Fair Pay for Public Defenders: If Mongolia Can Do It, Any Country Can

HUMAN RIGHTS MOVEMENT

Fair Pay for Public Defenders: If Mongolia can do it, any country can

On the first day of 2023, Mongolia’s public defenders received a 300% pay raise. A new law took effect on January 1st that ties the compensation of publicly funded defense attorneys to their courtroom counterparts, prosecutors. Although Mongolia ranks among the world’s poorest countries, it has achieved something that many of the world’s wealthiest states have failed to: pay equity between public defenders and public prosecutors.

Oyunchimeg Ayush (wearing blue in the photo), then the head of the Mongolian state agency responsible for public defense.

A central tenet of adversarial legal systems is that justice is best served when opposing sides are fairly matched. As the European Court of Human Rights put it, “[i]t is a fundamental aspect of the right to a fair trial that criminal proceedings…should be adversarial and that there should be equality of arms between the prosecution and defence.” Similarly, the Inter-American Court of Human Rights says that public defenders should be empowered to act “on equal terms with the prosecution.”

If the goal is a fair fight in the courtroom, it seems obvious that paying public defenders just a third of what prosecutors make would detract from that goal. Yet around the world, such pay disparities are commonplace, a phenomenon I saw firsthand as Global Policy Director for the International Legal Foundation, an NGO that builds public defender systems across the globe.

One reason for this disparity is that most domestic constitutions are silent on this issue. And even in the realm of international law, where the “equality of arms” principle is a well-established component of the bedrock international instrument on fair trial rights, courts have not interpreted this to require “material equality” between prosecution and defense. For example, this ICTR case found no fault with the fact that the prosecution’s team comprised 35 investigators deployed for several years, while the defense team had just two investigators paid to work for a few months. 

Instead, equality of arms is mainly conceived of in procedural terms, such as this HRC case where the court’s failure to allow defense counsel to cross-examine the victim was found to violate the principle. As applied to resources, equality of arms requires only that the resources available to the accused are “adequate” to present a full defense (as the Caribbean Court of Justice points out in §33).

Absent promising legal grounds, the battle for pay parity must be fought in the political arena. But there are major challenges here, too, mainly that elected officials are not usually keen on funding services for people accused of heinous crimes. Public defenders around the world have had to embrace vigorous strategies to compel political action, such as labor strikes and joining forces with prosecutors.

So how did Mongolia do it? Dedicated advocacy by a committed public official.

Oyunchimeg Ayush (wearing blue in the photo to the right), then the head of the state agency responsible for public defense, had grown tired of trying to recruit and retain qualified attorneys on salaries 70-80% lower than prosecutors and judges. She saw the unequal pay not only as unfair but as inefficient: high turnover increased recruitment and training costs and yielded a less-experienced workforce.

So, she started making her case for equal pay. She met with legislators, justice system stakeholders, and cabinet ministers, where she found a key ally in Khishgeegiin Nyambaatar, the Minister of Justice and Home Affairs. She also reached out to the ILF to ask for research on pay parity and examples of other jurisdictions who had achieved it. We pointed her to Argentina, which passed a parity law in 2015, and to the American state of Connecticut, which has had a parity law for 30 years and has been recognized for excellence. This partnership between local and international actors echoes the ongoing debate among human rights scholars like Gráinne de Búrca, Margaret Keck, Kathryn Sikkink and others about how human rights reform is actually achieved. Eventually, Mongolia’s Parliament, known as the Great Khural, amended the legal aid law to require that public defender wage rates equal those received by prosecutors. 

Mongolia’s achievement is all the more impressive in light of its economic constraints. The Mongolian government’s annual budget is roughly $6 billion. Juxtapose this with the American states of Florida and Oregon, whose failure to pass pay parity legislation in recent years was largely justified on budgetary grounds. Oregon’s annual budget? $67 billion. Florida’s? $101.5 billion

Though Mongolia’s achievement is monumental, even these reforms do not amount to true equality of arms between public defenders and prosecutors. In recent years, many commentators have argued that individual pay parity—between defense and prosecution lawyers—is insufficient to ensure an equal playing field. Instead, they argue that what is needed is institutional parity. For example, the leading international instrument on good practices for public defender systems calls for “fair and proportional distribution of funds between prosecution and legal aid agencies,” and the American Bar Association says that parity should extend beyond salaries to include workloads, technology, facilities, investigators, support staff, legal research tools, and access to forensic services and experts.

