Missoula District Court: Jury pool in marijuana case stages ‘mutiny’

Gwen Florio | Billings Gazette | 19 December 2010 

A funny thing happened on the way to a trial in Missoula County District Court last week.

Jurors – well, potential jurors – staged a revolt.

They took the law into their own hands, as it were, and made it clear they weren’t about to convict anybody for having a couple of buds of marijuana. Never mind that the defendant in question also faced a felony charge of criminal distribution of dangerous drugs.

The tiny amount of marijuana police found while searching Touray Cornell’s home on April 23 became a huge issue for some members of the jury panel.

No, they said, one after the other. No way would they convict somebody for having a 16th of an ounce.

In fact, one juror wondered why the county was wasting time and money prosecuting the case at all, said a flummoxed Deputy Missoula County Attorney Andrew Paul.

District Judge Dusty Deschamps took a quick poll as to who might agree. Of the 27 potential jurors before him, maybe five raised their hands. A couple of others had already been excused because of their philosophical objections.

“I thought, ‘Geez, I don’t know if we can seat a jury,’ ” said Deschamps, who called a recess.

And he didn’t.

During the recess, Paul and defense attorney Martin Elison worked out a plea agreement. That was on Thursday.

On Friday, Cornell entered an Alford plea, in which he didn’t admit guilt. He briefly held his infant daughter in his manacled hands, and walked smiling out of the courtroom.

“Public opinion, as revealed by the reaction of a substantial portion of the members of the jury called to try the charges on Dec. 16, 2010, is not supportive of the state’s marijuana law and appeared to prevent any conviction from being obtained simply because an unbiased jury did not appear available under any circumstances,” according to the plea memorandum filed by his attorney.

“A mutiny,” said Paul.

“Bizarre,” the defense attorney called it.

In his nearly 30 years as a prosecutor and judge, Deschamps said he’s never seen anything like it.

Cameron mugging Clarke was about fear of the tabloids, not consultation

Simon Jenkins | The Guardian | 23 June 2011

The justice secretary's message on penal reform was too radical and the PM lost his nerve. So we will keep wasting money.

So what caused the car crash? It was supposed to be the first real chance for penal reform in Britain for a quarter century. For years terrified Labour home secretaries quivered before the forces of darkness. They introduced 50 criminal justice measures and imprisoned more people than anywhere in Europe. They locked up their minds and threw away the key. Last year along came Ken Clarke, apparently without a fear or an electoral care in the world. The clouds rolled back and sanity came over the horizon. Yet on Tuesday a person looking remarkably like the prime minister took the justice secretary into a dark corner of Downing Street and mugged him. Everything went black.

Clarke's proposals in a green paper last year were designed to put some subtlety into Britain's primitive justice system. Prison sentences should treat the circumstance of cases rather than parliamentary megaphones and mandatory messages. Early admission of guilt would attract up to a 50% reduction in sentence and save millions in court time and much witness anguish. There should be more plea bargaining, less incarceration of foreigners and greater emphasis on rehabilitation.

Most of this has been overturned by a David Cameron whose hand on the wheel of policy has been unsteady of late. Up to 60% of Clarke's green paper has been lost. His incentives for guilty pleas are dropped, along with his bid to increase community sentencing and reduce the prison population.

To rub home this exemplary drubbing of liberalism Cameron insisted on a return to "stupid justice", with two-strikes mandatory sentencing, automatic jail for knife crimes and a special "bash the burglar" law. At present there are 20,000 knife crimes a year, of which just 20% lead to prison. This, with a shorter remission for sex and violence crimes, should push the prison population towards the 100,000 point. This is paraded as "punishment with a purpose". It is a desperate play to the gallery.

On Wednesday Cameron got his desired reward. "Right at last," thundered the Daily Mail, hailing the prime minister's "new sense of direction". The Sun cried, "Cameron shows welcome steel," and claimed credit for stopping the "soft justice secretary", otherwise "Crackers Ken, the paedophile's pal". The Daily Telegraph welcomed "Humiliation for Clarke," as Cameron was "forced to get a grip on the government's agenda." Thus was the fatted calf prepared for the repentant hoodie-hugger.

Making minced meat of a witness

Mark Morri  | The Daily Telegraph | 29 June 2011

A MAN allegedly hired a hitman to put nine people through an industrial mincer, including two police officers and the young children of a crown witness who was going to testify against him, a court heard yesterday.

Police documents tendered to the court claim the accused, Rajesh Gooroochurn, said he wanted the potential victims put through a mincer and their remains fed to pigs to dispose of the bodies.

Gooroochurn allegedly detailed how their homes should be invaded, keycards removed and family members' fingers cut off if they didn't reveal pin numbers.

He also asked that the two police officers who charged him be followed home from work and murdered.

The 42-year-old appeared in the NSW Supreme Court yesterday via video link.

Criminal justice: The revolution that never was

Editorial | The Guardian | 21 June 2011

After David Cameron's rewriting of the justice bill, Kenneth Clarke's rehabilitative revolution lies in tatter

The brief illusion of liberal government disappeared with the publication of the sentencing bill on Tuesday. The Rose Garden promise had been for a calm coalition animated by progressive values and guided by reason. That promise was fleetingly fulfilled by the justice secretary, Ken Clarke. Last year he stood ready to unlock 20 years of failed thinking, with a green paper which accepted that Britain's drift towards mass incarceration was imposing an unacceptable human and financial cost. Now it has been decisively breached by a prime minister who once claimed to be a liberal Conservative.

Make no mistake: after David Cameron's rewriting of this bill, Mr Clarke's rehabilitative revolution lies in tatters. Its thrust had been to end avoidable incarceration and reinvest the money in doing something more productive than making bad people worse. Its detail consisted in drug treatment, work and training, but also – crucially – in specific plans that would have had the effect of cutting the number locked up by 6,450 as compared with the inherited plans. The biggest slice of that reduction was to come from a sensible move to relieve the pressure on Britain's creaking courts, by increasing the discount available for a guilty plea.

Review to target Aboriginal jobless programs

Anna Patty | SMH | 25 June 2011

''We need to be investing more in education and employment services so that we are spending less on public order" 

THE steep reversal of a downward trend in Aboriginal unemployment in NSW in recent years has forced the state government to order an overhaul of employment programs that are failing.

The Minister for Aboriginal Affairs, Victor Dominello, has asked his department to review 10 employment programs, including Aboriginal Jobs Together, which the Auditor General strongly criticised last month.

The department has been asked to cost the programs and assess the number of job placements, traineeships and cadetships they produced. Retention rates and evidence suggesting the programs would prove to be successful would also be reviewed.

''These are programs designed to get Aboriginal people into employment. I want to know if they are working,'' he said.

