Reducing Indigenous Contact with the Court System

The Bureau of Crime Statistics and Research released a paper in December 2010, entitled "Reducing Indigenous Contact with the Court System".

Highlights from the BOCSAR media release:

• In 2009, Indigenous Australians constituted less than 2 per cent of the NSW population but accounted for 13 per cent of all persons charged with a criminal offence. The Bureau estimates that more than 80 per cent of Indigenous defendants currently appearing in court will at some stage return, most within less than two years. 

• A 10 per cent reduction in the return rate would reduce the number of Indigenous court appearances by 2,558 per annum or approximately 32 per cent. A 20 per cent reduction in the rate of return would virtually halve the number of Indigenous people turning up in court, reducing the ratio of Indigenous to non-Indigenous court appearances from 1 in every 9.6 cases to 1 in every 18.6 cases. 

• According to the Director of the Bureau, Dr Don Weatherburn, the best way to reduce the rate of Indigenous re-offending is through effective rehabilitation programs. 

“Programs that combine intensive supervision with treatment have been found to produce an average 16 per cent reduction in reoffending. Given the strong influence that drug and alcohol abuse have on the risk of Indigenous arrest, it would also seem prudent to increase Indigenous access to drug and alcohol treatment."

In the Illawarra Mercury on Monday 24/1/11, Michelle Webster reports reaction to the BOCSAR paper on the South Coast. Veteran Aboriginal Legal Service solicitor Gary Pudney told the Mercury that indigenous reoffending could be cut through improved access to rehabilitation programs, but said many offenders were missing out on effective treatments because of a lack of available places.

"The best way to get people out of the criminal justice system is to get them employed and the best way to get them employed is to get them off drugs and alcohol.

"But there is a lack of places in these programs. We can spend days or weeks calling trying to get someone in," Mr Pudney said.

According to the the article, a spokesman for the Attorney-General, John Hatzistergos, said that the government was trying to reduce the over-representation of indigenous people in the court system through a number of court-based and rehabilitative programs.

Recently, Barry O'Farrell pledged an additional $10 million to expand rehabilitation places.

It isn't smart to hold election auctions on tougher penalties.

By Hal Sperling and Alex Wodak, SMH, June 17, 2010:

IN THE run-up to the next state election, Victoria has started a law-and-order auction. Until now, unlike New South Wales, Victoria has avoided such things.

Law and order has been an election issue since the 1980s in NSW, yet for the 2008-09 financial year, the state had an imprisonment rate of 184.8 per 100,000 adults, nearly double that of Victoria at 103.6 per 100,000.

Crime rates are lower in Victoria across nearly all categories. And, worldwide, there is no clear positive relationship between the severity of prison sentences and the crime rate.

The law-and-order auction assumes that people want tougher sentences. Some do. For victims of crime and their families, no sentence is heavy enough. They want revenge. That is understandable, but it is not an objective response.

Retribution is a different sentiment. It is a response to wrongdoing shared by the community at large. It explains why people used to take their children and a picnic lunch to public hangings.

We have gone past that now, but retribution is still there. It is the chord that politicians strike when they call for tougher penalties.

It cannot be assumed, however, that retribution is now the prevailing attitude in the community. Recent studies in Britain indicate that a lot of people are more interested in offenders making recompense than in punishment for the sake of punishment. That would suggest that the community would be just as satisfied - perhaps more satisfied - with visible and useful community service as the penalty for much of the crime that currently attracts a prison sentence.

Retribution and making recompense are emotional responses. There is another side to the coin - commonsense.

The lonely battle against solitary confinement

By James Ridgeway and Jean Casella, The Guardian, 19 January 2011:

The punitive incarceration of alleged WikiLeaks source Bradley Manning is cruel, certainly, but far from unusual in the US.