The inclusion of defense investigators is particularly important. Prosecutors aren’t the only government agents that help prosecute a criminal case. Much of the work of collecting evidence and facilitating witness testimony is done by the police. But police investigations are often subtly (or not subtly) shaped by the prosecution’s theory of the case, and police agencies have historically been less than eager to turn over exculpatory evidence. For this reason, public defender performance standards generally mandate that defense attorneys conduct their own independent investigations. A truer apples-to-apples comparison for public defense agency budgets should not only include the prosecution agency, but also some portion of the police budget, too. 

Mongolia’s revised law does not yet achieve parity on this institutional level, but individual parity is still a huge and significant step, one that is particularly remarkable in light of Mongolia’s economic constraints. Their achievement stands as an admonition to wealthier jurisdictions who claim that pay parity is too expensive. 

Congratulations to the members of the Great Khural, for passing this law; Minister Nyambaatar, for championing it; Oyunchimeg Ayush, for catalyzing this effort; and, above all, to the Mongolian public defenders whose pay finally reflects their vital role in achieving justice. 

May 19, 2023. Ben Polk, Bernstein Institute for Human Rights of NYU Law School. 

This post reflects the opinions of the author and not necessarily the views of NYU, NYU Law or the Center for Human Rights and Global Justice.

What are post-PACT Act possibilities for recognition and compensation of Iraqi victims of war toxins?

AREA OF WORK

What are post-PACT Act possibilities for recognition and compensation for Iraqi victims of war toxins?

The US PACT Act, enacted in 2022, offers unprecedented healthcare and compensation for 3.5 million US military veterans suffering from illnesses linked to toxic exposure. What are the possibilities for comparable recognition and support for Iraqi civilians who continue to live amidst the same war toxins, and what role can international law play in achieving justice?

April 2023 marks eight months since the PACT Act (Promise to Address Comprehensive Toxics Act) went into effect in the United States in August 2022. The PACT Act is “the most significant law ever helping victims exposed to toxic burn pits,” as described in US President Joe Biden’s February 2023 State of the Union address. Indeed, the PACT Act unprecedentedly offers healthcare and disability compensation for approximately 3.5 million veterans harmed by burn pits and other toxic exposures. It not only promises long awaited compensation for veterans who served in the US wars in Iraq and Afghanistan beginning in 2003 and 2001 respectively, but also covers veterans harmed by herbicides during the Vietnam War, 1990–91 Gulf War veterans, and those who served in numerous other locations including Syria, Yemen, Lebanon, and many more. Veterans will be presumed eligible according to dates and locations of service, and no longer have to prove the direct link between their exposure and their illness, often an impossible task.

No comparable mechanism is in place, however, to recognize and assist civilians facing ongoing toxic assaults in contaminated environments, including in Iraq. Iraqi civilians suffer from disturbingly high rates of congenital anomalies (birth defects) and cancers, leading to conditions of inescapable health devastation, something I deem “toxic saturation” in my research.

Does the PACT Act offer any hope for comparable support for non-US civilians? Or does the Act represent the latest iteration of a deeply flawed approach when it comes to the US’s response to victims of war toxins? In this post, I address these questions as they impact Iraqi civilians, and examine international law’s role for addressing irreparable harm experienced by civilians forcibly exposed to war toxins.

The Scale of “Toxic Saturation”

A 2019 Environmental Pollution study documented that children living in proximity to a US military base near Nasiriyah, Iraq, had an increased likelihood of congenital anomalies including neural tube defects (such as spina bifida, anencephaly, and hydrocephalus), congenital heart diseases, and musculoskeletal malformations (including missing right hand and paralyzed clubfoot). Doctors in Fallujah have long reported a staggering post-2003 surge in birth defects.

It is important to understand the scale of war toxins that the US military and its allies introduced to Iraq. More than 780,000 rounds of depleted uranium (DU) were used in 1991, and more than 300,000 rounds in 2003, as reported by Dutch peace organization PAX. As explained by the US Department of Veterans Affairs (VA), “DU is a potential health hazard if it enters the body, such as through embedded fragments, contaminated wounds, and inhalation or ingestion.”