Mr Dominello said the state government was spending an average of $78 on labour and employment services for each Aboriginal person, $104 on social security and $3817 on public order and safety. He said a greater investment was needed in education and employment initiatives to reduce the rate of entry into correctional facilities.

West gets tough on domestic violence

Nicolas Perpitch | The Australian | 20 June 2011 

WESTERN Australia will introduce some of the country's toughest laws against domestic violence, requiring a "presumption of imprisonment" for offenders who breach violence restraining orders three times.

One step away from mandatory sentencing and based on a NSW model, Attorney-General Christian Porter said courts would have to presume in favour of locking the offender away.

Under the legislation, to be introduced in parliament this week, offenders could only avoid jail in "exceptional circumstances". Written reasons would have to be provided in the judgment if a jail term was not imposed.

Mr Porter said the stronger laws were needed to address the increasing "scourge of domestic violence".

Tory thinktank pushes for prisoners to work full-time

Alan Travis | The Guardian | 13 June 2011

Policy Exchange finds strong public backing for proposals to occupy inmates mooted by Kenneth Clarke at Conservative conference

Fresh pressure to introduce a 40-hour-a week work regime in prisons in England and Wales comes from a leading Conservative thinktank on Monday.

A Policy Exchange report, Inside Job, reveals the vast number of prisoners do very little work and any employment is often "activity for activity's sake", non-commercial and on a very small-scale.

The thinktank suggests the introduction of a new prisoner minimum wage. This would be less than the national minimum wage to reflect the costs of board and lodging but more than current inmate earnings to encourage prisoners to work and save for their release as well as pay into a victims' fund.

The justice secretary, Kenneth Clarke, announced his ambition to introduce a "regime of hard work" into prisons in England and Wales at the Conservative party conference last October but little progress has been made since then.

Calls to abolish gay panic defence

Serkan Ozturk | SX News | 20 June 2011

Legal experts and LGBTI activists have this week expressed their concern at laws that continue to exist in NSW and Queensland which allow alleged murderers the option of using a partial defence of ‘non-violent homosexual advance’ as a reason for the death of a victim.

The calls come as a man currently facing a murder trial in Melbourne claimed that he killed his openly-gay housemate following a fit of rage after being propositioned for sex.

Earlier this month in Queensland, a petition sponsored by Brisbane MP Grace Grace was launched to lobby Attorney-General Paul Lucas to make further changes to the use of provocation in that state following the passing of the Criminal Code and Other Legislation Amendment Bill 2010.

Lucas has suggested that the bill already enshrines that “no longer can mere words alone, including gay or straight advances, be sufficient for the defence of provocation, except in the most extreme and exceptional circumstances”.

However, a law expert from the University of Newcastle, Dr Alan Berman, told SX that he believes the legislation has failed to completely eliminate ‘non-violent homosexual advance’ as a defence.

“Most of the common law cases dealing with ‘non-violent homosexual advance’ defence involve more than a mere verbal proposition,” Berman said.

Community to reject welfare reform trial

Stefan Arblaster | SBS Radio | 23 June 2011

A Queensland Aboriginal community is set to reject an extension of the controversial Cape York welfare reform trial.

Mayors from four Aboriginal communities are due to meet the Queensland government to discuss the $14-million, one-year extension being funded by the federal government. 

The trial is the brain child of the Cape York Institute and its director, Aboriginal academic Noel Pearson, who comes from Hope Vale.

But Hope Vale mayor Greg McLean told Queensland correspondent Stefan Armbruster, the trial has failed and his community has had enough.

Howie .121 at 9:30am after bottle of wine 7-11pm

As James Madden reports in the Australian, Acting Justice of the Supreme Court Rod Howie officially blew .121 at 9:30am on 19 May 2011, after apparently causing a three car accident.

This was after, as Paul Bibby reports in the SMH, he had blown .168 on the roadside, and had been observed by Police as "unsteady on his feet, his face was flushed and his eyes watery".

The Police Facts, apparently accepted by the plea of guilty on his behalf this morning at Ryde Local Court, contain a claim by Howie that he had consumed a bottle of red wine between 7pm and 11pm the night before on May 18.

But would a Court be prepared to accept such a submission? One would expect most Magistrates to at least raise an eyebrow, if not smash the submission straight out of the ground.

The Magistrate at Ryde Local Court has already given hints that he is so far not pleased. As Madden reports:

the retired judge sent a note to the court informing it of his guilty plea and acknowledging that he expected to lose his licence and be fined.

But the magistrate said that Justice Howie appeared to have a "misapprehension" of sentencing options before the court, and said it was possible that a jail sentence could be handed down.

The magistrate also expressed his displeasure at Justice Howie's failure to appear today, saying "whoever the offender might be, it's a matter where I expect the man to be before the court".

The accident, as reported by Bibby, reveals at least some culpability on the part of Howie, who can be thankful no serious injuries were caused:

Howie was planning to drive to the central coast at 9:30am on May 19 when he failed to give way to a B-Double truck, according to a police statement of facts tendered in Ryde Local Court this morning.

Police say the 61-year-old, who has presided over many significant cases, including that of Dianne Brimble, hit the truck's rear trailer as he pulled onto Beecroft Road in Sydney's northwest, just minutes from his home.

They say he then mounted the footpath before crossing onto the other side of the road into oncoming traffic, colliding head on with a car coming the other way and sending it into a third car travelling in the same direction.

The driver of the car that Justice Howie hit head on was taken to hospital with neck pain but did not suffer serious injury.

If all of that is right, and there is no indication of a dispute to the Police Facts, there must be a prospect of further charges being laid by Police.

The matter has been adjourned to September.

Drink driving judge 'could be jailed'

Janelle Wells | ABC Online | 22 June 2011

A retired Sydney judge who wrote guidelines for sentencing drink drivers has pleaded guilty to being over the limit himself.

Former New South Wales Supreme Court judge Roderick Howie was charged with mid-range drink driving after a three-vehicle crash at Beecroft, in Sydney's north-west, on May 19.

Police say his car ran into the back of a truck about 9:30am (AEST), then crossed to the other side of Beecroft Road and hit another car.

In Ryde Local Court this morning, Howie's lawyer entered a guilty plea on his behalf, as the 61-year-old is on holidays in Japan.

Howie did send a note to the court though, saying he expected to be fined and to lose his license.

But the magistrate noted a jail sentence is also an option, saying Howie has an "unusual misapprehension about sentencing options"

He also emphasised that the former judge must be in court when he is sentenced in September.

Howie retired from the Supreme Court last year and took a position with the state's Law Reform Commission.

He is also an acting judge in the NSW Court of Criminal Appeal.

