Jan. 19, 2011 – In the past decade, the United States’ immigrant population reached a record high. Some of those immigrants may retain customs and practices that could be considered illegal or give rise to a cause of action in U.S. courts. Should these customs and practices be prosecuted or serve as the basis for civil action under American law?

That is one issue presenters and attendees will explore at the Wisconsin Equal Justice Conference – sponsored by the State Bar of Wisconsin’s Legal Assistance Committee and the Public Interest Law Section – March 4 at Marquette University Law School. The conference, which takes place every other year, addresses equal justice issues for low-income and disadvantaged people and communities.

The Hon. Delissa Ridgway, judge on the U.S. Court of International Trade in New York City, says the topic of cross-cultural justice has never been timelier or more important than it is today. Judge Ridgway, one of the presenters, says cultural issues arise in every area of the law, not just criminal cases, and are much more prevalent than most lawyers and judges realize.

“The types of cross-cultural cases that the courts are seeing are every bit as diverse as the parties – from personal injury, civil rights, and commercial litigation to divorce and child support, allegations of child abuse or neglect, and criminal matters,” said Judge Ridgway, whose research has uncovered clashes between cultural diversity and U.S. law. “Either lawyers are seeing cultural issues in their cases, or they are missing those issues.”

Judge Ridgway and other cross-cultural experts have been presenting the program – designed to promote “cultural competence” throughout the justice system – to large audiences across the country since 2008. Now, the presenters will bring the issue to Wisconsin.

“We want to open up the dialogue on this issue,” said Judge Ridgway, noting the interplay between culture and law. “Culture shapes law, and law shapes culture.”

The cultural defense issue

As the U.S. and Wisconsin draw more people from other countries with different cultural backgrounds, both federal and state courts have experienced an uptick in the use of “cultural defenses,” which refers to defending one’s actions based on the customs and traditions in a former homeland.

As of 2005, foreign-born individuals living in the U.S. totaled 35.2 million – 12 percent of the U.S. population – according to Judge Ridgway. And more immigrants are coming from more diverse countries with customs and traditions that are very different from the norm in the U.S.

In addition, when large numbers of immigrants settle together in concentrated pockets of the U.S., it is more likely that they may continue the customs and traditions of their homeland.

“Immigrants are no longer quickly assimilated into U.S. society,” Judge Ridgway said. “This means that new immigrants – in general – may not be exposed to, and thus less familiar with, U.S. cultural norms, values, and laws.”

George Washington Law School Professor Jonathan Turley, another conference presenter, says cultural differences may be highly relevant in determining the true intent of a defendant, and intent is vitally important to the rule of U.S. law.

“Neither lawyers nor judges can remain willfully blind to cultural aspects of cases when they affect the motivations or understanding of the parties,” Turley said. “The question is the degree of importance to give such cultural issues, which is the focus of this program.”

Professor Turley and Judge Ridgway will join two other cross-cultural experts – Rene Valladares, a federal public defender in Las Vegas, and Dr. Mark Mills, a nationally renowned forensic psychiatrist in Washington, D.C. – in presenting a highly interactive workshop that allows the audience to decide outcomes based on actual cases involving culture-based facts.

The presenters will highlight cases that span both the criminal and civil law context, and make the issue relevant for attorneys in all areas of practice.

The program is designed to spark a dialogue between cultural defense proponents and legal traditionalists, who may ask whether courts can punish one person and not the other based on cultural differences, or whether ignorance of the law can be raised as a defense.

Bringing the issue to Wisconsin

Wisconsin’s changing cultural landscape makes the topic a relevant one. Consider, for example, Wisconsin’s Hmong population, which is the third largest in the U.S. at an estimated 60,000. Many Hmong immigrants bring customs and traditions that were common and acceptable in their prior homeland but uncommon or illegal in the U.S.

For instance, in State v. Mong Lor, 2008AP852-CR (March 4, 2009), a Hmong defendant convicted for sexual assault of a child under the age of 16 argued that his trial counsel was ineffective for failing to raise a “cultural marriage defense.” He was not married to the victim under Wisconsin law, but argued that he was married according to Hmong custom.

The Wisconsin appeals court concluded that because Wisconsin does not recognize a cultural marriage defense, counsel was not ineffective for failing to raise it. But one cross-cultural expert says that a failure to invoke cultural defenses in the criminal law context may implicate the Sixth Amendment right to effective assistance of counsel.

In her article “Making Room for Culture in the Court,” Alison Dundes Renteln – a political science professor at the University of Southern California – explains that the Sixth Amendment may require attorneys to present “adequate information to ensure that the cultural context of a defendant’s action is well understood.”

This case is just one of many across the country in which cultural differences could impact the outcome of the case, or at least impact the culpability assigned to the defendant.

Marsha Mansfield, clinical associate professor of law at the U.W. Law School and a member of the conference planning committee, thought the legal community would benefit considerably from the cultural defense discussion.

“The increasingly diverse population has made cultural issues in the legal system a pressing topic, one that we thought would interest both civil and criminal lawyers, as well as people who work with populations of different cultural backgrounds,” Mansfield said.

Mansfield says the Wisconsin’s current legal system is not always well equipped to address cross-cultural issues, mainly because addressing it requires a court or jury to gain a deeper understanding of the culture at issue. Such understanding may require resources that aren’t available, like experts and interpreters, Mansfield says.

The presentation will bring the issue to the forefront in the state, and help participants identify the cultural issues that have arisen in legal cases across the country. Professor Turley said the goal of the cultural defense presentation is to identify a balance between law and cultural differences.

“There are obviously limits to the use of cultural defenses, and this program endeavors to consider the proper balancing of these issues,” Turley said. “In a pluralistic society, we face this issue more often than most countries.”

Registration information

The day-long program, which will be held March 4 at Marquette University Law School, costs $25 per individual. Visit the conference webpage to register and learn more about the schedule, topics, and featured speakers. Members can pre-register online or register on the day of the event (if space is available).

Contact Jeff Brown, the State Bar’s pro bono coordinator, at (608) 250-6177 with questions or comments about the program.

By Joe Forward, Legal Writer, State Bar of Wisconsin