For the past few weeks, progressive commentators have been burning with outrage over the prison conditions endured by accused WikiLeaks source, Private Bradley Manning. For more than seven months, Manning has been held in 23-hour-a-day solitary confinement at a Marine brig in Quantico, Virginia, denied sunlight, exercise, possessions, and all but the most limited contact with family and friends. The conditions of his detention are being discussed, lamented and protestedthroughout the left-leaning blogosphere, and few of those taking part in the conversation hesitate to describe Manning's situation as "torture".

Bradley Manning's treatment undeniably deserves this attention. But while Manning's punishment is cruel, it is far from unusual. According to available data, there are some 25,000 inmates in long-term isolation in America's supermax prisons, and as many as 80,000 more in solitary confinement in other facilities. Where is the outrage – even among progressives – for these forgotten souls? Where, for that matter, is some acknowledgment of their existence?

Politicians still dancing to the beat of the blue light disco

by Alex Mitchell, SMH, 22 January 2011:

YOU can always tell when a state election is imminent because the NSW cops suddenly become furiously proactive.

On past form, an unusually large number of raids will take place in the next few weeks and no expense will be spared to obtain photographs and footage of all the excitement.

The media will be flooded with pro-police stories, while the Police Association of NSW will start menacing politicians with a shopping list of new laws, more specialised equipment, extra recruitment and even more generous working conditions.

For the past 16 years of Labor rule, the high-pressure tactic has worked. Whatever the police wanted, they got because the government was determined to keep the cops “on side”.

Former premier Bob Carr had a simple electoral rule: don't let the Liberals outflank us on law and order. Thus the police received Glocks, Tasers, helicopters, a water cannon and much more.

Copland

By Jack Marx, news.com.au, 19 January 2011:

Everywhere one goes today, one hears the sound of regular people either outraged or bewildered by the leering presence of authority. There are cops with dogs at Newtown Station, making sure nobody’s got any fun in their pockets, faux cops at Sydney’s Luna Park, making sure nobody photographs the children, and uniformed baboons at your local pub, keeping alive the latter-day Aussie tradition that every peaceful night out must feature at least one ridiculous altercation with a bouncer. Just last week, a jog around my local athletics track was interrupted by a council worker, draped, naturally, in the harness of modern beautness, who demanded – I kid you not – that I cease my athletic behaviour lest I wear out the grass for others who might wish to engage in future athletic behaviour. With Australia Day approaching, it’s worth having a quick think about Australia’s apparent love affair with being told what to do. 

Most Australians are proud of the fact that this nation was born of convict stock. But this most over-jerked take on our history overlooks a somewhat uncomfortable truth – that one in five of the “first Australians” were effectively cops. In all of history, there is perhaps no nation that began its life so top heavy with authority, a whopping 20 per cent of the population licensed to bully, dob and sticky beak on the others, their careers enhanced by doing so in a hierarchical system in which the only possibility for advancement was through brown-nosing to one’s superiors.

O'Farrell pledges 10 million for rehab

From the SMH, 19 January 2011:

The NSW opposition has pledged $10 million to boost rehabilitation services for drug and alcohol problems in an election promise they say will help an extra 5000 people.

NSW Opposition Leader Barry O'Farrell on Wednesday announced the four-year funding promise, which would see government and non-government rehabilitation services tendering for the additional funding.

"This program today will enable an additional 5000 people to get treatment, to get assistance to get off their treatment, and will have the added benefit of relieving pressure on emergency departments, on acute beds in hospitals, which too often, because of the lack of these services, are filled up with those who suffer addiction," he said.

The Salvation Army's Clinical Director of Recovery Services, Gerard Byrne, said the funding would help organisations like his meet the growing demand for help.

"For a long time we and other organisations such as ours have struggled to meet the demand for services," he said.

"The provision of such a good quantum of funds to provide a sustainable and viable financial basis on which we can then provide our services is very welcome."

The NSW state election will be held on March 26.

But Darren Marton, director of The No-Way Campaign and independent upper house candidate at the upcoming poll, expressed disappointment that funds had not been committed to prevention services.

"Don't get me wrong, I'm all for rehabilitation, but I think our focus and direction should be first and foremost on prevention," he said.