In 2004 he was on a panel of five judges in the appeals court that ruled magistrates were too lenient when sentencing in high-range drink driving cases.

"It is trite to observe that what is commonly referred to as drink driving amounts to socially irresponsible behaviour of a very significant degree," Howie said in the 2004 judgement.

"It must also be a matter of common knowledge within the public in general that it is a criminal offence to drive a motor vehicle whilst under the influence of alcohol, and that substantial penalties, including imprisonment, are available to the courts to punish those who commit the offence.

"A person who commences to consume alcohol outside his or her home must appreciate that he or she runs the risk of reaching a level of intoxication at which it is a criminal offence to drive a motor vehicle."

David Cameron makes prison U-turn to increase jail sentences

Hélène Mulholland | The Guardian |  21 June 2011 

PM's speech reveals plan to abandon 50% discounts for early guilty pleas and to increase terms for serious offenders

David Cameron has outlined plans to hand out a greater number of life sentences and increase the amount of time serious offenders spend in prison, in a major policy U-turn.

The prime minister outlined his tough approach to sentencing as he confirmed his decision to abandon plans to offer 50% sentence discounts to offenders who submit early guilty pleas amid media tabloid accusations that the government was engaging in "soft justice".

Cameron told a press conference that dangerous criminals will be locked up "for a very long time" as described his mission to ensure families can "feel safe in their homes" and on the streets.

Sentences would have been too lenient and criminals would have been sent the "wrong message" if plans to halve jail terms for offenders who plead guilty early had gone ahead, he told a press conference.

Savings of some £100m that would have been made through the plans will now be sought instead through "greater efficiency" elsewhere in justice secretary Kenneth Clarke's department.

Tagged and Bagged: Tagging at Hip Hop Gigs

Liz Galinovic | 3DWorld | November 2010

GRAFFITI IS CELEBRATED AS ONE OF THE ESSENTIAL FOUR ELEMENTS OF HIP HOP, BUT THE WORK OF SOME OF ITS EXPONENTS IS OFTEN COUNTER-PRODUCTIVE WHEN IT COMES TO THE MUSIC ITSELF BEING GIVEN A LIVE FORUM TO SHINE IN. LIZ GALINOVIC EXPLORES THE SOMETIMES STRAINED RELATIONSHIP BETWEEN VENUES, PROMOTERS AND TAGGERS OFF THE BACK OF A FLOOD RELIEF GIG WHICH ALMOST COST THE SYDNEY SCENE ANOTHER VENUE.

Def Wish Cast’s 2006 album The Legacy Continues… features a track with an interesting breakdown between verses that goes something like this – “Aww ya kidding. C’mon I want ‘em now. Oh my god, where are the guys? I need Def Wish Cast on now! Have you seen the tags at the back?” This gruff, angry voice concludes the track with a proclamation that has become famous around the hip hop traps: “Right. No. More. Hip hop.”

The owner of this voice is most likely a member of DWC, but the person the voice pretends to be is the owner of a Sydney hotel who called an end to the various hip hop events his hotel had played host to because of the tagging scourge these events brought with them. He is neither the first venue owner, nor the last, to close doors to hip hop specifically for graffiti-based reasons.

In late January, a debate erupted on a social networking site over a hip hop show held at Sydney venue Tone as a fundraiser for Queensland flood victims. The event had been a large success, organisers raising $11,000 while the venue donated a chunk of their bar money to the cause. Unfortunately for the venue and the organisers, some of the punters donated an abundance of ink to the toilet cubicles and scratches to the mirrors.

“This has been going on for years unfortunately,” Sydney-based hip hop publicist and promoter CJ York says. “Where promoters try to bring these niche events to the public, and the punters do get out there and support, there always seems to one or several dickheads that feel the need to deface an area of the venue and as a result, the venue closes its doors to hip hop.”

While the organisers of the benefit gig raged at this lack of respect, one particular point continued to resurface – that graffiti is an integral part of hip hop culture and tagging is an integral part of graffiti. You can’t have one without the other.

Graffiti and hip hop music are symbiotic – they’re bound to each other. Seus, a Sydney-based graffiti artist and MC tells that when the two cultures were taking off in the States they were destined to enter into a life long love affair as they came out of and raged against the same socio-economic struggle.

Boris Johnson calls for end to 'soft justice'

Hélène Mulholland | The Guardian | 20 June 2011

London mayor attacks Ken Clarke's proposals to offer reduced jail terms to offenders who submit early guilty pleas

Boris Johnson, the Conservative London mayor, has attacked justice secretary Kenneth Clarke's plans to offer shorter sentences to criminals, insisting that rehabilitation should take place behind bars.

In an article in Monday's Sun newspaper, Johnson also called on local authorities to introduce a "payment by results" scheme which would see agencies paid to keep former offenders "on the straight and narrow" after they leave jail.

Johnson, who has made cutting crime in the capital a cornerstone of his mayoralty, waded in as David Cameron and Clarke consider the future of a proposal to halve sentences for most offenders who plead guilty at the first opportunity.

"Soft is the perfect way to enjoy French cheese but not how we should approach punishing criminals," Johnson wrote: "It's time to stop offering shorter sentences and get-out clauses".

Clarke was forced to drop paedophiles and rapists from his sentencingplans following a public backlash earlier this month.

He is expected exclude other categories of serious crime but is keen to retain the discount offer as part of his overall sentencing package to stabilise the prison population, which has reached a record 85,000 in England and Wales.

While Downing Street has made clear that Cameron would like to see the whole sentencing proposal dropped, tearing the heart out of Clarke's plans.

One in six young offenders are back in jail in a month

BBC News | 21 June 2011 

One in six young offenders are back behind bars within a month, according to the chief inspector of prisons.

Nick Hardwick said just one in three young offenders had accommodation, education, training or an employment placement on their release.

The outcome for young offenders just out of prison was "very disappointing", he said, while calling for more effort to stop them joining a "life of crime".

The government said plans were in hand to "reform" youth justice.

In March this year a two-year study found releasing young offenders into the community without support was a "recipe for disaster".

If criminals were released from secure accommodation and went to live in a flat without any supervision it was "inevitable" they would reoffend, it said.

As a result, a new review was ordered, based on the experiences of a small group of young men who were released from custody and checked up on a month later.

Justice Roderick Howie charged with Mid-range drink driving

Well, well, well, won't this make an interesting plea in mitigation?

Back in 2004, the NSW Court of Criminal Appeal delivered a guideline judgment relating to the sentencing of high range drink-driving offences. And who wrote the judgment with which the other members of the Court agreed?

None other than Howie J, who at Ryde Local Court this Wednesday will be referred to as the defendant. 

