Applying a Human Rights Framework

Applying a human rights framework to the laws, policies, and practices with forensic populations and settings can be used to assess the extent to which these laws meet basic human rights principles. In particular, the principles of a human rights framework can provide assessment guidelines for developing or evaluating existing public health and criminal justice laws or policies, such as U.S. compassionate and geriatric release laws. The underlying values/principles of a human rights framework include dignity and respect for all persons, and the indivisible and interlocking holistic relationship of all human rights in civil, political, economic, social, and cultural domains (United Nations [UN], 1948). Additional principles include participation (especially with key stakeholder input on legal decision making), nondiscrimination (i.e., laws and practices in which individuals are not discriminated against based on differences, such as age, race, gender, and legal history), transparency, and accountability (especially for government transparency and accountability with their citizens; Maschi, 2016).

The Universal Declaration of Human Rights (UDHR) also is an instrument that provides assistance with determining the most salient human rights issues affected. Ratified in 1948 as a response to the atrocities of World War II, 48 countries, including the United States, voted in favor of the UDHR (UN, 1948). It provides the philosophical underpinnings and relevant articles to guide policy and practice responses to the aging and seriously and terminally ill in prison. The UDHR preamble underscores the norm of “respect for the inherent dignity and equal and inalienable rights” of all human beings. This is of fundamental importance to crafting the treatment and release of the aging and seriously ill persons in prison.

Using a case example of aging and seriously ill people in prison, there are several UDHR articles that are important to consider when providing a rationale and response to the aging and seriously ill population in prison. For example, Article 3 states, “Everyone has the right to life, liberty, and the security of person.” Article 5 states, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Article 6 states, “Everyone has the right to recognition everywhere as a person before the law.” Article 8 states “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law,” and Article 25 states, “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food and clothing” (UN, 1948).

The Social and Justice Environments

The social environment is often viewed as the place in which person-in-environment interactions occur (Zastrow & Kirst-Ashman, 2012). However, although the social environment is commonly viewed as omnipresent, the justice environment that is informed by human rights is equally present. The justice environment consists of individuals, families, and communities seeking fairness, equality, freedom from oppression, and the balance of power, as well as the laws, policies, and legal system that affect the social environment (Barker, 2003).

The presence of justice, if not explicitly stated, is implicit in the descriptions of the social environment as usual. The social environment may range from an individual’s interactions with social or organizational settings (e.g., home, school, society, work, agency, and neighborhood), social systems (e.g., individuals, groups, families, friends, work groups, and communities), attributes of society (e.g., laws and social norms and rules), social institutions (e.g., health care, social welfare, education, juvenile and criminal justice, and governmental systems), to social forces (e.g., political, economic, cultural, environmental, and ideological forces; Zastrow & Kirst-Ashman, 2012). Although person-in-environment interactions describe social settings and interactions, it also suggests justice situations (e.g., denied employment because of a disability or history of incarceration) or settings (e.g., involvement in juvenile and criminal justice settings) and justice-oriented interactions (e.g., associating with delinquent peers, being arrested by the police for driving while intoxicated, being a victim of a bias or hate crime, or losing one’s home to eminent domain).

A HR-SJS Perspective

We propose a social justice systems (SJS) perspective that conceptualizes the interaction of persons within a “social justice” environment. The core social work value of social justice is a central aspect of this perspective. Barker (2003) defined social justice as “an ideal condition in which all societal members have the same rights, protection, opportunities, obligations, and social benefits.” The sociolegal environment represents a combination of social justice (person-in-environment interactions that seek a balance toward social justice or fairness) and the legal environment (which represents the law, the legal process, and institutions that seek individual and community protection). Thus, the SJS perspective allows social workers to pursue optimal social and justice outcomes for their clients across all fields of practice.

Figure 1.3 depicts a HR-SJS map that shows the different pathways individuals and families may travel in across the social service and/or justice systems of care. These service trajectories may span a continuum from the least to most restrictive service environments. The human rights and social justice system is comprised of an individual’s proximal social system and the “social and justice sectors of care.” Each sector of care represents a service subsystem in which individuals are affected by this sector’s laws and policies. Although health and education are universal services, the other subsystems are specifically designed to provide services for individuals and/or families at risk. Individuals and families may have varied patterns of system bias and discrimination, unmet service needs, and/or concurrent and/or sequential service-use patterns that include health, education, social services, child welfare, mental health, substance abuse, and juvenile justice and criminal justice service sectors of care.

