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The Intersection of Human Rights and Criminal Justice

The Intersection of Human Rights and Criminal Justice

The Center for Justice Research’s Dr. Howard Henderson recently spoke with Dr. Alzahrani (whose university affiliation has been redacted to protect his identity) on the intersection of human rights and criminal justice across global communities.

Full audio of interview

The conversation focused on criminal justice reform initiatives in the U.S. and how those approaches can be considered for international adoption. Dr. Henderson also discussed qualified immunity, police reform tactics, Black Lives Matter successes, and how eroding human rights impacts equitable criminal justice systems around the world.

Read the session’s full transcript below.

Speakers:

Howard Henderson, PhD - Founding Director of the Center for Justice Research and Professor of Justice Administration in the Barbara Jordan - Mickey Leland School of Public Affairs

Alzahrani BSc, MSc PhD - Assistant Professor in Applied Health and Therapeutics

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Dr. Alzahrani:

Let me start with a small introduction, professor, and then we will start gradually building up our conversation if that will be okay for you?

Dr. Howard Henderson:

No problem.

Dr. Alzahrani:

Good evening to everyone in the Middle East and good afternoon to the people in America. Thanks to everyone for being here. As you know, I promised to become an active participant in the public fight for human rights across religion, race, and color. I'm using this account to stop tolerating and legitimizing human rights violations and injustice. I believe, professor, that a great and trusted scientific person like Professor Howard and public confidence are perhaps the most valuable tools in fighting injustice.

Today, we are pleased to welcome professor Howard Henderson, a very special guest. He is the Founding Director of the Center forJustice Research and a Professor of Justice Administration in Barbara Jordan. He serves as an advisory board member for many institutions. He is a member of the National Scientific Advisory Committee at the Institute of Justice Research and Development at Florida State University.

Today we are going to talk about criminal justice and civil rights. Professor Howard has published many scientific papers, and he is going to share his expert opinion on civil rights and criminal justice and also about qualified immunity. With that, I ask that you give your full attention to Professor Henderson and help me welcome him to the space. Thank you so much, Professor Henderson, for accepting our invitation, and we are really happy to have you with us.

If I start with a question, professor, which is, what is justice? Everyone is talking about human rights justice. Everyone is talking about criminal justice. Can you please tell us what the definition of justice is? Thank you so much.

Dr. Howard Henderson:

First of all, thank you for inviting me to have this conversation with you. I will try to be deliberate in my explanation of justice. I simply define justice as the fair response from a system charged with ensuring that aggrieved individuals receive a fair response, regardless of race, gender, socioeconomic status, or any other protected class.

Dr. Alzahrani:

That's great, professor.

There is a very good question we have here in Arabic countries, is justice to be affordable to all members of society as a right or a privilege?

Dr. Howard Henderson:

Justice, in order for society to be effective, it must be a right. It can't be a privilege because privileged rights don't necessarily equate to equality for all. When you think about the issues that we have in our societies around the world, it's because justice is seen as a privilege in most cases, a privilege for people who have the means, the individuals who are apart of a class of individuals who tend to hold power, particularly economic power.

Dr. Alzahrani:

That's great. I would translate that to Arabic.

Dr. Howard Henderson:

Please.

Dr. Alzahrani:

Thank you so much, Professor Henderson.

Do we desire to place all members of society under the umbrella of justice, regardless of if they are president or king or prince?

Dr. Howard Henderson:

Restate that again. I'm not sure I understand exactly what your question is there. Could you restate?

Dr. Alzahrani:

Do we desire to place all members of society under the umbrella of justice, or are there certain people that are not under the law or the justice of this type of country?

Dr. Howard Henderson:

No. I think it's the desire of some, but I don't think it's the desire of all. And though more people may admit that this is a goal, in practice, it looks somewhat different. We see that when you look around the world and how poor people are processed through the criminal justice system, oftentimes solely because they are poor. They don't have resources, and crime was used as their response to be disenfranchised.

Dr. Alzahrani:

That's great.

Professor Henderson, there are lots of controversial subjects about criminal justice and human rights justice. In a way for us to understand the significance of human rights in the context of criminal justice, how do we combine human rights in the context of criminal justice?