Some excerpts from the guideline judgment:

[7] It is trite to observe that, what is commonly referred to as, “drink-driving” amounts to socially irresponsible behaviour of a very significant degree having regard to the potential consequences of any driver on a public road being unable to properly manage and control a motor vehicle. It must also be a matter of common knowledge within the public in general that it is a criminal offence to drive a motor vehicle whilst under the influence of alcohol and that substantial penalties, including imprisonment, are available to the courts to punish those who commit the offence.

...

[102] A person, who commences to consume alcohol outside his or her home, must appreciate that he or she runs the risk of reaching a level of intoxication at which it is a criminal offence to drive a motor vehicle. As alcohol is continuously consumed, not only does that risk increase but also the potential seriousness of the offence increases 

... 

[118] This Court has frequently observed that the fact that the driver convicted of an offence under s 52A is of otherwise good character is of less relevance than it might be in sentencing for other types of offences: R v McIntyre (1988) 38 A Crim R 135 at 139. This is because of the prevalence of the commission of the offence by persons of good character and the importance of general deterrence: R v Musumeci (NSWCCA, 30 October 1997, unreported).

[119] This observation applies equally, in my view, to sentencing for PCA offences in general and high range PCA offences in particular.  

...

[142] Generally speaking the reason for the consumption of alcohol will be irrelevant. The offence is not concerned with punishing the drinking of alcohol but with the driving thereafter. Therefore, it is of no significance that the alcohol was consumed at a wake or a celebration, or because the person was abusing alcohol either generally or on the particular occasion because of some emotional or psychiatric condition. Yet in a number of the 199 random cases, the reason for the consumption of alcohol seems to have been a factor in the magistrate making an order under s 10. For example, in one case the magistrate apparently took into account that the offender had consumed alcohol after being with her brother who was dying of cancer. As much as this fact might give rise to feelings of sympathy for the offender, it had nothing to do with the culpability involved in driving at high range PCA. It may have simply indicated that the offence was unlikely to occur in the future so that specific deterrence was not a consideration. 

...

[143] Clearly the subjective features of the offender are relevant to a determination of the penalty for any offence, and high range PCA is no exception. But general sentencing principles require that the penalty reflect the object seriousness of the offence and that too much allowance cannot be given to subjective features particularly where deterrence and denunciation are important factors in sentencing.

...

[144] ... The fact that a person is unlikely to offend in the future does not generally mitigate the criminality of the offence ...

Karl Bitar's leap to Crown Casino

David Hetherington | Online Opinon | 1 June 2011 

It’s hard to know whether to laugh or cry at the news that former Labor boss Karl Bitar is joining Crown Casino. The scriptwriters at the Simpsons couldn’t have cast a more delicious storyline, but at the same time it simply cements the public’s rock-bottom perception of politics and its practitioners.

It certainly does no favors for Julia Gillard, Bitar’s former colleague, at a time when Labor is trying to push through anti-gaming reforms through the Parliament.

What’s more worrying is what it says about the institutional barriers to good policy outcomes in Australia. Here we have the former national secretary of a political party that is committed to addressing disadvantage, in this case through gaming reform, jumping the fence to lobby against such reform.

Cops' cock-up puts end to gay-sex trial

Sarah Crawford | The NT News | June 8, 2011

A MURDER trial involving gay sex for cash was abandoned yesterday after an extraordinary police cock-up.

Lost evidence showing that another man's shorts were stained with the victim's blood was suddenly found.

Defence lawyer Jon Tippett told the Supreme Court in Darwin: "It does not get much worse than this."

Police and the Director of Public Prosecutions immediately launched an investigation into how the critical evidence was lost for seven months and was only rediscovered two weeks into the trial.

Jordan Danny Thompson, 18, was freed after nearly a year in custody. The teenager, from the remote community of Ngukurr, 314km east of Katherine, was surrounded by family and friends as he was driven away without commenting.

Mandatory teen thug terms 'misguided'

Adrian Lowe | The Age | June 16, 2011

THE state government has been accused of being misguided over its plan for mandatory sentences for 16 and 17-year-olds convicted of violent crimes.

New figures show that the targeted offences make up less than 1 per cent of proven cases in the Children's Court, and a peak legal group has warned that the changes in the laws for adult offenders for the same crimes could lead to further delays in an already stretched County Court.

The government has requested advice from the Sentencing Advisory Council on its proposal to introduce statutory minimum jail terms for the crimes of intentionally causing serious injury and recklessly causing serious injury where the offender uses gross violence.

Adult offenders will be subject to a four-year statutory minimum jail term, while 16 and 17-year-olds face a minimum of two years' jail.

The council has recently released data showing that just 0.2 per cent of proven cases in the Children's Court involved intentionally causing serious injury between 2000 and 2009, and just 0.7 per cent involved recklessly causing serious injury.

The Law Institute of Victoria believes that those figures indicate the government is on the wrong track. ''The sentencing statistics alone indicate that such a severe reaction in terms of mandatory sentencing is not warranted,'' said James Dowsley, co-chairman of the institute's criminal law section.

More jails will not mean less crime

Editorial | The Age | June 11, 2011

AS EVERY politician knows, there are votes to be had in being tough on crime, or at least in being thought to be so. And it is just as much a part of the received political wisdom that there are no votes to be had in extending and modernising prisons or building new ones, because that is easily portrayed as being soft on prisoners. The problem, of course, is that policies regarded as showing ''toughness'' on crime are likely to result in an increase in the prison population, who must be properly housed, fed and, if they are not to re-offend on completion of their sentences, rehabilitated. Victoria's Baillieu government is here in a bind of its own making.

Having won office vowing to crack down on crime, the government has since been busily turning that vow into legislation. Judges will no longer be able to suspend the sentences of adults convicted of serious crimes, and 16 and 17-year-olds convicted of crimes involving gross violence face mandatory jail terms. As Attorney-General Robert Clark has said, ''We are determined to make clear that jail means jail''. And Corrections Minister Andrew McIntosh has conceded that the government's agenda means there will be more prisoners: ''Of course that [Coalition policy] meant there was clearly going to be an increase in the number of prison beds that we would have to provide.'' Why, then, did the government slip into last month's budget, without fanfare of any kind, an announcement that it will build a new men's prison, with $2 million allocated for a study of the business case for the prison? It was as if the government was hoping that this might be overlooked.

