawyer for poor individuals is likely, whether he wins the case or not, to leave his clients precisely where he found them, except that they will have developed a dependency on his skills to smooth out the roughest spots in their lives.
Wexler, supra note 2, at 1053.
|Steve Bachmann, Lawyers and Social Change, 13 N.Y.U. REV. L. & SOC. CHANGE 1, 6 (1985).
|See SI KAHN, ORGANIZING: A GUIDE FOR GRASSROOTS LEADERS, 56 (1982). Kahn writes: “Advocacy may make real improvements in people’s lives. It may change the operating conditions of agencies or institutions. But it does little to alter the relationship of power between these institutions and the people who deal with them.” Id.
|Indeed, Steve Bachmann, who has written frequently on this subject, recently summarized his perspective as follows:
Litigation validates the perception that ordinary people of low and moderate income have nothing to do with law reform and social change, and that such reform and change result only from efforts of well-heeled attorneys and judges. Litigation perpetuates the notion that significant change occurs “by magic,” because ordinary people of low and moderate income frequently do not know or care what happens in the court rooms. When ordinary people perceive that they can change nothing or that they have to rely on “experts” or “magic” to solve their problems, they come to believe they are powerless: … which is to say, their original condition of limited capability for societal change is only exacerbated. The deplorable conditions of the status quo are intensified, not ameliorated.”
Steve Bachmann, The Hollow Hope: Can Courts Bring About Social Change?, 19 N.Y.U. REV. L. & SOC. CHANGE 391, 391-2 (1992) (book review).
|See GENE SHARP, THE POLITICS OF NONVIOLENT ACTION: THE METHODS OF NONVIOLENT ACTION POLITICAL JIU-JITSU AT WORK, 117, 423 (1973). Sharp lists 198 methods of nonviolent protest and persuasion. The activities described range from petitioning to picketing to mock funerals to boycotts to civil disobedience. Not one of the 198 activities requires a lawyer’s involvement. It is a great cookbook of activities for organizers.
|Wexler, supra note 2, offers a number of valuable observations on the role of a lawyer in developing or inhibiting organizational development. His observations on litigation for individuals are particularly appropriate and ring true for organizational development as well:
Two major touchstones of traditional legal practice-the solving of legal problems and the one-to-one relationship between attorney and client-are either not relevant to poor people or harmful to them …. The lawyer for poor individuals is likely, whether he wins cases or not, to leave his clients precisely where he found them, except that they will have developed a dependency on his skills to smooth out the roughest spots in their lives.
Id. at 1053.
|As Richard Abel states: “Clients (especially individuals) consult lawyers in the first place because they have been trained to defer to and depend on professionals, and it is difficult in a few brief encounters, to overcome a lifetime of socialization in the culture of professionalism.” Richard Abel, Lawyers and the Power to Change, 7 LAW & POL’Y 5, 9-10 (1985).
|Bachmann, supra note 25.
|Joel Handler sees several areas of indirect organizational assistance possible through litigation: publicity, fundraising, consciousness raising, legitimacy. JOEL HANDLER, SOCIAL MOVEMENTS AND THE LEGAL SYSTEM 210 (1978).
|Bachmann, supra note 25.
|See KAHN, supra note 24, at 52, 56, 187, 188.
|As quoted in GERALD ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? 139 (1991).
|See ROBERT H. MNOOKIN, IN THE INTEREST OF CHILDREN: ADVOCACY, LAW REFORM, AND PUBLIC POLICY (1985) which analyzes several major impact litigation campaigns and contrasts the occasionally substantial results achieved in the courtroom with the actual fairly unimpressive results achieved for the plaintiffs.
This also seems to be what Marc Galanter is saying when he observes that “[r]ule change is in itself likely to have little effect because the system is so constructed that changes in the rules can be filtered out unless accompanied by changes at other levels.” Marc Galanter, Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change, 9 LAW & SOC’Y 95, 149 (1974).
|The most comprehensive discussion of the inherent limitations of the legal system is found in GERALD ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? (1991). This excellent treatise examines the role of litigation in a number of social movements, including civil rights, abortion, women rights, environment, reapportionment, criminal rights, and prison reform. In each case, Rosenberg makes a powerful argument that the role of the court in bringing about social change was not only exaggerated in popular understanding, but that reliance on litigation actually was counterproductive in bringing about the change. Rosenberg sees three inherent constraints which frustrate any attempt to seek social reform through the courts: the need for legal precedent, the dependence of the judiciary on popular political support, and the lack of implementation power by the courts. Id. at 336-37. Although these constraints can be overcome, there are almost never overcome by litigation alone. Id. at 342. They are only overcome when social reform is proceeding because of historical, political, or economic change already underway. Id. at 337. The book is best summed up in its final paragraph:
American courts are not all-powerful institutions. They were designed with severe limitations and placed in a political system of divided powers. To ask them to produce significant social reform is to forget their history and ignore their constraints. It is to cloud our vision with a naive and romantic belief in the triumph of rights over politics. And while romance and even naivete have their charms, they are not best exhibited in courtrooms.