"Trying to turn around a generation over the next couple of generations to make drugs not as prevalent as they are."

Assange's legal team's skeleton argument on strong ground

By Greg Barns, Crikey, 12 January 2011:

Julian Assange’s lawyers are going for the jugular in their attack on the Swedish and UK government’s attempts to extradite Assange to Sweden where there is an investigation under way concerning his alleged in involvement in sexual offences. Not only do Assange’s lawyers run the usual arguments about the offences not being extradition offences — that is, there are no like charges in English law — but they say that the Swedish prosecutor who wants Assange extradited has no authority to do so, and that the whole thing is an abuse of process.

Strong stuff, but if the 35-page skeleton argument that Assange’s legal team has filed overnight with the City of Westminster Magistrates Court, ahead of the hearing in early February, is correct in its view of the law, then the Swedes are cactus! (See video here of Assange’s brief appearance at Belmarsh Magistrates’ court in London overnight.)

The Swedish prosecutor who is handling the Assange sex offences matter, Marianne Ny, a Public Prosecutor in Gothenburg, has no power to seek extradition, say Assange’s lawyers. The submission cites media statements by Ny and correspondence she had with the Australian High Commission in London in December in which she made it clear that her “purpose in requesting an arrest warrant, and subsequently an [extradition warrant], against Assange, was not in order to prosecute him, but in order to facilitate his ‘interrogation’, i.e. to facilitate his questioning.”

Assange’s lawyers correctly cite a line of strong and unambiguous English and European legal authority that says that you cannot extradite a person merely to question them. And you certainly cannot do so when there is documented evidence, as there is in this case, that Assange’s lawyers have repeatedly told the Swedish authorities that Assange was more than happy to meet them for questioning.

A view from the Bench

One of the most respected figures in the NSW criminal justice system is Justice Reg Blanch, Chief Judge of the District Court.

He served as NSW's first Director of Public Prosecutions, before then overseeing the administration of the District Court across the State. He drove huge improvements in the efficiency of the Court, including cutting the long waiting lists for trials, a reform which had a very real effect on both victims and prisoners remanded in custody. At the same time, he has exerted a huge influence over the largest Court in the State, the Local Court, by deciding appeals from Magistrates in Sydney, as well as continuing to sit in the Court of Criminal Appeal.

Justice Blanch rarely speaks in public, but last June gave a speech to a Legal Aid Commission conference that was reported here by Joel Gibson in the SMH. It was reported that Blanch:

• made an extraordinary call for a rethink on law and order policy in NSW, saying excessive sentences and imprisonment rates have created a billion-dollar-plus prisons budget without a corresponding increase in public safety.

• called for a ''calm review'' of bail laws, standard non-parole periods, mandatory disqualification for some driving offences and the definition of some sexual assaults, which had all contributed to a record prison population of more than 10,000

• said that NSW had lost the correct balance between the need to protect the community and the cost to the community of that protection.

• had, by his comments, contradicted the claims of the state government that packed jails were keeping people safer.

The following of Blanch's speech was also reported:

• While Victoria spent half as much on jailing people, he said, ''I venture to suggest that there is no greater level of safety in NSW and that the level of crime is no less as a result of the increase in sentences.

• ''Jail sentences must be imposed in many cases, and in some the sentence should be substantial, but the real question is: how much is enough?

• ''Do we need to spend a billion dollars on prisons and could we achieve the same ends at a lesser cost?''

• A quarter of the state's prisoners had not yet been convicted of an offence, he said. ''On the whole it has to be said almost all persons on bail answer their bail and, although there are instances of offences committed on bail, it cannot be said to be a common occurrence.''

• Sentencing had also become disproportionate to many crimes, with the result that offenders were held in jail for longer, meaning many had ''extreme difficulty'' re-integrating into society, he said.

• And driver's licence cancellations had resulted in the jailing of drivers who could not be considered dangerous. This hit rural communities especially hard.