Dr. Howard Henderson:

Keep this in mind. I think that when you look around the globe, you find almost more than 70 of the 113 countries that were recently surveyed by the Rule of Law Index reported that there was a fundamental human rights erosion. In other words, human rights are being diminished, and the criminal justice system has been used as an apparatus to erode human rights. When you think about the criminal justice system, not only in the United States, but the world over, it raises serious concerns of constitutional and human rights violations.

Essentially, these violations have immersed themselves in the system, and they become institutional. They're no longer focused on the individual level. This is happening from a number of dimensions, racial disparities, not only in arrest and conviction, but in sentencing, reentry, and the hard sentences that people receive because of low-level, nonviolent offenses. Those labels impact them for the rest of their lives, both in prison, as well as in the community. The impact of incarceration on these historically disenfranchised populations, even including children, the mentally ill, and others, is significant. When you think about human rights and you think about the criminal justice system, the criminal justice system essentially has become an apparatus through which human rights can be taken from people, which is codified and justified by the state and supported and reinforced by the supreme judicial powers.

Dr. Alzahrani:

That's good, professor. Thank you so much.

Professor, I've heard doctors at universities, they're saying that the criminal justice system is no longer about the truth but about who's going to tell the best story. Is that sentence the true description of criminal justice in America?

Dr. Howard Henderson:

I would go further than that and say, not only is it about who tells the best story, it is about who has the most money. A famous book.. in prison [CM1]  operationalizes what we are talking about here. It's not about who has the best story, but which side has the most money and the most resources. We found that it's not members of protected classes who are fortunate enough to have the most money, and, because of that, they're impacted by the label of a criminal.

Dr. Alzahrani:

That's great. Thanks so much, professor.

Professor Henderson, is it only the money of the powerful people who can change the criminal justice system, or are there many reasons that they can apply against other people in terms of race or in terms of religion? Can we just only say it depends on the race, it depends on the religion, so they can look at your case, or the criminal justice depends on the race and the religion? Can we say that?

Dr. Howard Henderson:

Let me say it this way. When you look at the impact of an individual's race or racial category on criminal justice involvement, let me say it like this. In the United States, for example, Black Americans make up 27% of people arrested, which is double their total population percentage. Black youth account for about 15% of all kids, yet they make up about 35% of juvenile arrests. There is a link between racial crime that is really a matter of a larger issue, and that's poverty. When you think about the likelihood of, particularly in America, Black people being in the impoverished group, the combination of being Black and poor is very impactful on your likelihood of being labeled delinquent or committing a crime. Even though there is a higher rate of Black involvement in particular types of crimes, Whites oftentimes overestimate the behavior of Black and oftentimes Latinx members in this space. You also have to understand that at the end of the day, there are socioeconomic conditions that have been forced upon groups of individuals, particularly Black, in the United States and the world over.

In fact, if you read Frantz Fanon's classic, The Wretched of the Earth, you see that this is an international problem, not just in the United States. It just so happens, though, that the United States has a system that allows individuals to speak out against that without fear of certain things. For example, if you look at the Rule of Law around the world, you see that this is an issue not only in the United States but in South America, Africa, European countries, and the Philippines. You see this everywhere where we're able to obtain data. This is an international issue that I'm glad that you're bringing to the conversation.

Dr. Alzahrani:

Thank you so much, indeed, professor. I'll translate it to Arabic, and then I'll go to the next question.

Professor Henderson, we've heard about the battle you've been trying to convince the Supreme Court about the criminal justice system in America and how we better change this in terms of qualified immunity. Before we go into that and what the Supreme Court decided last Monday, can you tell us what we mean about qualified immunity?

Dr. Howard Henderson:

Yes, up to a certain point, what qualified immunity says is that if an individual who is an agent of the state, police, prosecutor, probation officer, whatever their position is as an agent of the state, they're protected against certain actions in response to their behavior in the color of their job. When you understand what that means, it's essentially a defense that, in this case, we're talking police or anyone, they raise when they are sued for money or damages in a civil rights suit. It happens when a person brings forward a case saying that their constitutional rights have been violated by this agent of the state of the police, and then that person or police officer or government official can raise the defense of qualified immunity, which indicates that the case against that person should be dismissed. Not because they didn't violate the constitution, but because the right that was violated was not clearly established. What the definition clearly established is, has changed over the years.