As Royce Millar, of the Age investigations unit, reports today, the government's coyness almost certainly derives from the same instinct that drove the Brumby government to keep quiet about its refusal of a Corrections Victoria plan for building a new 800-bed men's prison and a new 550-bed women's prison as public-private partnerships, at a construction cost of approximately $550 million each and an operating cost that would run into billions over decades. Simply, there are no votes in prisons. Yet the previous government was acutely aware of overcrowding in the state's 13 existing prisons, because, under pressure from Coalition criticism and media reporting, it, too, had been ''getting tough'' on crime. Victoria's incarceration rate, with 105 prisoners per 100,000 of the population, is lower than the national average of 170 per 100,000, but in the past decade the prison population has soared by almost 50 per cent, triple the rate of general population growth. Last year the cost of maintaining a prisoner in Victoria's jails was $300 a day, more than in any other state or territory except Tasmania and the ACT, and the Baillieu government's swelling of the prison population will require a huge blowout in the corrections budget.

The real cost, however, will be measured not in dollars but in the self-defeating nature of the policy itself. As ''get tough'' governments around the world have increasingly found, the consequence of relying on incarceration with mandatory terms as the answer to crime is more prisoners, not greater public safety, because the experience of jail is more likely to harden young offenders than to rehabilitate them. If courts are to respond effectively to rising crime, they need to retain the discretion in sentencing that the Baillieu government is so intent on removing from them.

Big holes in big lock-up scheme

Royce Millar | The Age | 11 June 2011

JOHN Wayne would be spitting in the dust. Texas, the home ground of American rough justice, has gone soft on crime. Twenty years ago, zero tolerance swept the US, epitomised in Republican Clayton Williams's pledge that if elected Texan governor in 1990 (he lost), he would have first time drug offenders ''bustin' rocks''.

But even in Texas things get complicated once the TV cameras have turned away and politicians find themselves governing in the real world.

The lock-'em-up policies of the 1980s and 1990s led to rising prisoner numbers and broken budgets. Rather than putting an end to crime, prisons seemed to be incubating it.

Now, reduced sentences for drug offences and a big boost to job training and rehabilitation programs for non-violent offenders are among recent Texan reforms also being reproduced in conservative states, including Louisiana and Indiana, across the US.

Like Clayton Williams, Victorian Liberal leader Ted Baillieu knew well that a simple tough-on-crime message would play well in short media grabs at polling time last year. It was a core theme used by the Coalition to launch a barrage of law and order policies, including boosting police recruitment, bail reform, and the abolition of home detention and suspended sentences. There would be literally ''zero tolerance''. ''Offenders who do the crime will do the time.''

Seven months later, honeymoon over, the Coalition is facing its own real-world dilemma: getting tough is more costly than it expected or, maybe, admitted. Possibly even imagined.

Lawyers slam mandatory terms for asylum sailors

Mark Dodd | The Australian | 15 June 2011

MANDATORY sentencing of Indonesian fishermen dumped on eastern states courts to face people-smuggling charges will do little to deter asylum-seekers, consumes scarce judicial resources and costs taxpayers millions, lawyers warn.

Defence lawyers have told The Australian mandatory sentences of five years for people-smugglers risks overcrowding jails and lengthening delays in court proceedings.

Since January about 300 alleged people-smugglers have been transferred from overcrowded facilities in northern Australia for processing by Victorian, NSW and Queensland courts.

Defence lawyers say almost all are itinerant fishermen - many unaware they have committed a crime.

"Queensland's jails are at bursting point and they've (the federal government) just dumped 100 federal prisoners on us, so Corrective Services are saying where are we going to put them?," said one barrister.

"The other point is, this offence is drawn very broadly and has very severe consequences - you must get five years."

Indonesian fishermen were being "demonised" by the federal government, said Australian Lawyers for Human Rights president Stephen Keim SC, who issued a scathing indictment of mandatory sentencing laws.

Prison Math: What are the costs and benefits of leading the world in locking up human beings?

Veronique de Rugy  | Reason Magazine | July 2011 issue

In 2009, according to the Bureau of Justice Statistics, there were 1,524,513 prisoners in state and federal prisons. When local jails are included, the total climbs to 2,284,913. These numbers are not just staggering; they are far above those of any other liberal democracy in both absolute and per capita terms. The International Centre for Prison Studies at King’s College London calculates that the United States has an incarceration rate of 743 per 100,000 people, compared to 325 in Israel, 217 in Poland, 154 in England and Wales, 96 in France, 71 in Denmark, and 32 in India.

America’s enormously high incarceration rate is a relatively recent phenomenon. According to a 2010 report from the Center for Economic and Policy Research (CEPR), U.S. incarceration rates between 1880 and 1970 ranged from about 100 to 200 prisoners per 100,000 people. After 1980, however, the inmate population began to grow much more rapidly than the overall population, climbing from about 220 per 100,000 in 1980 to 458 in 1990, 683 in 2000, and 753 in 2008.

Why are American incarceration rates so high by international standards, and why have they increased so much during the last three decades? The simplest explanation would be that the rise in the incarceration rate reflects a commensurate rise in crime. But according to data from the Federal Bureau of Investigation and the Bureau of Justice Statistics (BJS), the total number of violent crimes was only about 3 percent higher in 2008 than it was in 1980, while the violent crime rate was much lower: 19 per 1,000 people in 2008 vs. 49.4 in 1980. Meanwhile, the BJS data shows that the total number of property crimes dropped to 134.7 per 1,000 people in 2008 from 496.1 in 1980. The growth in the prison population mainly reflects changes in the correctional policies that determine who goes to prison and for how long. 

Mandatory minimum sentencing laws enacted in the 1980s played an important role. According to the CEPR study, nonviolent offenders make up more than 60 percent of the prison and jail population. Nonviolent drug offenders now account for about one-fourth of all inmates, up from less than 10 percent in 1980. Much of this increase can be traced back to the “three strikes” bills adopted by many states in the 1990s. The laws require state courts to hand down mandatory and extended periods of incarceration to people who have been convicted of felonies on three or more separate occasions. The felonies can include relatively minor crimes such as shoplifting. 

Locked Up, Locked Out: The social costs of incarceration

Bruce Western |  Reason Magazine | July 2011 issue

Do prisons make us safer? By taking would-be offenders off the streets, prisons clearly have reduced crime in the short run. In the long run, though, imprisonment erodes the bonds of work, family, and community that help preserve public safety.

Three effects are fundamental. First, former prisoners do worse economically than if they had never been incarcerated. We can see some evidence in a study I conducted in 2004 with the Princeton sociologist Devah Pager. We ran an audit experiment that sent trained testers to apply for more than 1,000 entry-level jobs throughout New York City. The fake job applicants were dressed similarly, gave similar answers, and provided résumés with identical education and work experience. At each job interview, however, one randomly chosen tester would tick the application box indicating a criminal record and submit a résumé that mentioned a prison and provided a parole officer as a reference.