Women prisoners set up to fail in 'dumping' jails

By Inga Ting, Pacific Media Centre, 5 January 2011:

Most of the growing numbers of women who are imprisoned in NSW in Australia are suffering psychiatric disorders. In a rare glimpse into Silverwater Corrections Centre,Inga Ting investigates and finds that imprisonment itself may be making mental health problems worse.

Jennifer*, a mother and university graduate, says she would not have considered herself at risk of suicide or self harm when she entered the Australian prison system early in 2010. Before February, when she was arrested for a crime committed more than 12 years ago, Jennifer was enjoying a successful academic career, leading a vibrant social life and flourishing in a stable, long-term relationship.

But after just six weeks in Silverwater Women’s Correctional Centre – a maximum security facility where remand detainees are housed alongside the state’s most dangerous women offenders – her self-confidence, her outlook and her life are in tatters.

NSW Election 2011

In ten weeks time, New South Wales will elect a new government.  If the bookies and pundits are to be believed (not to mention those inside the Labor Party) there is no prospect this election will be close and it now seems the only real contest will be fought over the size of the Coalition majority, tipped to be somewhere between healthy and massive.

It is shaping as the most unusual election seen in New South Wales for a very long time. Word has well and truly got out that the electorate are armed with intent to inflict grievous bodily harm on Labor. Even if Barry O'Farrell died or was charged with a criminal offence, he could be replaced and the Coalition still win in a canter.  Indeed, the drover's dog could lead them to victory.

Seeing then the Coalition bears no real onus to shift votes, will they have any need to take part in the type of "law-and-order" campaign with which NSW has become so familiar? Perhaps not, although Labor, fearful of a wipeout, and unable to change their spots, may still draw them into one.

With this in mind, RG intends to examine the major parties in the next ten weeks, and determine their policies on issues surrounding the criminal justice system.

Throughout their sixteen year reign, Labor has a shown a great fondness to use imprisonment as the primary lever of policy. During this time the NSW prison population has risen sharply. Can we expect any changes in 2011 and beyond? In an interview on Stateline between Quentin Dempster and Police Minister Michael Daley last May, we are given a strong indication that Labor believes imprisonment works.

Here's a part of the transcript, which also includes an interview with Shadow Police Minister, Michael Gallacher, himself an ex-police officer, who observes that teenagers do "apprenticeships in crime" in the juvenile system, and speaks of a need to prevent them from going on to complete a "masters in crime".

Stateline - 18 May 2010

As we all sleep more soundly in our beds knowing police will soon have the capability to catch more criminals, Dr John Buchanan, an expert on incarceration rates, unemployment, social and workforce trends, has a warning for police and for the rest of us: Australia now has a growing prisoner population and we're trending towards the United States in locking up marginalised and criminalised citizens.

JOHN BUCHANAN, SYDNEY UNI: Two per cent of the adult male population in the US is in jail. It actually keeps their unemployment rates down. That's actually ...

(Laughter from audience).

That's actually the equivalent of what we call the long-term unemployed. In the US they call them inmates. I was thinking for you guys, for policing, that's something to reflect on, because if you look at Australia, it was like Norway and it's becoming like America. So we've got a long way to go, but they are dramatic shifts, and if you look across all countries, Australia's been one of the fastest shifters to rely on the rising incarceration rates for maintaining social order.

QUENTIN DEMPSTER: Stateline asked the Government and Opposition Police spokesmen if it they were happy with the NSW and Australian incarceration trends.

MICHAEL DALEY: As Police Minister, and I can speak for the Police Commissioner and for all of his record 15,000-odd troops, we have a very simple job to do and that is simply to keep people safe and feeling safe. And this graph issued by the Bureau of Crime Statistics bears out what you say. As we see the blue line there trending up, the rates of incarceration trending up, the pink line, which is the crime statistics trend, correspondingly down. For every point that pink line falls, it means one of your viewers has not fallen victim to someone who wants to hurt them or their family. That's our charter: stopping people becoming victims before the criminals get hold of them.