Id. at 343.
|There are several reasons for this. Consider the civil rights struggle and women’s rights struggle which are frequently pointed to as areas where traditional public interest litigation has been successful. Rosenberg suggests that the litigation victories in these areas were not in fact successful. ROSENBERG, supra note 35, at 227. It was not until mass movements, lobbying, and legislation on the state and national levels that success actually occurred. Id. at 123. Rosenberg posits that it is because the courts have neither the “purse” nor the “sword” that they are extremely limited in their capacity to produce change. Id. at 15-21.
Galanter makes a similar observation on the limits of the court’s power to bring about change:
The low potency of substantive rule-change is especially the case with rule-changes procured from courts. That courts can sometimes be induced to propound rule-changes that legislatures would not make points to the limitations as well as the possibilities of court-produced change. With their relative insulation from retaliation by antagonistic interests, courts may more easily propound new rules which depart from prevailing power relations. But such rules require even greater inputs of other resources to secure effective implementation. And courts have less capacity than other rule-makers to create institutional facilities and re-allocate resources to secure implementation of new rules. Litigation then is unlikely to shape decisively the distribution of power in society.
Galanter, supra note 34, at 149-50.
|William H. Simon, Visions of Practice in Legal Thought, 36 STAN. L. REV. 469 (1984). Simon sees such a situation as the foundation for any successes the civil rights movement can claim through the courts:
Surely it is not controversial to insist that the achievements of the civil rights movement, including the decisions of the Warren Court, are due to a conjunction of judicial decision-making (in which some of the most important initiatives were taken at the trial court level), electoral politics, and popular mobilization.
Id. at 498-99.
|The idea of a “clash of cultures” between the legal system and the powerless on whose behalf it is used is best articulated in Lucie White, Mobilization on the Margins of the Lawsuit: Making Space for Clients to Speak, 16 N.Y.U. REV. L. & SOC. CHANGE 535, 542-45 (1987-88).
|See Anthony Alfieri, Reconstructive Poverty Law Practice: Learning Lessons from Client Narrative, 100 YALE L.J. 2107, 2118-30 (1991) and his criticisms of current poverty lawyering, including those methods based on the reform or impact litigation method.
|White, supra note 38, at 542-46.
|Tremblay, supra note 20, at 949.
|Consider the following observations by Professor White on the role that law plays and can play in the lives of the poor and powerless:
Legal remedies that are designed by lawyers to impose improved conditions upon the poor aren’t likely to do much to challenge subordination in the long run. In many cases, lawyer-engineered remedies will not work as intended. Even in the rare cases where such remedies do work according to plan, they still do not challenge the lived experience of subordination-the experience, that is, of other people controlling the terms of one’s life. Yet when legal remedies respond to strategic needs that emerge as poor people mobilize themselves, those remedies can, indeed, make a difference.
|White, supra note 38, at 544-45.
|See SAUL ALINSKY, RULES FOR RADICALS 63-80 (1971).
|John Friedman writes:
[T]he likelihood of a truly spontaneous organization of the poor is very small. The only unmediated action among disempowered households is mutual help and an occasional burst of protest …. But precisely because they lack formal organization, protest movements are easily contained. Local leadership may be coopted, state responses to social demands may be predicated on the promise of community compliance, and more overtly repressive measures may be used to discipline both the community and its leadership.
JOHN FRIEDMANN, EMPOWERMENT: THE POLITICS OF ALTERNATIVE DEVELOPMENT, 143 (1992).
|Id. at 144.
|As one example, consider India, where there is a group called SPARC (Society for the Promotion of Area Resource Centers) which advocates with groups in the areas of housing, women’s issues, and drug abuse. Its method of operating is based on six general principles:
1. Locate the central features of the crisis as identified by the community facing the crisis;
2. Understand how the state perceives that crisis;
3. Share these insights with the community and debate the formulations of elements necessary for a solution;
4. Create an information base for participatory research;
5. Initiate professionals to take part in formulating alternatives with the communities;
6. Initiate a campaign for change: mass demonstrations, publication of information, and workshops; negotiate meetings with government.
Id. at 143-44, nn.4 & 5.
Also consider the following summary finding of a comprehensive study of many community organizations:
The process of translating a provocative issue into collective action, in some cases supplemented by promotional or facilitative inputs, seems to involve: an appreciation by potential community group members that collective action is both possible and likely to be productive; individuals’ motives being translated into a collective will to act; the identifying and mobilizing of group members; and the development of knowledge about the extent of the problem to enhance the members’ commitment and capacity to act.