The US military admits to using white phosphorus as an incendiary weapon in Fallujah in 2004. Incendiary weapons, as explained by Human Rights Watch (HRW), “produce heat and fire through the chemical reaction of a flammable substance, cause excruciating burns and destroy homes and other civilian structures.” The US later used white phosphorus again in Iraq and Syria in operations targeting the Islamic State. As described by HRW’s Stephen Goose, “No matter how white phosphorus is used, it poses a high risk of horrific and long lasting harm in crowded cities like Raqqa and Mosul and any other areas with concentrations of civilians.”

Another key source of toxic exposure for veterans is burn pits. As I wrote for Al Jazeera in August 2022, burn pits are open air pits of military waste, sometimes as large as football fields, used to burn and destroy weapons, chemicals, plastics, and medical and human waste, typically using jet fuel. Joe Biden has been vocal about his son Beau’s fatal brain cancer, believed to be caused by exposure to burn pits while serving with the US military in Iraq and working in Kosovo.

International Law and Compensation for Health Destruction

Compensation is essential for providing medical care and lifetime assistance to Iraqis struggling to survive due to toxic saturation. Veterans have faced health devastation following relatively short-term exposure, while civilians have been left behind to languish amidst war toxins. As noted in my research on water access, however, international law faces significant enforceability challenges regarding reparations for victims of environmental destruction in the context of armed conflict.

The US in particular has a discouraging track record. The US government long denied illnesses linked to deadly, dioxin-containing herbicides, including Agent Orange, experienced by Vietnam War veterans. Funding dedicated to Vietnamese civilians and environmental clean-up has been a mere fraction of what is needed, especially as children continue to be born with severe congenital anomalies nearly fifty years after the Vietnam War ended in 1975.

In principle, international law clearly provides the basis for reparations for Iraqi civilians. Additional Protocol I (1977) to the Geneva Conventions addresses the illegality of environmental damage and health destruction, and reparations for harm caused. Article 55 requires that care is taken in warfare “to protect the natural environment against widespread, long-term and severe damage.” This protection prohibits methods “which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population.” Article 91 states that parties that violate international humanitarian law shall “be liable to pay compensation.” The Environmental Modification Convention forbids military “environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury.”

Furthermore, monetary compensation is not the only aspect of reparations currently being denied for Iraqis. As Christine Evans writes, “There is a common misconception that reparations are synonymous with monetary compensation” when reparations actually encompass financial and non-financial meanings: “restitution, compensation, rehabilitation, satisfaction (disclosure of the truth), and guarantees of non repetition.”

Following the significant agreement on “loss and damage” funding at COP27 in November 2022, compensation for developing countries impacted by climate disasters, long on the agenda of climate justice advocates, was brought to the center of the world stage, though much work remains to be done to ensure compensation is provided to those in need of it.

Comprehensive environmental justice requires that all victims of environmental injustice, including both victims of the climate crisis and of toxic environmental assaults during and following war, are recognized and compensated. The PACT Act is an overdue victory for veterans and sets a precedent for compensation following wartime toxic exposure. The US government cannot stop here, only recognizing veterans affected by war toxins. The US must be pressured to acknowledge the existence and suffering of Iraqi civilians and all people harmed by war toxins, and to provide the care and compensation that is owed to them.

April 21, 2023. Carly A. Krakow, Visiting Scholar (AY 2022-2023)
Carly A. Krakow is a writer, journalist, faculty member at the NYU Gallatin School, and completing her PhD in International Law at the London School of Economics as a Judge Rosalyn Higgins Scholar and Modern Law Review Scholar. 

This post reflects the opinions of the author and not necessarily the views of NYU, NYU Law or the Center for Human Rights and Global Justice.

Prevention economies in Kenya: Peace, Power & Pragmatism?

PREVENTION AND CONFLICT

Prevention economies in Kenya: Peace, Power and Pragmatism?

While international security interests continue to hijack the ‘triple nexus’, local CSOs have used Preventing and Countering Violent Extremism (P/CVE) to allocate and redirect resources to their own needs, secure their mission in the face of a shrinking civil society space, and protect themselves from direct security interventions.