Figure 1.3

A Conceptual Diagram With Examples of the Different Informal or Formal Systems That Individuals and Families May Use Concurrently and/or Sequentially in the Social and Justice Sectors of Care. It Can Be Used for Prevention, Assessment, and Intervention Mapping

The HR-SJS framework builds upon a generalist social systems theory. Social systems theory focuses on “the relationships that exist among members of human systems and between these systems and their impinging environments” (DuBois & Miley, 2012). Within each larger system are smaller nested subsystems. A change in one part of a system affects other parts of the system (L. C. Johnson & Yanca, 2015). For example, social work practitioners commonly assess and intervene in the subsystems of family, health care, education, and social service, as well as political and legal systems.

In an ideal world, these social systems would function at their optimum potential. Families would be able to care for the physical, emotional, and social development of young and elderly family members; health and mental health institutions would assist all individuals in achieving and maintaining optimal physical, mental, emotional, and spiritual health; educational institutions would help all individuals to achieve the knowledge and skills needed to excel in society; social service systems would be able to help all individuals in need; and the political and legal system would provide protection, safety, and human rights to all individuals and families by developing or implementing laws, maintaining order, and fostering their creativity and potential.

However, the reality of our global society, in which oppression of individuals and groups based on difference, does not match this ideal. The interaction between and among systems is often conflicted because of social tension, service barriers, missed opportunities, power struggles, oppression, and other social injustices. L. C. Johnson and Yanca (2015) argue that when applying social systems theory, individuals’ needs and rights must be considered in the context of larger systems because of these divergent environmental demands.

When applying a HR-SJS approach, social interactions among individuals and their environment also are viewed as dynamic and multidimensional. The interaction between individuals and the different systems in their environment may significantly affect their level of functioning. For example, a single mother with four children who has no mode of transportation will be unable to travel to obtain much-needed public assistance or food stamps. Because social workers “strive to ensure access to needed information, services, and resources; equality of opportunity; and meaningful participation in decision making for all people” (NASW, 1996), a social worker for this family can apply a two-pronged approach to intervention: He or she may provide resource links to public assistance and employment services and transportation as well as advocating for the development of free or affordable shuttle services for social service recipients.

Social workers also must recognize that individuals and families may be involved in multiple systems concurrently or sequentially (Garland, Hough, Landsverk, & Brown, 2001). For example, a child with emotional and behavioral problems may simultaneously be involved in special education services, community mental health services, and probation. Another child may have initially entered the child welfare system and then later gone through the juvenile justice system. The role of the social worker will include identifying obstacles, making resource linkages, or advocating for needed resources across these social institutions (Finn & Jacobson, 2003).

A HR-SJS approach balances the goal of maximizing outcomes on both individual and societal levels. It also emphasizes the need for the knowledge and skills in forensic or legal issues, interprofessional and intersectoral collaboration, and generalist social work that integrates advanced clinical and/or policy practice. The HR-SJS approach helps to frame social workers’ efforts in pursuing social change, especially for vulnerable and oppressed populations affected by systemic issues (e.g., poverty, discrimination). Consistent with the NASW Code of Ethics (NASW, 1996), assessing for social and justice outcomes can “ensure access to needed information, services, and resources; equality of opportunity; and meaningful participation in decision making for all people.” Thus, the jurisprudent social worker who is savvy with both policy and the law can more competently engage in multilevel intervention strategies that include direct practice, community organizing, supervision, consultation, administration, advocacy, social and political action, policy development and implementation, education, and research and evaluation (NASW, 1996).

Generalist Social Work

Embedded in our definition of forensic social work are the general principles of social work practice, such as the International Federation of Social Work’s (IFSW) definition. According to the IFSW:

Forensic Social Work

There are a number of definitions of forensic social work. They range from general to specific and they may focus on one or more practice settings or populations. For example, Barker and Branson (2000) placed forensic social work in a broad “legal” environment, and they defined it as a “professional specialty that focuses on the interface between society’s legal and human service systems.” In contrast, Hughes and O’Neal (1983) defined forensic social work as specifically relating to the intersection of mental health and law, in which social workers “function in this space in which mental health concepts and the law form a gestalt.” Roberts and Brownell (1999) described forensic social work in terms of the knowledge and skills needed for the specific populations served, particularly victims and offenders. In this case, forensic social work is the “policies, practices, and social work roles with juvenile and adult offenders and victims of crime.” In comparison, Green, Thorpe, and Traupmann (2005) defined forensic social work more broadly as “practice, which in any manner may be related to legal issues and litigation, both criminal and civil.”

In the scholarly literature, Barker (2003) perhaps provides the broadest definition:

Incorporating Cultural Humility in a Human Rights and Social Justice Paradigm

Cultural Humility Self Reflection

The Colonial Era

No history of social work can be written without reference to the English Poor Laws of 1601. One reason they are significant is that they represent a merging of law and social policy, a codification of society’s responses to individuals in distress with an emphasis on government as the entity in charge of those responses. The laws responded to people in poverty, dividing them into three categories: deserving, undeserving, and children (P. J. Day, 2012). The Poor Laws are also significant because they represent the first opportunity for intervention by individuals who would later create the field of social work: advocates for those on the receiving end of the law.