HUGH BUTCHER ET AL., COMMUNITY GROUPS IN ACT: CASE STUDIES AND ANALYSIS 251 (1980).
|Who has the power? Consider the view of FRANCES FOX PIVEN & RICHARD A. CLOWARD, POOR PEOPLE’S MOVEMENTS: WHY THEY SUCCEED, WHY THEY FAIL (1977). The authors state that “[c]ommon sense and historical experience combine to suggest a simple but compelling view of the roots of power in any society. Crudely but clearly stated, those who control the means of physical coercion, and those who control the means of producing wealth, have power over those who do not.” Id. at 1.
|See FIGHTING TOXICS, supra note 18, which contains chapters on organizing, corporate research, working with the media, and use of lawyers; and a good little booklet by MARY EILEEN PAUL, ORGANIZATIONAL DEVELOPMENT TOOLS (1993), published and distributed by Resource Women, 733 15th Street NW, Suite 510, Washington, D.C. 2005. TOOLS includes activities and exercises for developing and revitalizing an organization.
FIGHTING TOXICS gives an overview of the process of organizing in the environmental field but would also be very useful to anyone who wishes to learn more about the theory and practice of community organizing. TOOLS is more centered on the interior growth of an organization but is also useful for those who want to know more about the basic building blocks of effective organization of people. There is also an excellent short article describing how lawyers fit into community organizing. See Michael Fox, Some Rules for Community Lawyers, 14 CLEARING-HOUSE REV. 1 (1980).
|Lucie White, From a Distance: Responding to the Needs of Others Through Law, 54 MONT. L. REV. 1, 16 (1993) (quoting Martin Luther King, Jr.), reprinted in JOELLE SANDER, BEFORE THEIR TIME: FOUR GENERATIONS OF TEENAGE MOTHERS, ix (1991).
|Edgar and Jean Camper Cahn made a disturbing observation that lawyers in private commercial practice are somewhat more likely to respect the wishes of their clients than lawyers in traditional public interest practice. See Edgar S. Cahn & Jean Camper Cahn, Power to People or the Profession?-The Public Interest in Public Interest Law, 79 YALE L.J. 1005 (1970). They found in legal services law offices:
a greater tendency to manipulate, to usurp group decision-making functions, to use clients to fit the private agenda of the lawyer than is to be found in private practice. There are several contributing causes which induce lawyers for the poor to cease to be accountable to clients and to aggrandize their role as “social engineers” and self-styled reformers. It is not clear whether they feel free to do so because the clients are poor or members of minority groups or because legal services programs have a monopoly which makes it impossible for the client not to concur in any decision by the attorney. All contribute: the arrogance of youth, the monopoly power of attorneys, and condescension based on race and class. None are consistent with the traditional lawyer-client relationship.
Id. at 1035-36.
|Lewis, supra note 21, at 214.
|Lewis, supra note 21, at 210.
|Quote made by an organizer at Environmental Racism Workshop at Xavier University in New Orleans, December 5, 1992.
|Lawrence Friedman, Claims, Disputes, Conflicts and the Modern Welfare State, in CLAIMS, CONFLICTS AND THE WELFARE STATE 260 (1981).
|See PIVEN AND CLOWARD, supra note 48, at xi, xii. “[P]opular insurgency does not proceed by someone else’s rules or hopes; it has its own logic and direction. It flows from historically specific circumstances: it is a reaction against those circumstances, and it is also limited by those circumstances.” Id. Piven and Cloward suggest that history proves mass defiance and disruptive protest are often preferable to other forms of political activity in order for the poor to make gains against those who hold power.
|This process of the lawyer selecting and reshaping the needs and desires of the poor and powerless client is called “interpretive violence” by Anthony Alfieri. See Alfieri, supra note 39, at 2126. He defines interpretive violence as being based on three common practices in traditional public interest lawyering: marginalization, which establishes the client’s inferiority; subordination, which changes the lawyer-client relationship into subject-object; and discipline, which actually ends up excluding the client’s own story or narrative from the legal process. Id. at 2125-30. Lawyers who unintentionally practice like this, strip clients of their individuality and unwittingly push organizations away from discovering and acting upon their own unique character and plans for action. Id.
|There is a rich literature on the virtues of being arrested rather than going along with an unjust system. For example, Henry David Thoreau said: “Under a government which imprisons any unjustly, the true place for a just man is also in a prison.” See HENRY DAVID THOREAU, ON THE DUTY OF CIVIL DISOBEDIENCE, reprinted in WALDEN AND ON THE DUTY OF CIVIL DISOBEDIENCE, 245 (Collier Books 1854). “It costs me less in every sense to incur the penalty of disobedience to the State, than it would to obey.” Id. at 247.
|Simon, supra note 37. Simon describes the posture of the legal profession towards those advocating for what he describes as “the politics of popular mobilization” as “sheer anxiety and even terror.” Id. at 494.
|See KAHN, supra note 24, at 235-256, for ideas on how an organization develops media strategy and decides who should speak. See also Peter Obstler, Working with the Media, in FIGHTING TOXICS, supra note 18, at 147.
|See CHARLOTTE RYAN, PRIME TIME ACTIVISM: MEDIA STRATEGIES FOR GRASSROOTS ORGANIZING 4-34 (1991), for another excellent discussion of media and organizational development.
|Lucie E. White, From A Distance: Responding to the Needs of Others Through Law, 54 MONT. L. REV. 1, 18 (1993).
|See supra note 15 (interview with Barbara Major).
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