This doctrine was created by the Supreme Court, which has repeatedly issued divisions that make it harder to achieve this goal. Even today, if you read the Supreme Court's decisions, the message that they are clearly sending is that in order for a right to be clearly established for a person to get past a qualified immunity defense, they have to find a prior court decision from a court system they're a part of, the court of appeals, for example, that held identical conduct as unconstitutional. If they can't find a case, as in a police officer who has violated someone's rights in a way that has not been done before, then the officer can be dismissed from that suit. These cases have to be very similar.

In fact, there is a case, Baxter versus Bracey, which is a United States Supreme Court case in which a person was suspected of burglary. He sat down, raised his hands in the air, and surrendered. The police still released their dogs on him, and the dogs beat, bit, and maimed him. This person brought forward a lawsuit, and the officers claimed qualified immunity. There was a prior case where police dogs had been released on someone who had been surrendered lying down. In that case, the court said that the action was unconstitutional, and it was excessive. The court, considering the case of the man who had the dog released on him while he was sitting with his hands in the air, said this in court, "The factual differences between someone lying on the ground and someone sitting with their hands in the air are enough to mean that the law was not clearly established." The Supreme Court has made it even harder to move past this hurdle because they have told the courts that they can grant qualified immunity without ruling whether or not the office's conduct was unconstitutional.

So, on the one hand, they're telling plaintiffs, "You have to find a prior case with virtually identical facts." Then on the other, they're telling the courts, "You don't have to decide whether or not the constitution was violated." There are a lot of things that are wrong with qualified immunity, and these are just a couple of those. I'm also going to say this, I think there are some behaviors where an officer should receive deference, but that doesn't mean qualified immunity. In the court of law, we should trust our system enough to know that no one's going to put a police officer in harm's way to be convicted of a crime that they didn't commit. Qualified immunity, I think, creates more problems than it's worth, but again, that's debatable, and I'm sure that with going forth, that's going to be continued for some time.

Dr. Alzahrani:

That's great, professor. Thank you so much, indeed.

Professor Henderson, is the conduct objectively reasonable? They were talking about the test for qualified immunity. Is the conduct objectively reasonable?

Dr. Howard Henderson:

No, but that depends on who you're talking to, right? If you are talking to a group of officers, they're going to say, "Yes."If you're talking to citizens who align themselves with officers' perspectives in that situation, they're going to say, "Yes." If you're talking to individuals who feel otherwise after having been presented the evidence, they're going to say, "No. It's not objectively reasonable." It depends on the situation. It's not a one size fits all approach. The facts are what they are, but again, you can present the same set of facts to two people, and you come away with two different perspectives, which is the problem here. We are operating in a system that is supposed to be fair and just, but yet human nature and the subjectivity of it can cause serious problems.

Dr. Alzahrani:

That's great, professor.

There's a question about why is personal immunity critical?

Dr. Howard Henderson:

Well, I'm not necessarily sure that personal immunity is critical. When you look at the research, and when you look at legal cases, I'm not sure that personal immunity is necessary to protect officers in these cases. In most of the cases where an officer is charged with a crime, I actually believe that a jury would find that officer not guilty if the facts lend themselves to be not guilty. Just the same, I think, they would find them guilty if the facts lend themselves to be guilty. The assumption is that qualified immunity is necessary, but in fact, I'm not sure that that's the case.

Dr. Alzahrani:

Yeah. That's great, Professor Henderson.

There is a question about if a president or a high-level in the government did something against the law in America, can qualified immunity protect him? Or the law in America, is the law, even with the president? In Arabic countries, it's quite confusing for people to understand that because they think of the president like in Arabic country can be, because the law can be violated, unfortunately, here in an Arabic country. Is the case the same in America if the president violates human rights somehow in the country? Can the Supreme Court or the law in America stop the president from doing that?

Dr. Howard Henderson:

Let me make sure I understand your question. Are you asking if the president is protected by qualified immunity? Is that what you're asking?

Dr. Alzahrani:

I think, according to the law, the president is protected by qualified immunity, but if the president has done something against human rights or did something for human rights violation, can the law in America protect the human rights in violation? Or, because he's the president, he can get away with this case? The question comes from a listener in the Middle East, because he's trying to compare if the qualified immunity is similar in America. If the president or the king in an Arabic country, in general, does something, he can get away from the law. He's trying to compare. Is it similar to the case in America?