Later, early English colonists were influenced by the laws and systems of England. Legally, this meant they also codified responses to the impoverished members of their settlements: individuals were divided up and then either shuffled to almshouses (for those who could not work) or workhouses (for the able bodied). They were reluctant, however, to turn to the government as the appropriate and responsible institution for maintaining law and order (perhaps exhibiting what might now be understood as communal posttraumatic stress disorder from their experiences living under a monarch perceived to be overly rigid and tyrannical). As a result, early police forces were made up of men patrolling neighborhood streets, first at night, and later during the day as well (Blakely & Bumphus, 1999). If a “criminal” were caught, the colonists sought swift punishment, usually of a corporal nature (Popple & Leighninger, 2014). Concepts of right and wrong—and views of human nature at the time—did not suggest that criminals would benefit from rehabilitation or that their victims needed support and advocacy.

The first institutions associated with crime and punishment were jails, which were simple holding cells for individuals, both children and adults, awaiting trial or punishment.³ The ensuing political break from England and concomitant development of Enlightenment philosophies, however, popularized a valuing of rationality that in many ways survives today. “Rational man” was thought to be changeable if shown the error of his ways; extrapolated to corrections, this gave rise to “proportional” punishments rather than “punitive” ones and engendered early concepts of rehabilitation. After the Revolutionary War, the first prison in the United States—“Walnut Street Jail”—was constructed in Philadelphia in 1790 (Popple & Leighninger, 2014). Because at that time crime was seen as arising from disorder, prison staff imposed strict discipline, schedules, and order on incarcerated individuals. This philosophy often carried over to almshouses and workhouses, which by definition were not correctional institutions, but whose operation was often indistinguishable from prisons. More opportunities for social work collaborative intervention were thus being created.

The 1800s

The 19th century saw a vigorous application of new legal and correctional policies. By midcentury, however, many were questioning if the philosophy was effective. If prisoners were sentenced to a fixed length of time, and if they were going to be incarcerated until their sentence was completed, regardless of their behavior, what incentive did they have to participate in the rigors of rehabilitative programs? Thus, the concept of early release as a reward for “good behavior” was created: Persons under incarceration began to be released early through parole. The first such individual was set free from the Elmira Reformatory in New York in 1876.

John Augustus, a wealthy shoe manufacturer in Boston, began social reform in the early 1840s when he started the practice of interviewing adults awaiting incarceration, personally posting their bail, and taking responsibility for their reformation, a pattern that was later instituted by Massachusetts as the process of probation. The practice spread to two thirds of the states by 1920 (Popple & Leighninger, 2014). Probation extended the concept of rehabilitation: those committing crimes could change their ways, either through discipline and programs in prison that could lead to early release, or through strict supervision and reform that could prevent incarceration completely. Though we cannot claim Augustus was a social worker, his actions foreshadowed those of the pioneers in forensic social work and helped solidify approaches to human nature that emphasized a person’s ability to change and grow. Such views would soon extend to those in other “legal” institutions, such as almshouses and workhouses.

The 20th Century and the Birth of Social Work

Social Work Post 9-11

The horrific crimes that occurred in the United States on September 11, 2001, and the myriad of local, state, and federal law and justice policies that have followed, are creating a new chapter in forensic policy and changing social workers’ roles. President George W. Bush’s “War on Terror” led to many new laws, perhaps most significant of which was the Patriot Act: Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism, passed on October 26, 2001, and revised and reauthorized in March 2006. The Act heightened the role of governmental intervention to anticipate and prevent specific crimes and alters the protections provided for those accused. Although much of the Act focuses on international security concerns, domestic policies have shifted in its wake, affecting immigrants and those seeking refuge or asylum. In this unfolding arena, forensic social workers again face a continuum of tasks and challenges, from individual casework and intervention to policy advocacy and social change.

Forensic Social Work and Human Rights

For 21st-century practice, forensic social workers can choose to play an instrumental leadership role in advancing human rights forward in our country and abroad. So where do we go from here? A good place to start is with the essential document, the UDHR (UN, 1948). Ratified by the UN in 1948, it continues to project a life-affirming message to citizens of the world and is a universally accepted legal mandate by most world governments to fulfill human rights.