The Emergence of the ‘Preventing and Countering Violent Extremism’ Agenda

“Conflict prevention” is an umbrella term for a variety of interventions in the peacebuilding field that aim at addressing factors that could lead to violent conflict. SDG 16 in the UN 2030 agenda makes an important contribution to the realm of conflict prevention with the target goal to “Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels.” After years of hard counter-terrorism strategies, preventive measures to address the root causes of radicalization have also gained traction in the Global War on Terror. The United States, supported by the United Nations, have played a central role in this paradigm shift and the introduction of the concept ‘Preventing and Countering Violent Extremism’ (P/CVE), which replaced the dominant notion of ‘Counter-Terrorism’ (CT) in policy spaces in 2015. P/CVE has since become the globally accepted security strategy to address violent extremism, by underscoring a whole-of-society approach, as well as the localization of the fight against terrorism. While P/CVE is very much a security strategy, the agenda is now also closely linked to SDG 16 through the emphasis on strengthening civil society and government institutions, building social cohesion and resilience, addressing local grievances and respecting human rights. At the core of this union between P/CVE as a security strategy and peacebuilding lies the concept of ‘human security’, which is defined by the UNDP as ‘freedom of want’ and ‘freedom of fear’. ‘Human security’ focuses on the individual grievances that may incite violence. Consequently, many security approaches are no longer solely based on military power, but include humanitarian, development, and peacebuilding initiatives. Within this vein, CSOs have thus become integral to the realization of the agenda. As a result, critics argue that P/CVE has securitized and co-opted the civil society space, thereby forging a dangerous liaison between security actors and CSOs.

Securitization of the Civil Society Space in Kenya

In the first years, after its global adoption in 2015, the P/CVE agenda was implemented through National Action Plans (NAPs) with great enthusiasm from the international community. Particularly, the United States supported its allies around the world in the adoption of the agenda through technical assistance and donor funding. Kenya is one of the US’s main strategic allies in the Global War on Terror in Africa and has been at the forefront of adopting the P/CVE agenda in the last 7 years. While donors decreased their funding through COVID-19 and the presidential election in 2022, P/CVE is still one of the main donor priorities in Kenya to this day. Since the introduction of P/CVE in 2016 through a National Action Plan (NAP), many CSOs have geared towards the implementation of P/CVE programs to access funding for their programs. The international donor industry, which is heavily influenced by security interests in the Horn of Africa, has thus very much impacted the civil society space in Kenya. As the Kenyan government considers violent extremism a national security issue, every organization that implements P/CVE must report to the National Center for Counterterrorism (NCTC) under the 2012 Prevention of Terrorism Act (POTA) since a 2019 amendment. CSOs therefore have to report to the authorities about P/CVE programs, which can include sensitive information about the program participants. As a consequence, local communities have accused CSOs of espionage and surveillance, thereby criticizing the alignment of aid programs with security interventions. While the securitization of the civil society space in Kenya through the integration of security strategies into aid programs in the name of prevention has certainly led to many trust issues between CSOs and local communities, the question of agency and resistance of CSOs is central in understanding P/CVE in Kenya. CSOs are subject to complex negotiations between international security agendas, funding scarcity, and local agency. I will briefly discuss the entanglement of the security-oriented P/CVE agenda in three key areas in the aid architecture: human rights (1), humanitarian and development aid (2), and peacebuilding (3).

The Entanglement of P/CVE with the Aid Architecture

In the aftermath of heavy security crackdowns against Muslim communities after the Westgate mall attack in 2013 and counter-terrorism operations along the coast, Kenyan human rights organizations were very vocal about the human rights violations including forced disappearances and extrajudicial killings committed by Kenyan security forces and brought international attention onto the situation. As a response, the government listed two leading human rights organizations as terrorist entities which resulted in the freezing of their bank accounts. After a legal battle the court finally ruled the accusation as unjust and commanded the unfreezing of assets. Nevertheless, the incident sent a clear message to human rights organizations nation-wide. It is therefore, perhaps, surprising how many human rights organizations are currently actively implementing P/CVE programs despite of the previously mentioned issues. While the P/CVE agenda commits to a human rights-based approach to preventing violent extremism, the often-times close involvement of security forces in the implementation of P/CVE also endangers the integrity of CSOs. I would argue, however, that P/CVE can and should also be understood as part of a pragmatic response by human rights organizations that engage in a difficult balancing act between shining light onto human rights violations and their own security. The close relationship with the government and security forces in the implementation of P/CVE seems to allow human rights organizations to expose certain incidents without feeling immediate repercussions. Additionally, at the coast, CSOs established a consortium to protect each other from similar accusations. Human rights organizations and other CSOs also contest the 2019 amendment of POTA that obliges all organizations that implement P/CVE to report information to the NCTC. They are thus forced to find a pragmatic path between dialogue with the security forces and protection of their own work.