Dr. Howard Henderson:

When you talk to constitutional scholars, this is the debate that we're currently engaged in. Some point to the protections, and some point to what they're calling presidential immunity, which is another level of qualified immunity focused on protecting the president in these cases. Some legal scholars have argued that the president has absolute immunity in actions, particularly civil damages for all the acts within, what they're calling, the outer perimeter of his official duties. Then others are arguing that when a president moves beyond, that it moves into the criminal space, then those protections are eroded, and because of such, their behavior requires judicial action. They're saying that individuals who file private suits of damages because of something the president has done in office has no serving on the broader public interest, and the court must act. Then others say that qualified immunity would necessarily protect the president because any judicial examination or inquiry into what they call the functional analysis of his actions would bring, what they're saying is, evil immunity and wants to prevent that, and thus requires immunity.

The other question is whether or not the behavior that the president engages in is really a matter of official or unofficial misconduct. There was a case, Clinton versus Jones, where they looked at that case and examined whether or not unofficial conduct can be a part of a president's actions while in office. It's a tricky constitutional question, one that we are faced with at the very moment. It'll be interesting to see how the court decides that. With the current composition of our court and the decisions that they have been making, I don't see them holding the president accountable. In other words, I don't see them not ensuring that he has presidential immunity just given the decisions that they've decided before, but again, you never know. Each case will be assessed on his own merit, but given the way that they have been deciding lately, I don't see them pulling that immunity from the president for his actions.

Dr. Alzahrani:

That's great, professor.

You've been gathering a group of Black criminal justice researchers and experts to center the voice of communities most affected by police violence. Tell us about the group, professor, that you've been working on for several years to center the voice of communities most affected by police violence.

Dr. Howard Henderson:

Well, I think it's important that you ask the right questions. What we wanted to do was bring together people who shared a lived experience with those communities most impacted by the criminal justice system so that we could begin to ask those more sensitive questions without fear of reprisal. When you are part of a culture, when you are part of a community, there's a certain rapport that you have that others, who are on the outside, may not necessarily have or may take them longer to learn that. We wanted to understand how communities interact with the police and how they can work together because what we found is that when we surveyed almost 7,000 people, we found that in these minority communities, not only were they not interested in policing, as the media makes them seem, but they actually were calling for more policing. But they were calling for a particular type of policing.

When you talk about this entire defund the police movement, we weren't finding the support for that when we were surveying people. Now, again, you can have all sorts of criticisms. One of the main critics is that you have to provide an alternative when you ask questions like that and say, "Listen, in place of traditional policing, would you be in favor of whatever the options are?" Some of the primary critics with which we work a lot in conjunction with is, they were saying that when you ask a question about defunding the police, you must provide examples of what the alternatives look like and then allow them to make a choice. In this case, what we found is that across the country, many police chiefs are in favor of reforms. What we've also found is that 99.9% of police unions are not in favor of reforms to the degree of qualified immunity. Most of them were in favor of banning chokeholds. They were mostly in favor of holding police officers more accountable, but they weren't in favor of getting rid of qualified immunity. They were willing to take steps in the right direction, but the policing groups and unions were not in favor of going as far as the community wanted them to go inholding officers accountable. Very interesting.

Dr. Alzahrani:

Very interesting. Thank you so much, indeed, professor.

We've got a question about what you've been talking about, the minority, professor. What measures did people take in Black Lives Matter Movement to ensure their success? What did they do in a way that helped them to raise their voice, especially about what happened in America? From an academic person like you, Professor Henderson, what do you think the measures did the people take in the Black Lives Matter movement?

Dr. Howard Henderson:

Let me say this. When you go back to 2013, you see that the Black Lives Matter Movement has been the primary motivator behind raising awareness against police brutality and in the broader social movement. When you localize those Black Lives Matter chapters around the country, they have pushed for more accountability in the murder of Blacks at the hands of the police, but you also find that they have partnered with organizations to amplify answers to problems that have been pervasive and affecting individuals from poor minority communities for some time.