White testers who were assigned a criminal record received call-backs or job offers from employers only half as often as testers with clean records. For African Americans, a criminal record reduced employment opportunities by two-thirds. Labor force data from the National Longitudinal Survey of Youth paint a similar picture of incarceration’s negative effects: Wages fall by about 15 percent after prison, yearly earnings are reduced by about 40 percent, and the pay of former prisoners (unlike compensation for the rest of the labor force) remains stagnant as they get older.

The second important effect of imprisonment falls not on ex-inmates but on their families. About half of all prison and jail inmates are parents with children under 18. By 2008 about 2.6 million children had a parent in prison or jail. By age 17, one in four African-American youth has a father who has been sent to prison.

The Supreme Court Got it Right on Prison Overcrowding in California

Stephen Yair Liebb, Héctor Oropeza | Fox News Latino | 10 June 2011

The United States Supreme Court’s decision affirming an order placing a population limit on California’s prisons to prevent continued mental and medical health violations does not mean that “46,000 criminals – the equivalent of three army divisions – will be released,” as Justice Alito claimed in his dissent.

His description of the consequences of the Supreme Court’s decision is an example of the hyperbole and hysteria used by Justices who are required to exercise sound reasoning in deciding cases.

Our perspective comes from having served more than 50 years combined in California prisons, and having witnessed the conditions under which men are confined, and the provision of medical treatment to those in need. We understand, too, that in an economy where many law-abiding citizens are out of work and unable to afford health care for themselves and their families, the lack of mental and medical health treatment for prisoners does not engender much sympathy.

However, the U.S. is still a symbol of freedom across the world. How we treat the most despised of our own citizens is important if we are to have credibility and moral authority in advocating for human rights in other countries. The Court noted that the Constitution protects the “essence of human dignity in each person.”

Mandatory Sentencing: Back to the Future in the Northern Territory

With mandatory sentencing back on the agenda in NSW and Victoria, it is worthwhile to reflect on an Australian jurisdiction with recent experience of the practice, namely the Northern Territory.

RG practiced in the NT between 2006 and 2008, during which time the Labor government went to an election promising mandatory prison sentences for first offenders convicted of assault causing 'harm'. Labor won, that legislation passed and continues to be law today.

In 2007-8, I appeared for young men in their late teens who faced mandatory jail for the first offence of having consensual sex with girlfriends under the age of 16.

Thankfully, by that time, the infamous mandatory prison laws for property offending had been repealed, although mandatory jail for certain serious violence offences (including assault causing serious harm) and for a second or subsequent offence of breaching a domestic violence order survived.

Following the introduction of the new provision for a first offence of assault causing 'harm', Charles Darwin University lecturer and veteran Aboriginal Legal Service lawyer, Steve Barlow, analysed the scene, including the history of the notorious period 1997 - 2001:

(2009) 33 Crim LJ 231 

Contemporary legislation comment

BACK TO THE FUTURE IN THE NORTHERN TERRITORY – THE

RETURN OF MANDATORY IMPRISONMENT FOR FIRST OFFENDERS

Mandatory imprisonment for first offenders has returned to the Northern Territory. Any adult, even a

first offender, who is sentenced in the Northern Territory for an assault causing “harm” now faces a

term of mandatory imprisonment. The major impact of the new law is to expand mandatory

imprisonment for violent offences to first offenders. The previous law mandated prison for “second

strike” assaults. The new law has been introduced despite the legal and political failure of the

1997-2001 mandatory sentencing regime for property crime.1

OVERVIEW OF S 78BA OF THE SENTENCING ACT (NT)

The amended s 78BA of the Sentencing Act (NT) came into force on 10 December 2008.

Section 78BA provides:

78BA Mandatory imprisonment for certain violent offences

(1) This section applies to:

(a) any of the following violent offences:

(i) an offence against section 181 or 186 of the Criminal Code;

(ii) an offence against section 188 or 189A of the Criminal Code that results in harm to the

victim; and

(b) any other violent offence committed after the offender has (before or after the commencement

of this section) been found guilty of:

(i) a violent offence; or

(ii) an offence substantially corresponding to a violent offence committed against a law that

was later repealed or the law of some other jurisdiction (including a jurisdiction outside

Australia).

(2) If a court finds an offender guilty of an offence to which this section applies, the court must record

a conviction and must order that the offender serve:

(a) a term of actual imprisonment; or

(b) a term of imprisonment that is partly, but not wholly, suspended.

The four offences covered by s 78BA(1)(a) are serious harm, harm, assault causing harm, and

assaults on police resulting in harm. Actual imprisonment is mandatory for any adult found guilty of

any these four offences, even if he or she is a first offender. The definition of “harm” in s 78BA is

different to its definition under the Criminal Code. Under s 78BA, “harm” involves an interference

with health. Pain on its own does not amount to harm.

Actual imprisonment is also mandatory for s 78BA(1)(b) “violent offences”, but only if the

offender has a prior conviction for a “violent offence”. Examples of s 78BA(1)(b) “violent offences”

include common assault, terrorism, attempt to murder and manslaughter.2 The prior conviction can

pre-date the commencement of the legislation, making its operation somewhat retrospective. The prior

conviction can also be from another jurisdiction, even outside Australia, if the prior offence

“substantially corresponds” to a Northern Territory “violent offence”.

The interaction of the first offence and second offence mandatory imprisonment provisions are

somewhat illogical. A first offender who commits assault causing harm must be sentenced to actual

imprisonment, but not a first offender who commits terrorism, manslaughter or attempted murder. The

retrospective effect of the law is also harsh. Actual imprisonment is mandatory for common assaults

(no harm) if a person has a prior finding of guilt for common assault, even if the prior offence resulted

in a “non-conviction” sentence order, was many decades ago and in a foreign jurisdiction.

1

Under that regime, offenders for were imprisoned for a minimum of 14 days for a “first strike” property offence, 90 days for

a “second strike”, and 12 months for a “third strike”.

2

See Sch 2 of the Sentencing Act (NT) for a complete list of “violent offences”.

Noam Chomsky on the war on drugs

www.countthecosts.org | 10 January 2011

Academic and social activist Noam Chomsky speaks about the failures of the war on drugs. He argues that the criminal justice-led approach of current drug policies is immoral and leads to discrimination, violence, destruction and crime, all at great financial cost. Chomsky makes the case that, in contrast, prevention and treatment are by far the most cost-effective and humane means of reducing the harms that drugs can cause.

Is the developing world dependent on the drug trade?

ABC Radio National Breakfast | 7 June 2011

A report released today examines the relationship between drugs and development aid, arguing that the money is often wrongly targeted and, in many cases, does little to address addiction and drug use problems.