QUENTIN DEMPSTER: You make no apology for the incarceration rates and the likelihood that it will go up?

MICHAEL DALEY: Does government have a responsibility to make sure that people from lower socio-economic groups and those that you talk about as marginalised get the welfare that they deserve and the safety nets are in place? Yes, we do. Do we have a responsibility to make sure that they have an access to education and employment so they don't embark upon a life of crime? Yes, we do.

MICHAEL GALLACHER: Every person you've got in jail are there because there are victims out on the street. And we believe that the direction that we are travelling isn't necessarily in the best interests of the community. We do need to look at measures that we can intervene much earlier on. We've got young offenders now, 11, 12 years of age - four years from now when they've completed their apprenticeship in crime in the juvenile justice system, they've still got two years to run, and I think we've gotta do a darn site more to try to get those people out of the pathway that they're currently travelling and get them into one where we can actually prevent them completing an apprenticeship beyond that and indeed a masters degree in crime.

The Potential of Social Impact Bonds

Dr Peter Shergold, the CEO of the Centre for Social Impact, discusses the idea of Social Impact Bonds with their developer, Sir Ronald Cohen, director of Social Finance Ltd, a social investment bank in London, here.

Put simply, a social impact bond allows the private sector to invest in areas of traditionally government-funded service delivery, and receive scaled returns, paid by the government, upon target social outcomes being achieved.  These returns are funded by the savings to government achieved by the improved social outcomes, for example, a reduction in the re-offending rate of a group of prisoners, which reduces future public expense on police, courts and prisons.

To find out more about Social Impact Bonds, see a paper by Social Finance entitled "Towards a New Social Economy"

Drug experiment: what happens when an entire country legalizes drug use?

From the Boston Globe, January 16, 2011:

In the end, there was no way to ignore the problem, and no way for politicians to spin it, either. Young people across Portugal were injecting themselves with heroin. HIV and Hepatitis C infection rates were soaring. And Casal Ventoso, a neighborhood in Lisbon, had become a dark symbol of this small nation’s immense drug problem. Junkies openly injected themselves in the street, dirty syringes piled up in the gutters, alleyways reeked of garbage and human waste, and no one seemed to care.

“Welcome to Lisbon’s drugs supermarket,” a police officer said to a visitor in 2001, surveying the daily depravity with a shrug. But João Goulão, Portugal’s drug czar, admits now that the police officer was probably understating it. “Casal Ventoso,” Goulão said recently, “was the biggest supermarket of drugs in Europe.”

Faced with both a public health crisis and a public relations disaster, Portugal’s elected officials took a bold step. They decided to decriminalize the possession of all illicit drugs — from marijuana to heroin — but continue to impose criminal sanctions on distribution and trafficking. The goal: easing the burden on the nation’s criminal justice system and improving the people’s overall health by treating addiction as an illness, not a crime.

As the sweeping reforms went into effect nine years ago, some in Portugal prepared themselves for the worst. They worried that the country would become a junkie nirvana, that many neighborhoods would soon resemble Casal Ventoso, and that tourists would come to Portugal for one reason only: to get high. “We promise sun, beaches, and any drug you like,” complained one fearful politician at the time.

But nearly a decade later, there’s evidence that Portugal’s great drug experiment not only didn’t blow up in its face; it may have actually worked. More addicts are in treatment. Drug use among youths has declined in recent years. Life in Casal Ventoso, Lisbon’s troubled neighborhood, has improved. And new research, published in the British Journal of Criminology, documents just how much things have changed in Portugal. Coauthors Caitlin Elizabeth Hughes and Alex Stevens report a 63 percent increase in the number of Portuguese drug users in treatment and, shortly after the reforms took hold, a 499 percent increase in the amount of drugs seized — indications, the authors argue, that police officers, freed up from focusing on small-time possession, have been able to target big-time traffickers while drug addicts, no longer in danger of going to prison, have been able to get the help they need.