Eleanor Roosevelt’s hope that the UDHR would become the International Magna Carta for all nations appears to have come to fruition. Following the UDHR, additional international human rights agreements (e.g., covenants and treaties) were adopted by many countries. In 1976, these documents included the International Covenant on Civil and Political Rights. Today the UDHR, along with these covenants, comprise the International Bill of Rights (Wronka, 2012). Despite progress in human rights over the past 50 years, 21st-century practitioners still have remaining gaps to fill. First of all, the United States continues to lag behind in support for human rights. Since the signing of the UDHR, the United States has signed and ratified major parts of the International Covenant on Civil and Political Rights (1966), which recognizes civil and political human rights (e.g., the right to life and liberty and rights to freedom of expression). Additionally, President Carter in 1978 signed the International Covenant on Economic, Social and Cultural Rights (1966) that recognizes economic, social, and cultural rights (e.g., the rights to food, clothing, housing, and health care). However, as of 2010, the United States has made some strides, such as the election of the first African American president and a bill proposing universal health care for all Americans; the U.S. government has not yet ratified this covenant (Wronka, 2008; 2012).

The United States has ratified only a small number of other human rights international documents and lags far behind many other nations in their legal commitment to human rights. The few documents ratified by the United States include the Convention on the Prevention and Punishment of the Crime of Genocide (1948), International Convention on the Elimination of Racial Discrimination (1965), and the Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (1984). Other important international treaties and documents remain unsigned or unratified by the United States. For example, the United States and Somalia are the only world nations who have not as yet ratified the Convention on the Rights of the Child (1989). The United States also has not ratified the Convention to Eliminate Discrimination against Women (1979), which guarantees the equality of women to men, although U.S. grassroots support for it is growing (Wronka, 2012). Forensic social workers have practice specialty areas where they can concentrate their individual and collective efforts toward advancing human rights. These areas include practice and systems reform in juvenile justice, criminal justice, health care, immigration, mental health, victims’ rights, and civil rights for racial–ethnic and homosexual minorities. For example, forensic social workers whose efforts are focused on juvenile and criminal justice human rights reform can advocate for the rights of offenders of all ages detained in penal institutions, the rights of minorities disproportionately involved in the criminal justice system, the rights of criminal offenders to rehabilitation and training, the rights of children born to women prisoners, the rights of juvenile prisoners, the rights of political prisoners, the rights of probationers, and the rights of those sentenced to capital punishment. There also is the potential to greatly improve the dehumanizing aspects of prison, including improving prison conditions themselves, and improving community conditions, such as living in poverty and crime-ridden neighborhoods, that place people at risk of engaging in criminal offenses (UN, 1994; Wronka, 2008).

Some relevant UN documents with direct implications for 21st-century forensic social work for juvenile and criminal justice reform (listed in chronological order) include the UDHR (1948); the Standard Minimum Rules for the Treatment of Prisoners (1955); the International Covenants on Economic, Social, and Cultural Rights (1966); the Convention Against Torture and Other Cruel, Inhumane, or Degrading Treatment or Punishment (1984); the safeguards guaranteeing protection of the rights of those facing the death penalty (1984); the UN Standard Minimum Rules for the Administration of Juvenile Justice (1985); the Basic Principles on the Independence of the Judiciary (1985); and the Convention of the Rights of the Child (1989). Forensic social workers can familiarize themselves with the documents and the UN committees designated to address the issues that are most relevant to their practice issue and/or population (UN, 1994). Forensic social workers as collaborators for human rights also can engage in targeted intervention strategies. The UN (1994) has 10 recommended intervention strategies to help advance human rights that forensic social workers can adapt. These intervention strategies are (a) working with local, regional, and national organizations to promote, develop, and implement needed changes in policy, planning, and programming on human rights issues; (b) recognizing and adapting existing services to maximize effectiveness; (c) developing and involving appropriate and qualified leaders from the community to identify, plan, and implement needed services and advocacy efforts; (d) developing self-capacities of those disadvantaged in their human rights; (e) organizing previously unorganized disadvantaged groups for self-help; (f) forming alliances with like-minded social and political movements; (g) developing mechanisms to enhance local and global awareness, including the use of mass media; (h) fundraising for the cause; (i) assessing the impact of actions undertaken in collaboration with persons and groups affected and associated groups and organizations; (j) documenting and disseminating information on human rights abuses; and (k) promoting legislation that benefits disadvantaged groups. If forensic social workers individually and collectively engage in one or more of these strategies in their local communities, these incremental efforts can make a significant difference as evidenced in the history of forensic social work reviewed.

Black Lives Matter (BLM) Movement

BLM is a global social and protest movement that emerged in 2012 largely as a social media campaign in response to the shooting death of Trayvon Martin in Florida. It campaigns against violence and systematic racism targeting Black people. Issues of concern to the movement include racial profiling, police brutality, and racial inequality, especially disproportionate justice involvement of Black people in the criminal justice (E. Day, 2015). Michelle Alexander’s (2011) The New Jim Crow has been influential to social work and related causes to address and understand mass incarceration of African Americans. Social work has been advocating for a response to these issues including in the field’s major education journals (e.g., Robbins, Vaughan-Eden, & Maschi, 2015). For more information about the Black Lives Matter movement, see http://blacklivesmatter.com.