Professor Nick Crofts 

Nossal Institute for Global Health based at the University of Melbourne

Listen here

Connecticut To Decriminalize Marijuana

Josh Voorhees | Slate | 8 June 2011

New law will bring state’s drug laws in line with a dozen other states

Add Connecticut to the growing list of states that are decriminalizing the possession of small amounts of marijuana.

The state’s legislature signed off on a bill Tuesday that would bring Connecticut’s drug laws in line with a dozen or so states across the country – including neighboring New York and Massachusetts – where simple possession is no longer a criminal offense.

Connecticut Gov. Dannel Malloy has promised to sign the bill as soon as it reaches his desk. The measure would make the possession of a half-once of marijuana or less “akin to receiving a speeding ticket,” the Hartford Courant reports. First-time offenders would face a $150 fine, with subsequent offenses drawing penalties of at least $200 but no more than $500.

Malloy said that passage of the bill “accepts the reality that the current law does more harm than good – both in the impact it has on people’s lives and the burden it places on police, prosecutors and probation officers of the criminal justice system.”

Unsurprisingly, not everyone was on board with the change.

The most common argument against decriminalization tends to be that pot is a gateway drug that can lead to the use of more harmful drugs. But the new measure also drew criticism from lawmakers who see it as an arbitrary standard set by those hoping to win support for it.

"It can’t be OK if you have 30 marijuana cigarettes and bad if you have 50 marijuana cigarettes,'' said Themis Klarides, a Republican state congresswoman. "It's either bad or it's not bad."

Cultural reform essential for Labor

John Faulkner | The Australian | 10 June 2011

LABOR cannot thrive as an association of political professionals focused on the machinery of electoral victory and forming, at best, contingent alliances with Australians motivated by and committed to ideals and policies.

A party organisation staffed by experienced and competent strategists and managers is necessary to serve the campaign and organisational needs of Labor's members and supporters, not to substitute for them.

Some years back, I heard a member of Young Labor explaining a recruitment strategy: "Today's activists, tomorrow's leaders." I don't blame that individual for being absorbed into a culture that treats activism as a temporary phase on the way to the real work of entering professional politics, but I utterly reject the implication that our party is attractive only to those with the life goal of becoming parliamentarians.

Rather than "today's activists, tomorrow's leaders", I would say that "today's activists, tomorrow's activists" better represents the party I joined and the party I believe we must be to represent and help those Australians who most desperately need a government guided by the principles of making life better for working Australians.

We have lost a generation of activists from Labor and, if we do not face the challenges and opportunities of reform in structure and culture, we will risk losing a generation of voters as well. The party has become so reliant on focus groups that it listens more to those who don't belong to it than to those who do.

Premier acts on promise to review juvenile detention

Anna Patty | SMH | 10 June 2011

CONTROVERSIAL bail laws will be reviewed in response to an rise in the number of children in detention without any reduction in crime rates.

The Premier, Barry O'Farrell, yesterday appointed a retired Supreme Court judge, Hal Sperling, QC, to lead a comprehensive ''root-and-branch'' review of the Bail Act and to report in November. Mr Sperling will be backed up by the NSW Law Reform Commission.

Mr O'Farrell said he was concerned that juveniles charged with petty offences were being forced to mix with hardened criminals.

''This is particularly disturbing,'' he said, ''when many of the young offenders are eventually released by the courts without any custodial sentence.''

The review fulfils a Coalition election promise and responds to mounting evidence that amendments to the Bail Act in late 2007 fuelled a sharp increase in juvenile detention.

The NSW Attorney-General, Greg Smith, said the number of minors admitted to remand had risen from 3623 in 2006 to 5082 in 2008.

He said many young people were denied bail because they did not have a home and often spent up to six weeks in custody without serving a custodial sentence. He said he would ''encourage more accommodation for young people''.

Tory-led Government is completely out of touch on crime and criminal justice - Khan

Press Release | 8 June 2011 | UK Labour 

Sadiq Khan MP, Labour’s Shadow Justice Secretary, commenting on the Government’s u-turn on sentencing, said:

"Before the election David Cameron made big promises to people on knife crime, transparency in sentencing and prison building. He needs to explain to voters why these have all been broken. 

"The Tory-led Government's approach to sentencing - including proposing a 50% reduction in sentence for an early guilty plea - have damaged public trust in the sentencing process and must be dropped.

"We have seen other examples of this Government claiming they've done policy u-turns which don't actually materialise. The Government needs to unequivocally confirm the 50% discount in sentence for an early guilty plea for all offences will now be ditched.

"This Government is completely out of touch on crime and criminal justice. It is putting cutting costs ahead of cutting crime and protecting the public."

Teenager joins in class action over false arrests

Geesche Jacobsen | SMH | 8 June 2011

IT'S not often that a magistrate apologises to a person appearing before them. But that's what happened to Musa Konneh last year.

''The magistrate said: 'This boy is not meant to be here, why is he here?' The magistrate even said 'sorry' to me,'' the 19-year-old migrant from Sierra Leone recalled.

In the 12 hours before he appeared before court Mr Konneh had been falsely arrested, handcuffed, strip searched and spent a night in the police cells.

Two officers knocked on his door at 9.30pm on a Saturday night and arrested him, insisting he had breached his bail conditions by not reporting to police. He tried to explain they were wrong, but to no avail.

In fact, Mr Konneh was no longer on bail, and his case - for allegedly riding on the train without a ticket - had been dismissed in the Children's Court four days earlier. While the court had a record of the decision, the police computer system, which is meant to receive information from the courts system Justicelink, had not been updated.

A class action was filed in the Supreme Court yesterday against the NSW government over this and other detentions. Mr Konneh is the first young person to join it.

The case, launched jointly by the Public Interest Advocacy Centre and Maurice Blackburn Lawyers, will be open to other young people detained for a breach of bail conditions that were no longer in place at the time of the detention.

The case would seek to argue that it was ''not reasonable'' for police to rely on their COPS database when arresting young people for a breach of bail because the problem had been known for years, said Maurice Blackburn's NSW managing principal, Ben Slade.

He said there could be at least 200 young people falsely arrested in similar conditions.

The Herald reported in December that 22 people had been paid $2.7 million in compensation for wrongful arrest and false imprisonment because of the computer problem. The NSW Ombudsman last year reported three cases of Aboriginal men from Kempsey arrested for an alleged breach of bail conditions that were no longer in place.

Mr Slade said police were targeting ''vulnerable young people'' for the enforcement of bail conditions and Aboriginal children were over-represented among those falsely arrested. Police should only deprive children of their liberty as a last resort, he said.

He called on the government to fix the problem and ''take responsibility for this wrongful conduct … and apologise to them and compensate them''.