Breaking the Cycle

Transcript and podcast from The Law Report, ABC Radio National, 4 January 2011:

Summary

For years Bethlehem House, a homeless men's shelter in Hobart, was the first port of call for many released prisoners. But without life skills or support, a big percentage soon reverted to crime.

In response, the shelter got proactive. Case workers spend time in jail with prisoners, identifying their problems and needs. And upon release these are addressed and stable accommodation provided.

The results? Very impressive!

Penal reform in South Carolina: prisons full, coffers empty

From The Economist, 22 July 2010:

ON THE outskirts of Columbia, South Carolina’s capital, lies a rolling swathe of farmland where cattle graze, tomatoes sprout and razor wire glints in the afternoon sun. This well-tended campus is home to seven of the state’s 28 prisons, including both Broad River, where inmates sentenced to die are lethally injected or electrocuted, and Campbell, which houses prisoners on work-release, who spend their days at fast-food restaurants or laundries and return to their “dorms” to sleep.

Part of their earnings goes to repay the cost of jailing them. And it is a cost: from 1983 to 2008 spending on the state’s prisons increased more than sixfold, as its prison population rose from just over 9,000 to almost 25,000. That rise had several causes, among them the greater number of people imprisoned for non-violent crimes and the heavier sentences that came with new laws laying down mandatory minimum terms.

Another factor was the decision of South Carolina, like many states, to adopt statutes in the mid-1990s that said certain criminals had to serve 85% of their sentence before becoming eligible for parole. Those serving such sentences now account for 42% of the state’s total prison population. Not only do these inmates clog the system, they are also less likely to take advantage of vocational training or education in prison, and more likely to be put back behind bars after their release.

On June 2nd South Carolina joined a growing number of states trying to bring their growing prison population—and the associated costs—to heel by changing the way criminals are sentenced. The bill that Mark Sanford, South Carolina’s Republican governor, signed into law that day, after it sailed through the Republican-dominated legislature, allows non-violent drug offenders to be eligible for parole or probation rather than automatically being sent to prison. It requires drug offenders to pay a fine, which then goes to drug-treatment programmes.

Will Ken Clarke's prison green paper stop 'sentence inflation'?

From The Guardian, 14 December 2010:

Justice secretary Ken Clarke's Breaking the Cycle green paper was widely welcomed by prison reformers last week as a watershed that could bring to an end the 18-year punitive arms race that has fuelled the relentless rise in the prison population.

The moderate package holds out the promise of an intelligent sentencing framework and a "rehabilitation revolution" that would cut the high reoffending rates of more than 60%. The prize is a 3,000 cut in the record 85,000 jail population in England and Wales within four years, while continuing to drive down crime.

Time to redress shoddy treatment of security whistleblower Kessing

By Chris Merrit, The Australian, 17 December 2010:

MEMO Andrew Wilkie: As one of the nation's best-known whistleblowers, you know what it is like to be persecuted for revealing wrongdoing.

Before you entered parliament, one of the few politicians who shared this insight was independent senator Nick Xenophon.

He had been waging a lonely campaign to right the terrible wrong inflicted on another whistleblower, Allan Kessing.

Now that your support is keeping the Gillard government in office, you have the ability to help Xenophon force an inquiry into the Kessing affair.

It won't be easy. Just enough detail has come to light about the grubby shenanigans at the heart of the Kessing affair to give the Coalition and the Labor Party a strong incentive to look the other way.

Until that changes, Kessing carries around a criminal conviction over actions that should be rewarded with the Order of Australia.

But this week, Home Affairs Minister Brendan O'Connor received a long-delayed letter from Kessing that could provide all the ammunition you need. 

The letter contains information about the circumstantial evidence that was used against him that, if true, must raise doubts about his conviction.

Dr Ethan Nadelmann at the Lowy Institute

A lecture, and Q&A of about an hour, discussing drug policy and reform.