Humanitarian and development programs are frequently also part of P/CVE responses in Kenya. Especially in the North-Eastern region of Kenya, humanitarian and development interventions converge with security strategies to tackle violent extremism. The climate crisis has led to the worst droughts and food emergency situation in forty years. The redirection of funding channels to European countries through the Ukraine war and global wheat price crisis also partly contribute to the lack of funding to address humanitarian needs in the region. Additionally, foreign actors often prioritize other countries as they consider Kenya as a middle-income country. Since P/CVE continues to be a funding priority for many donors in the North-Eastern region of Kenya, many local CSOs apply for P/CVE funding to allocate resources and later redirect them to humanitarian assistance programs. Local CSOs, in asserting their agency, therefore also take advantage of the P/CVE industry to access funding that they would otherwise not receive in a situation of humanitarian emergency.

Finally, peacebuilding CSOs in particular have shifted their focus to the implementation of P/CVE as a consequence of the huge donor funding supply for these programs, oftentimes using the labels of “P/CVE” and “peacebuilding” interchangeably. While both P/CVE and peacebuilding are very broadly defined terms, the label P/CVE raises a lot of suspicion in local communities and creates security risks for local aid workers who implement these programs. Nevertheless, P/CVE is also an instrument for local communities to keep security forces at arm’s length. Many P/CVE programs contain community policing as an integral element which redirects security governance to the local community. It appears that local communities are able to contain direct police engagement in the community, which decreases incidents of police brutality against youth. While many local peacebuilders explain how violent extremism actually is not a main concern in their communities, P/CVE seems to be an important tool to not only gain funding but again paradoxically help secure the community against government crackdowns.

Ultimately, local CSOs in Kenya demonstrate great pragmatism in the implementation of P/CVE by balancing security concerns and local needs within an increasingly competitive donor market. At the beginning, P/CVE might have been a top-down approach to tackle local insecurities that are of concern for international actors and global stability. While international security interests continue to hijack the ‘triple nexus’, local CSOs have used P/CVE to allocate and redirect resources to their own needs, secure their mission in the face of a shrinking civil society space, and protect themselves from direct security interventions.

April 11, 2023. Nora Naji, Visiting Scholar (AY 2022-2023)
Nora Naji is a PhD candidate at the University of Basel, and an associated researcher at swisspeace. Her dissertation ‘Commodifying peace: Intimate warfare and prevention economies in Kenya’ builds on the securitization premise and sets out to situate the agenda of “Preventing and Countering Violent Extremism” (P/CVE) in Kenya within a larger discussion of prevention economies.

This post reflects the opinions of the author and not necessarily the views of NYU, NYU Law or the Center for Human Rights and Global Justice.

Can human rights provide a hopeful vision of a more equal future?

INEQUALITIES

Can human rights provide a hopeful vision of a more equal future?

Rampant inequality around the world has forced the international human rights community to confront a basic yet controversial question – what to do about it?

International human rights have struggled to provide satisfactory answers to poverty and inequality since their inception. From debates around the use of political means to address social issues in the aftermath of World War II, to more recent discussions on the false dichotomy between social justice and human rights, much has happened within the human rights field in terms of its engagement with socio-economic issues. Yet answers to the question of what a rights-based vision to end poverty and inequality could look like continue to prove elusive.

