The United States' debate of civil right to counsel has been shaped by the constraints of domestic law. The public discussion of the proposed civil right to counsel in the U.S. has typically treated the issue as one of basic fairness. The racial impact of the lack of civil counsel -- an issue that does not raise constitutional concerns absent evidence of discriminatory intent -- often remains unarticulated. Yet international law continues to recognize such racial disparities, intentional or not, as human rights violations, and the International Convention on the Elimination of All Forms of Racial Discrimination (“ICERD”) requires scrutiny of the racial impacts of the lack of a right to civil counsel. This Article examines the ways in which the ICERD standards could influence the domestic civil counsel debate within the United States, requiring more rigorous examination of the ways in which lack of civil counsel compounds existing racial disparities. Part I examines the existing data demonstrating racial disparities in access to counsel, and sets out the relevant provisions of ICERD. Part II highlights the continued gaps in knowledge of the racial dynamics of this issue. Part III probes the ways in which the results of the 2007 ICERD review were used by domestic advocates, revealing that, despite the CERD Committee's strong statements, the CERD Committee conclusions were rarely invoked in domestic advocacy. Part IV suggests possible avenues for strengthening the connections between the CERD Committee's work and U.S. advocacy on the civil right to counsel. The Article concludes that ICERD has an important role to play in providing a legal framework for addressing the racial impacts of the lack of civil counsel -- a framework that is lacking in domestic law. However, ICERD will not have significant domestic influence until both U.S. human rights advocates and the CERD Committee thoughtfully tailor their work to the U.S. context, with a view toward shoring up the domestic impact of international law.
Date of Authorship for this Version
Right to counsel, International Convention on the Elimination of All Forms of Racial Discrimination, ICERD
Davis, Martha F., "Race and Civil Counsel in the United States: A Human Rights Progress Report" (2015). School of Law Faculty Publications. Paper 32.