Summary

On 25 November, as part of the Institute's Distinguished Speaker Series, Ethan Nadelmann, Director of the US Drug Policy Alliance, argued that the 'war on drugs' has been ineffective, counterproductive and expensive, with dire consequences for national and international stability. He analysed the evolution of global drug control during the 20th century, the growing movement for reform, and potential futures for global drug control.

Wrongly imprisoned kids due compo: lawyer

From SMH, 28 December 2010:

Young people wrongly imprisoned as a result of computer glitches will be part of a class action suit to be filed against the NSW government.

Ben Slade, managing principal of Maurice Blackburn Lawyers, is heading the suit against the state government.

He says young people are being wrongly imprisoned because of an apparent lack of communication between NSW's court-based computerised information system JusticeLink and the NSW police computer system COPS.

In some cases when a bail condition had expired, such as a curfew, police were not receiving this information and continuing to arrest juveniles they see as breaching the rules, he said.

"What we want in this class action is for the government to take it seriously. And we're calling upon the government to talk to us before we file this action and sort out number one: how the system's going to be fixed up so it does work, and number two: how these young people should be properly compensated for it," Mr Slade said.

Supreme Court Tackes Warrantless Entry Case

From NPR, 12 January 2011:

The U.S. Supreme Court is wrestling with a case that could give police greater power to forcibly enter a home without a warrant.

The Constitution bars warrantless searches except in certain circumstances — for example, an emergency search to prevent the destruction of evidence. But on Wednesday, the question before the court was whether police, by themselves creating such exigent circumstances, are unconstitutionally evading the warrant requirement.

The case before the court began in 2005 when Lexington, Ky., police banged on the door of an apartment where they thought they smelled marijuana. After loudly identifying themselves, police heard movement inside, and fearing the destruction of evidence, they broke in. Inside they found Hollis Deshaun King smoking marijuana. Police also found marijuana and cocaine on the kitchen counter. King was convicted of drug trafficking and related offenses.

But the Kentucky Supreme Court reversed the conviction. The state court ruled that the drugs found in the apartment could not be used as evidence against King because police had no warrant for the search, and the only emergency circumstances were those created by the police themselves when they loudly alerted the suspect to their presence.

Prosecutors appealed to the U.S. Supreme Court, which heard arguments in the case Wednesday.

Kentucky Assistant Attorney General Joshua Farley told the justices that since the smell of marijuana gave police probable cause to believe a crime was occurring in the apartment, and since police heard movement inside after they knocked, they lawfully broke in to prevent the evidence from being destroyed.

Chief Justice John Roberts tested Farley's theory. "So, you have an apartment building where the police know from experience there is a lot of illegal activity, a lot of drugs." Can police every two weeks "walk through and knock on every door" and break in when they hear movement inside? "Is that all right?"

Warning that tough bail laws create criminals

By Geesche Jacobson, SMH, 15 January 2011:

THE state's tougher bail laws have created a serious social problem, jailing an increasing number of people for lengthy periods and guaranteeing more will become repeat offenders, a former magistrate has warned.

As the number of people in prison awaiting trial continues to grow - many of whom will ultimately be found not guilty - they risked losing their jobs and contact with their families, said Max Taylor, who is also head of the Bail Reform Alliance.

About a quarter of inmates in NSW prisons, 2500 people, have been refused bail and one-third of them have been in jail for more than six months, many much longer.

According to the latest court statistics, more than 1500 people were found not guilty or had all charges dismissed in NSW courts in 2009 after spending time on remand; 205 of them were juveniles.

People who previously would have been granted bail now risk being turned into serious criminals in prison, Mr Taylor said.

The shadow Attorney-General, Greg Smith, who has foreshadowed a Coalition government would urgently change the bail laws before a more thorough review, said it was a concern for anyone to spend time on remand when there was insufficient evidence against them, or they did not face a serious charge.

If they were later acquitted they had ''in effect served a sentence'', he said. ''That sort of offends the community culture that you are not guilty unless proven so … A lot of people have been concerned in recent times that the presumption of innocence does not seem to be honoured as strongly as it was in the past so that bail is refused and used as part of the punishment,'' he said.