Baillieu guilty of a grave injustice

Greg Barns | The Age | 7 June 2011

Mandatory jail terms for young offenders undermine the pillars of our democracy.

A16-YEAR-OLD boy comes before a court and pleads guilty to a serious assault. Under the Baillieu government's laws, the judge or magistrate must sentence the youth to a term of imprisonment in a youth detention centre. But the court has heard that the young man has a history of mental illness, a horrific familial background, learning difficulties and has never committed an offence prior to the assault. Can a judge or magistrate be said to be upholding the law, which they are bound to do, by sending the youth to prison?

This is the position Victorian judges will find themselves in if Attorney-General Robert Clark has his way and makes good his promise last week to make jail mandatory - that's what youth training centres are in reality - for 16 and 17-year-olds who commit serious assaults.

Having to deprive a person of the most fundamental of human rights - liberty - irrespective of the person's individual circumstances inevitably troubles judicial officers because it turns them into rubber stamps. It is why judges in the Northern Territory, most recently Justice Judith Kelly on May 20, have made it abundantly clear when sentencing impoverished Indonesian fisherman who are caught under people smuggling laws which provide for mandatory jail terms, that they would not send the person to jail for that period if they were freed from the shackles of the law by which they were bound.

In a democratic society, courts are equal partners with the executive and the Parliament. They are the bulwark against the excesses of the other two. Mandatory sentencing removes the power to adjudicate. Or, as Desmond Manderson and Naomi Sharp put it some years ago, "courts forfeit their claim to be acting judicially".

The shackling of Victoria's judges and magistrates through mandatory sentencing in any form is a crude assault by the executive and the Parliament (although the latter is simply the lackey of the former, because the Baillieu government controls the Parliament) on the only arm of governmental power in our society that is designed to uphold justice irrespective of creed or colour.

It can also be argued that it is not only judges and magistrates who are being forced to act in morally repugnant ways, but also lawyers. Prosecutors, for example, will be forced in the case of the 16-year-old youth referred to above to argue that he must go to prison despite the fact it may well amount to torture and cruel and unusual punishment. The youth's lawyer will be similarly constrained.

In short, all the participants in the courtroom in a case involving a mandatory term of imprisonment for a 16-year-old youth with mental illness and associated difficulties are being forced to leave their moral compass at the door of the court in order to satisfy the political cravings of the Baillieu government and its media supporters.

Attorney-General Clark ought to rethink his plan for mandatory sentencing of young offenders convicted of serious assaults - not just because it does not work and leads to injustice, but because he is doing great damage to our democracy by removing the capacity of the courts and those who practise in them each day to accord genuine justice to citizens.

Seduced by the politics of penal populism

David Wilson | The Independent | 16 August 2006

Would 10,000 new offences make us all feel safer and keen to re-elect New Labour?

New Labour's new 3,023 offences demonstrate just how deeply they have been seduced by the politics of penal populism. This astonishing number of new crimes reflects the desire of a government to legislate first and think later - if they think at all. For what matters most to them is not to carefully assess the evidence that they have, but rather to be seen to have "done something" - anything - in the face of each new moral panic that bubbles up in the red-top papers.

This month moral panics about asylum seekers; prisoners absconding from open prisons, and suspected terrorists with plans to blow up aircraft, and lastly - indeed a favourite target throughout the course of New Labour's tenure in office - a police crackdown on young people.

New criminal offences can symbolise many things - from the changing sensibilities of our culture, to the need to legislate because of technological or economic developments. But first and foremost they reveal a paradox that lays bare the Government's strength and weakness. The strength to push legislation through parliament and control a political process, but a weakness to actually do anything about that elephant in the sitting room - crime.

The long list of new offences might, or might not, do anything about the level of crime in our community (it is difficult to be more precise for some of these pieces of legislation need time to bed into the criminal justice system before we can assess their impact).Crime is a complex phenomenon which has more to do with underlying economic causes and the widening gap between the rich and the poor, and as such can remain almost untouched by each new act that seems to promise much, but often delivers very little.

Look at the Anti Social Behaviour Order (Asbo), which was introduced in the 1997 Crime and Disorder Act when New Labour first came to power. Without doubt there are some communities that are indeed plagued by diverse behaviours from people whom the popular press, and indeed politicians such as Jack Straw (who is never slow to volunteer information about "Family X" in his constituency of Blackburn), like to describe as "neighbours from Hell"; but the Asbo was an idea that went wrong almost immediately. You cannot blame poor communities for social malfunction, or expect them to be repaired through an Asbo, when there are few opportunities for improvement, and a dearth of institutional support for those communities - which, ironically is what many people thought that they were voting for when they elected New Labour.

Hand in glove with the creation of all these new criminal offences goes the need to police these new offences, and then punish the perpetrators. Under New Labour prison in particular has become a place to disappear that troublesome population which has remained resolutely resistant to Asbos, community curfews, on-the-spot fines, or the blandishment of all the new 'Bobbies on the beat', Community Support Officers, or private security guards who are now increasingly policing public space.

With little community infrastructure to support people with mental health problems, or addictions - often the reason why "crime" is committed in the first place - prison has re-invented itself and become re-legitimised as the functioning alternative to the welfare state of Old Labour.

Given that there is a consensus between New Labour and the Conservatives about law and order there seems little to be gained in considering whether things might have been different if Blair had lost to Major in 1997.

The simple fact is that "cross-dressing" in relation to criminal justice policy has been alive and well since the early 1990s. That is the time when Jack Straw and Tony Blair learned from conservative US Democrats like Bill Clinton - who famously used his support of the death penalty to win the Presidential election against George Bush Snr - that the way for left-of-centre parties to regain power was to ensure that they were seen to be "tough on crime". Romantics might like to remember that the second part of this famous aphorism was to be "tough on the causes of crime", but criminological realists all recognise that that is but a distant soundbite which couldn't compete against red-top editorials predicting the end of civilisation as we know it.

Where will it end - 4,000 new offences? Perhaps 5,000? Would 10,000 new offences make us all feel safer and keen to re-elect New Labour? Ironically, with the "fear of crime" still high, it might be that the best way to convince the electorate that "something is being done" is to do nothing at all. Alternatively, we might elect a government that was keen to look beyond the statute book and deal with those structural factors in our society that impact on crime. A government that saw its purpose in creating opportunities for employment; ensuring that our children get access to good schools and well-qualified teachers; and that this was all under-pinned by a welfare safety net to provide a bulwark against the extremes of poverty. If we were to elect a government that got these things right, we would deliver the circumstances in which people could go about their lives peaceably and that would also make others behave without the need for more and more "crimes".

The writer is professor of criminology at UCE Birmingham