Anecdotally, we argued the protest has been able to make progress. The research has not caught up with the protest moving in terms of how you measure it, but when you look at raising awareness and the role that that has in changing social movements, it makes a difference. For example, you look at the legalized population survey. They examined whether or not individuals who were seeking pathways to citizenship, whether or not they were allowed to serve in the U.S. Armed Forces or obtain degrees. Now, what's interesting about that is, is that the questions tended to be centered around the Black community, and ultimately you see policy changes that the Black Lives MatterMovement has been able to push forward. You've seen those policies adopted.

When you look at the host of immigration policies that come out of a response to positions that the Black Lives Matter Movement has supported, when you look at the H.R. 6 bill, you look at the American Dream and Promise Act of 2019. All of those created pathways in U.S. citizenship for immigrants. Those came out of the movement for Black lives. When you look at all of the national organizations that have come up to push forward progressive policies by helping people identify appropriate responses to injustice around the world, you see that they've been able to do that. You've seen the National Basketball Association, you've seen the National Football League, you've seen professional baseball, you've seen all of these professional leagues, not only here but around the world, the most recent, Olympics, people took a stand to argue for social justice, if for nothing other than to wear a T-shirt to keep it on the front of our lobes in terms of how we understand our response to it.

When you think about what happened in Toyota, Cigna, andA T&T, they all put funds in these spaces to make a difference. Then, you look at the political response and how the criminal justice system all had to deal with the Black Lives Matter protests around the country. Police departments have made clear changes to the way in which they respond to people, the way in which they arrest people. When you look at how body cameras have been used to hold officers accountable, you now have more police officers who have been convicted of crimes than ever before during this movement because they were able to raise attention. When you think about it, at some point, we're going to be able to measure the impact of the Black Lives Matter movement on a host of other measures coming out of these protests and the use of lethal force. When you think about the larger Black Lives Matter movement, you're also seeing mayors around the country create task forces to enhance public safety and equity.

The other piece that we haven't addressed is that from the Black Lives Matter Movement, we are now turning to economic reforms. You're seeing a host of philanthropic organizations putting money in these spaces, and you're seeing them give money directly to minority businesses. For example, in Philadelphia, they gave $13 million to an inclusive economy subcommittee, and they ensured that 66% of the loans went to minority businesses. We don't know whether or not that money was fairly distributed toward Black businesses, but the efforts have been pushing those directions. You look at Buffalo, New York, and you find that individuals have been able to win political positions because they have supported the Black Lives Matter movement. You also know that the public now has the largest proportion of individuals in our society now support police reforms, and I would argue, largely because of what the Black Lives Matter movement has been able to do.

You look at the 2020 Gallup Poll, for example. Americans tend to agree across the board that equal opportunities for Blacks and minorities are problematic. Equality and opportunity are the keys. They also recognize across the board, in the 2020 Gallup Poll, that equality and opportunity were at their lowest rates since they were founded in 1963. When you think about the job market, when you think about housing, when you think about our views on racial equity, they continue to differ between Blacks and Whites. 50% of Americans believe that Blacks and Whites have equal opportunity in the job market, which is a number higher than the Gallup Poll in 1963, where they found a 38% rate during the civil rights movement.

When you look at The Washington Post, for example, and how they were able to examine views of crime being linked to social deprivation, these views changed. Almost 60% of Americans now say crime is a serious problem across the country. 55% of those survey participants agree that increased spending on police could lower the crime rate. 75% believe that growing funding to build economic opportunities in poor communities could also lower violent crime.

There is a national push and acceptance of the need for police reform. When you look at surveys across the country, across the board, regardless of geographic location, you're seeing this push in the right direction. As an example, the George Floyd Justice in Policing Act, which would call for bans on chokeholds, body cameras, and qualified immunity. There's still a push behind that, and when you look at President Biden signing the Juneteenth legislation on June 1, 2021, that was probably one of the most significant pieces of legislation passed in this recent push. I think you're going to see more of that if the Black Lives Matter movement is able to continue pushing forward. They have helped reorganize. They have helped bring awareness at the local and the national level to support alignment across the board, all of this during a pandemic. We'd be remiss to overlook and overshadow the role that they played in raising the conscious level of social justice or the lack thereof in society.

Dr. Alzahrani:

Fantastic. That is absolutely great, professor.

