01.17.10

Haiti's Lawless Streets

As violence and looting beset Port-au-Prince, Haiti’s weak justice system teeters on the brink. Gerald L. Shargel on the lessons of New Orleans—and what it will take to restore order.

As 10,000 U.S. troops are set to arrive by Wednesday and the estimated death toll climbs, The French minister in charge of administering aid accused the U.S. of "occupying" Haiti, and a Swiss charity blamed American air traffic controllers for turning away planes carrying medical supplies. Meanwhile, the leading American general in Haiti estimated that 200,000 people have died in the quake.

Below, Gerald L. Shargel on Haiti's weak justice system, the lessons of New Orleans—and what it will take to restore order.

As Haiti digs out from its devastating earthquake, spasms of violence are erupting. There are reports of looting, even grave-robbing. There are no local authorities to speak of on the mean streets. Can Haiti’s criminal-justice system, badly broken before the quake, be salvaged, and help restore order to a society on the brink?

This country’s closest reference point is what happened in the wake of Hurricane Katrina. Then, each component of the New Orleans criminal-justice system—the police, the courts, and the prisons—was in imminent danger of collapse. Widespread looting and lawlessness went unchecked by a poorly organized police department. The court system itself was stalled by the storm; the processing of criminal cases was virtually suspended, resulting in a massive backlog. The District Attorney's Office, as well as the Public Defender of New Orleans Parish, was short-staffed; inexperienced prosecutors and defense lawyers sought to fill the breach. Jails were dangerously overcrowded, bursting at the seams with inmates being held for months without access to lawyers or court hearings.

Although the prison walls were still intact, the doors were wide open and almost the entire population of 4,000 inmates appeared to have escaped.

Now more than four years later, while still on the mend, the New Orleans criminal-justice system has survived. Volunteers from law firms and law schools around the United States assisted determined Louisiana judges and lawyers in a well-funded effort to restore the court system and clear the backlog.

Can the Haitian courts look northwest to New Orleans as a paradigm of promise? Sadly, as with all else in this immeasurable tragedy that is Haiti, the answer right now is an unmistakable no. While the New Orleans courts have never been described as temples of justice, the Haitian criminal-justice system has long been broken and a cosmetic cleanup won't fix it.

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In recent days, little, if anything, has been reported or written about the Haitian criminal-justice system. The biggest challenge the system faces at the moment, of course, is law enforcement; there is an urgent need to bring rioting and looting under control. The Haitian police force, much like its New Orleans counterpart in the days after Katrina, is plagued by desertions and a lack of resources. And, as in New Orleans, U.S. troops will work to restore and maintain order in Haiti.

The first real glimpse into the inner workings of criminal justice in Haiti came last week with Anderson Cooper's tour of the national prison in Port-au-Prince. Although the prison walls were still intact, the doors were wide open and almost the entire population of 4,000 inmates appeared to have escaped. Gone were, as Warden Jean Herisse described the escapees, the "criminals, bandits, assassins who terrorize the population." Said Warden Herisse: "It's a big problem for the country." But from a criminal-justice perspective, the "problem" runs a lot deeper than the need to re-arrest the criminals.

Even in the aftermath of the earthquake, the CNN camera crew easily captured the squalor that existed in the facility. The prison, the Penitentier National, was one of those described in a 2007 report from the International Crisis Group as "powder kegs awaiting a spark."

As reported by the Miami Herald in March 2001, the vast majority of the detainees, often held for years under subhuman conditions, have never been tried or convicted (there is no bail in the Haitian legal system). Inmates waiting disposition of their cases are held in abject filth and squalor. Jean-Paul Lupien, a former French-Canadian prison warden who consulted for the United Nations Development Program, described Haiti's prisons as severely overcrowded "death traps," the worst he'd ever seen. Prisoners who sweltered in poorly ventilated cells, were physically and sexually abused by fellow inmates, mercilessly beaten by sadistic officers, constantly exposed to infection and disease (including tuberculosis and AIDS) while deprived of medical care. The antiquated prison was built in 1918 during the American occupation of Haiti.

The deplorable conditions of Penitentier National and Haiti's other prisons were just one symptom of a long-ailing criminal-justice system. Prisoners' grievances could not be addressed and cases could not be tried or resolved because there was no organizational infrastructure. Inadequate court facilities, an insufficient number of judges and lawyers, the incompetence of court personnel (case files were frequently lost), along with an undercurrent of pervasive corruption all combined to dash any hope of a fair and efficient system of justice. The Haitians were simply too poor to improve the system.

The earthquake of 2010—measuring 7.0 on the Richter scale—is, in a real sense, apocalyptic. The criminal-justice system, like the country itself, cannot be simply "put back together." Haitians deserve something far better than restoration of life as they once knew it. Out of this catastrophic event, world governments should be brought to the realization that Haiti must be adequately funded and rebuilt from the ground up. The rebuilding, though, must be far more than structural. In recent days, commentators have heralded the rebuilding of Chicago after the Great Fire of 1871 or San Francisco after the 1906 earthquake. Unlike those great cities, Haiti needs, more than anything, a rebuilt economy and an improved standard of living. Only then can the criminal-justice system and every other part of the Haitian government be brought into the 21st century.

In a recent appearance in New Orleans, President Obama continued the pledge that the city would be rebuilt "stronger than ever before." The good people of Haiti deserve no less.

Gerald L. Shargel, a member of the New York Bar since 1969, has handled numerous high-profile cases at both the trial and appellate level. Mr. Shargel, a practitioner-in-residence at Brooklyn Law School, recently authored a law review article published in the Fordham Law Review, "Federal Evidence Rule 608(b): Gateway to the Minefield of Witness Preparation."