(The following blog was part of a memorandum authored by Profs. Janet E. Lord and Michael A. Schwartz, titled “Recommendations for Improving Military Justice,” and sent to the U.S. Department of Defense’s Military Justice Review Group.)
Access to military justice is a broad concept, encompassing service members’ effective access to the systems, procedures, information, and locations used in the administration of military justice. Service members who have transgressed the laws of military justice are brought to the bar to answer for their offenses. In addition, service members may be called upon to participate in the justice system, for example as witnesses or as jurors in a trial. Unfortunately, service members with disabilities have often been denied fair and equal treatment before courts, tribunals, and other bodies that make up the military justice system in the United States because they have faced barriers to their access and lacked appropriate accommodations to facilitate participation. Such barriers not only limit the ability of service members with disabilities to use the justice system, they also limit their contributions to the administration of justice.
To be fully included in military life, service members with disabilities require equal access to military justice. As long as they face barriers to their participation in the military justice system, they will be unable to assume their full responsibilities as members of society or fully realize their rights. For this reason, it is important that barriers be removed so that service members with disabilities can enjoy the equal opportunity to perform their duties as witnesses, jurors, lawyers, judges, arbitrators, and other participants in the administration of military justice.
Examples of Barriers to Access to Justice
- Physical barriers to military police facilities, courthouses, jails, and other military facilities;
- Lack of accessible transportation to these facilities;Regulations, policies, or practices expressly barring service members with disabilities from being witnesses, jurors, or judges;
- Lack of accessible information about how the military justice system works and the rights and responsibilities of service members with disabilities within the justice system;
- Lack of accommodations to facilitate communication by service members with disabilities, especially those who are hearing or vision impaired, and those with learning disabilities;
- Attitudes about the ability of service members with disabilities to participate meaningfully in the administration of justice, such as the false perception that service members with psycho-social disabilities cannot be reliable witnesses; and
- Lack of training for officials in the military justice system to understand the specific needs of service members with disabilities in accessing justice and how to provide necessary accommodations.
The right to access to justice is firmly rooted in American as well as international legal instruments that address the equality of persons before the law, their right to equal protection under the law, and their right to be treated fairly by a tribunal or court.
Taken as a whole, the military’s obligation with regard to access to justice includes:
- The obligation to respect: the military must refrain from engaging in any act, custom or practice that denies or limits equal access to justice for service members with disabilities.
- The obligation to protect: the military must take all appropriate measures to eliminate discrimination and violations of access to justice on the part of service members with disabilities by any non-State actors.
- The obligation to fulfill: the military must be proactive in its adoption and implementation of measures to give effective access to justice for service members with disabilities.
Accommodating Service Members with Disabilities in the Military Courts
Service members with disabilities have the same needs as other service members without disabilities to access court programs and services, including judicial and administrative proceedings, jury service, and courthouse meetings. The military has an obligation to identify and remove barriers that stand in the way of access to court programs and services for service members with disabilities, who must be afforded equal access to serve as jurors, appear as parties or witnesses in a trial, or attend a hearing as an observer.
The duty to accommodate service members with disabilities in court and other legal proceedings, such as administrative hearings, relates to the fundamental right to be heard. Access must be provided at all stages of a judicial process and must be provided to all participants.
There are two central aspects of ensuring access to courts:
General Accessibility: The first is to develop and implement a comprehensive plan to address general accessibility concerns, including identifying and removing architectural barriers in courthouses, providing materials in alternative formats, making court websites accessible for people who use assistive technology, and installing listening systems in courtrooms.
Individualized Accessibility: The second aspect of ensuring access to courts relates to the provision of individualized accessibility to respond to an individual’s needs to ensure equality of opportunity in the administration of justice. This may include the providing a sign language interpreter for a person who is deaf, a reader for a witness who is blind, or frequent breaks for a defendant who has a psychosocial disability.
The following framework reflects a holistic approach to addressing the multitude of barriers that persons with disabilities may often experience in attempting to access courts:
Court Facilities: Identifying and addressing barriers within the physical or built environment. Modifications might include, for example, making pathways to court building accessible (for example, entrance ramps), making accessible corridors, elevators, accessible washrooms, appropriate signage, and addressing courtroom accessibility to enable wheelchair users to participate in proceeding in any role or as observer.
Court Programs and Services: Identifying and addressing barriers to access in court programs and services. Accommodations and accessibility modifications might include, for example, interpreter services, information on accessible accommodations and how to request them, information on how to file a complaint, and provision of court information in accessible formats.
Court Policies: Adopting policies and guidelines to promote disability accommodations and accessibility in court facilities, services, and programs. Examples might include the development of an accommodation request procedure, designating a single point of contact for accommodation requests, designing policy on excusing jurors from service in a way that ensures the inclusion of persons with disabilities, developing emergency evacuation plans for persons with disabilities, establishing procedures for receiving and acting on complaints, and establishing certification or standards on interpreter qualifications.
USEFUL RESOURCES ON ACCESS TO JUSTICE
- Americans with Disabilities Act-Architectural Barrier Act (ADA-ABA), Accessibility Guidelines for Buildings and Facilities (as amended 2004): http://www.access-board.gov/ada-aba/final.cfm#rooms
Provides detailed guidelines on accessibility, including elements within courtrooms, to comply with the Americans with Disabilities Act 1990.
- Georgia Commission on Access and Fairness in the Courts, A Meaningful Opportunity to Participate: A Handbook for Georgia Court Officials on Courtroom Accessibility for Individuals with Disabilities (December 2004):
Detailed handbook concerning all aspects of courtroom accessibility for persons with disabilities.
- David McChesney, Promoting Disability Accommodation in Legal Education and Training (Reach Canada, 2003): http://www.reach.ca/lepof/table.htm
Detailed report on disability accommodations in legal education in Canada.
- Stephanie Ortoleva, “Inaccessible Justice: Human Rights, Persons with Disabilities and the Legal System,” 17 ILSA Journal of International and Comparative Law, 281 (Spring 2011)
Detailing the barriers that persons with disabilities experience in accessing justice and discusses the implications of the CRPD.
- Washington State Access to Justice Board, Ensuring Equal Access for Persons with Disabilities: A Guide to Washington Administrative Proceedings (2006):
Provides detailed guidance on disability accommodations in administrative proceedings for persons with disabilities.