For much of the 20th century, progressive leaders and thinkers focused their message on the hopeful possibility of a better future. Workers rallied for better working conditions and women demonstrated for more freedoms and rights. Human rights provided a positive narrative on which to build these demands. Today, however, hopeful narratives about a brighter future no longer have the galvanizing effect they once had. Climate change is irreversible and political leadership is clearly not up to the task. Promised technological advancements have brought exclusion and precariousness in the gig economy. Undue privileging of pharma interests in political decisions has meant that COVID-19 vaccine distribution remains deeply unequal. The list keeps going, and yet the human rights community struggles to provide a positive, proactive vision of the future.

The pandemic has prompted many to call for a redesign of the economic system, and this has provided an opening for actors in the human rights field. The World Economic Forum, for example, argued for a “Great Reset,” an opportunity to “reimagine” the economy towards “stakeholder capitalism.” In this apolitical, conflict-less vision of the world, economic problems exist out there, in a vacuum, waiting for someone to solve them. Conflict can be resolved through a “social contract” and “agreement on shared values” between governments, businesses, and individuals. But can there be a social contract and an agreement on shared values while Jeff Bezos had “the best day ever” as he flew into space for $28 million, and the equivalent of 125 million people have lost their jobs since the start of the pandemic? Can there be “shared values” when the poorest half owns 2% of total wealth and the richest 10% own 76%?

Although there is now growing consensus that inequality is problematic in more ways than one, the question is whether human rights provide a positive, hopeful vision to end it. But, for this to happen, the human rights community must first face a prior, very basic question – what to do about it? Should human rights aim at eradicating inequalities or simply at “reducing” them? Even if we agree on what the goal is, how do we accomplish it? Do we reduce the number of poor or the number of billionaires?

These seemingly basic questions point at broader, generalized misunderstandings of the relationship between poverty and inequality that the human rights field has not fully solved yet.

Those with an interest in maintaining the status quo continue to spread damaging ideas that further entrench inequality based on the concepts of “meritocracy” and “trickle-down” economics. At their most basic, these fallacies argue that when those at the top are rewarded for their ability and effort, their high earnings will continue to incentivize them and will also benefit those at the bottom, notably in the form of jobs, higher wages, and better products. Following this, government policies should support the wealthy, including through tax breaks at the top, because they will somehow “trickle down” to the poor.

As it turns out, these beliefs are particularly present in countries where income inequality is highest. They are typically held by those who already see high inequality levels as legitimate, which is in turn typically stronger in individuals with higher incomes. The perceived gap between the poor and the rich in terms of their “merit” also happens to grow in more unequal societies, leading people to assume that inequality of income correlates strongly with inequality of merit. In other words, higher inequality levels lead those with higher incomes to perceive the poor as less “meritorious” and more deserving of their socioeconomic situation, and therefore to justify inequality on the basis of unequal merit.

Moreover, while higher inequality damages societies in their entirety, it harms some more than others. People in poverty and those on low incomes are particularly impacted by inequality. With higher inequality, their incomes decrease, their educational attainment drops, and their health worsens. In contrast, individuals on high incomes and wealth remain largely undisturbed by inequality. Their personal connections, used to access high-paying jobs, good quality schools, and top healthcare, endure.

And yet addressing inequality as a precondition for poverty eradication remains taboo. Charity towards the poor is perceived as a generally accepted response to poverty, whereas questioning inequality, which necessarily leads to questioning the legitimacy or appropriateness of top incomes and wealth accumulation, is still a political anathema.

The international human rights community can and should question these beliefs and provide a renewed hopeful vision of a more equal future. For that, looking at poverty from a human rights perspective must necessarily entail examining income and wealth concentration at both the bottom and the top – beginning with claiming tax justice, making social protection universal, demanding adequate funding for public services, and redefining what long-term public investments look like. The future of human rights largely depends on our ability, as human rights advocates, to develop an expertise in these topics, dispel damaging myths, and strategically infuse the language of rights and obligations within them.

May 25, 2022. Paula Fernandez-Wulff, Visiting Scholar (AY 2021-2022).
Paula Fernandez-Wulff is the Senior Advisor to the UN Special Rapporteur on extreme poverty and human rights and Scholar in Residence, Center for Human Rights and Global Justice, New York University School of Law. 

This post reflects the opinions of the author and not necessarily the views of NYU, NYU Law or the Center for Human Rights and Global Justice. The views presented here should also not be attributed to the United Nations or any of its agencies.