If we look at more than race minority issues in criminal justice, can you tell us a little bit, please, professor, about this magnificent book?

Dr. Howard Henderson:

Years ago, when I first started out as an academic, I was teaching a diversity course. In that diversity course, I recognized that in order to help students understand the need for diversity, I needed to be able to help them connect their personal experiences with this notion of diversity, but I couldn't do that if the only thing that I talked about were challenges faced by Black Americans. So, I began to research all of the other entities and individual groups that were experiencing issues with being accepted by the broader society over time. I started out with human rights and understanding why it was important for human rights to be respected, but also within the context of the criminal justice system. I looked at the notions of class. I looked at the notion of race, gender, sexual orientation, and age.

This was at a time when I was trying to find answers to help students understand what this was all about. When you're able to show them different groups who have experienced very similar responses from the system, some longer than others and some for different reasons, they begin to understand that this isn't just a Black issue. This isn't just a Latinx issue. This isn't just a gender issue, but above all, this was a class issue that was supported across various racial and ethnic domains. When they began to understand that, they began to see the bigger picture that individuals have aright to be treated fairly by a system that they were in charge of. I was able to put that together because what I saw out there tended to take a very one-sided approach, but I wanted to be able to show how it was more than just race. This was about minority issues in the criminal justice system and minority being more inclusive than just the color of an individual's skin.

Dr. Alzahrani:

That's great, professor.

What do you recommend an oppressed nation should do to lift oppression in terms of minority issues, professor?

Dr. Howard Henderson:

One thing a nation can do, first and foremost, is help increase reading. When you look at the literacy rates of many countries, you find them to be very low around the world. If an individual reads, then they're able to find answers to problems that they're facing because, as you know, there's nothing new under the sun. If they're able to read, then they're able to understand that the challenges that they think they're facing are unique but have actually been there from the beginning of time. You find that many of the countries that are low in literacy are also high in human rights violations. The ability to read and write is probably, in my opinion, one of the most significant factors in impacting an individual's life chances of success. We oftentimes don't look at that. We tend to look at economic levels, and we tend to look at health. We tend to look at housing, but we don't look at the role of literacy in addressing many of these problems. We should recognize that the ability to read and write is not only critical to an individual moving up the socioeconomic ladder but also helping society overcome its challenges.

Dr. Alzahrani:

That's great, professor. Thank you so much, indeed.

We are nearly finishing the session. If I may end the session with the last question if that would be okay, professor Henderson?

Dr. Howard Henderson:

Yes. Please do. Take your time.

Dr. Alzahrani:

Thank you so much, indeed.

There is a meeting on the CBS channel in America about the allegation between high authority in the Middle East. They've got several questions asking about why did, for example, foreigners come to American justice? Why do those foreigners not apply their appeal against each other in their country? This is the first question. The second question is, can anyone protect himself by the law of his country? For example, the Crown Prince or the king, because he's got presidential immunity, can he protect himself against the American law? I'm not sure if we can ask that question, but we've got this question, professor. Thank you so much, indeed.

Dr. Howard Henderson:

When you deal with complex international law, you have a serious challenge because you essentially have a constitutional crisis on your hand. It is very difficult to maneuver through the constitution, let alone attempting to integrate a foreign set of policies and overlay those in a different space, because culture is always going to be the land of the law. Even though a culture says all men should be treated equal and everyone has a right to free speech and has a right to possess a gun, the culture within that respective country dictates the matter of which those laws are applied to its individuals. Very often, you don't have neutral parties who are trying to ensure that conversation and the decisions that are being made, which they're able to respect not only the laws of the respected land but also those of international human rights.

Dr. Alzahrani:

That's great. Thank you so much, indeed, Professor Henderson, for your wonderful session. It was absolutely great, and we're looking forward to inviting you for another session if that would be okay, professor? We've got a lot of questions, but we have only one hour for every session.

Dr. Howard Henderson:

Yes, please do. I look forward to it and always enjoy having these conversations across the pond, as they say.

Dr. Alzahrani:

Fantastic. Thank you so much, indeed, Professor Henderson, for a great conversation in this session.

 

[CM1] Was not able to catch the name of the book.

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Center for Justice Research

Center for Justice Research