In Markets We Cannot Trust: What the Texas Storm Reveals about Privatized Services

INEQUALITIES

In Markets We Cannot Trust: What the Texas Storm Reveals about Privatized Services

Millions of people in Texas went without power and heat during a brutal winter storm. This avoidable catastrophe was the result of trusting the market and private interests to deliver the public good.

“I’m cold and huddled under blankets,” my mom texted me last week, on her second day without power. She is one of millions in Texas, the largest energy-producer in the United States, who went days without electricity or heat during the recent winter storm that killed 30 people. While local politicians moved quickly to falsely pin the blame on renewable energy, the breakdown in Texas demonstrates the folly of relying on private actors and markets to prepare for climate change, to look after the public good, and to guarantee basic rights.

The Texas power system is built on a “total trust in markets” and the suffering last week is a consequence of that misplaced faith. In 1999, the state deregulated its electricity system to a patchwork of private companies, and it now relies on “nearly unaccountable and toothless” regulatory agencies and voluntary guidelines.

The deregulated private companies predictably chose to prioritize short-term profit over investments in the system. They did not winterize the power grid—ignoring the advice of federal authorities and the lessons of a similar 2011 storm—and neglected to maintain a reserve margin for demand surges, unlike every other power system in North America.

The fallout has been unimaginable. More than 4.2 million households lost power in temperatures as low as 4 degrees Fahrenheit. Although the full death toll won’t be known for weeks, at least 30 people died in Texas, including six experiencing homelessness. Hundreds more were poisoned by their efforts to keep warm, such as running generators indoors. People slept in their cars. Clinics shuttered. People of color and low-income individuals were disproportionately affected, with predominantly Black and Latinx neighborhoods among the first to lose power.

Meanwhile, the deregulated market means some companies will receive an appalling windfall from the storm. Sky-high demand for energy during the cold weather drove prices through the roof, and now people who did not lose power face outrageous energy bills. “My savings is gone,” remarked one Dallas resident who now faces a nearly $17,000 bill. In the city of Denton, the rate per megawatt hour jumped from less than $24 to $2,400. The city will pay over $207 million for four days of power which is more than it spends in a typical year.

However, despite its obvious failures, ideological commitment to the market remains on full display. Before the lights were even back on, politicians were lying about the cause of the outages and exploring how further deregulation could “help.”

This anemic vision of government, which is hardly shared by all Texans but too often dominates policymaking at the state level, can become a self-fulfilling prophecy. Sensible policies that guarantee basic rights but might diminish profit—such as regulation, planning, taxation, and public provision—are routinely written off as extreme because the government has successfully been recast as primarily a facilitator of markets. Capital-friendly decisions are conveniently, if erroneously, peddled as “win-win” and protective of individual freedoms. Neoliberalism has been internalized by the body politic.

Unfortunately, the market alone will never deliver equitable and reliable access to essential services. It cannot, on its own, guarantee the fulfillment of basic rights. Instead, running public services as an investment risks marginalizing their non-commercial purposes. This is why human rights activists, experts, and monitoring bodies routinely raise concerns about the risks of relying on the private sector to provide critical services. Running public services for a profit without robust regulation can lead to inequitable access, high costs, exclusion, and poor maintenance, while wasting taxpayer money and thwarting accountability.

As others have written, this crisis should serve as a “profound warning” in the context of climate change, which will lead to more frequent extreme weather events. Roads, water systems, power grids, housing, and other essential infrastructure desperately need upgrades. Texas shows us that continuing to rely on profit-focused companies to make those changes will leave many stranded. However, it doesn’t have to be this way. Around the world, energy systems are increasingly brought back under public control through a process called remunicipalization, in part due to private actors’ repeated failures to transition to renewable energy.

As people in Texas stood for hours in lines to enter bare grocery stores for the second time in less than a year, my sister wrote to me: “I now feel acutely aware of the fact that I will not be taken care of in a disaster. People will not turn on your lights, people will not give you heat when it’s freezing, people will not make sure you have good drinking water, and people will not make sure you don’t die of a horrible illness.” If markets continue to be allowed to stand in for government, she will be right.

February 23, 2021. Rebecca Riddell, Human Rights and Privatization Project at the Center for Human Rights and Global Justice at NYU School of Law.