Wednesday, November 30, 2011

The Certainty of Memory Has Its Day in Court

Laura Beil | New York Times | 28 November 2011

Witness testimony has been the gold standard of the criminal justice system, revered in courtrooms and crime dramas as the evidence that clinches a case.

Yet scientists have long cautioned that the brain is not a filing cabinet, storing memories in a way that they can be pulled out, consulted and returned intact.Memory is not so much a record of the past as a rough sketch that can be modified even by the simple act of telling the story.

For scientists, memory has been on trial for decades, and courts and public opinion are only now catching up with the verdict. It has come as little surprise to researchers that about 75 percent of DNA-based exonerations have come in cases where witnesses got it wrong.

This month, the Supreme Court heard its first oral arguments in more than three decades that question the validity of using witness testimony, in a case involving a New Hampshire man convicted of theft, accused by a woman who saw him from a distance in the dead of night.

And in August the New Jersey Supreme Court set new rules to cope with failings in witness accounts, during an appeal by a man picked from a photo lineup, and convicted of manslaughter and weapons possession in a 2003 fatal shooting.

Rather than the centerpiece of prosecution, witness testimony should be viewed more like trace evidence, scientists say, with the same fragility and vulnerability to contamination.

Why is a witness’s account so often unreliable? Partly because the brain does not have a knack for retaining many specifics and is highly susceptible to suggestion. “Memory is weak in eyewitness situations because it’s overloaded,” said Barbara Tversky, a psychology professor at Columbia University’s Teachers College in New York. “An event happens so fast, and when the police question you, you probably weren’t concentrating on the details they’re asking about.”

Hundreds of studies have cataloged a long list of circumstances that can affect how memories are recorded and replayed, including the emotion at the time of the event, the social pressures that taint its reconstruction, even flourishes unknowingly added after the fact.

Tuesday, November 29, 2011

Prosecution claims insider trader's sentence excessive

Andrew Main | The Australian | 10 November  2011

CONVICTED insider trader John Hartman was given an excessive sentence in December by Justice Peter McClellan, the NSW Court of Criminal Appeal was told yesterday.

Surprisingly, it was the Commonwealth Department of Public Prosecutions' barrister, Robert Beech-Jones SC, who made that pitch yesterday, and not Hartman's barrister Tim Game SC.

The CDPP prosecuted the case on behalf of regulator the Australian Securities & Investments Commission, which has been trying to encourage defendants to plead guilty to insider trading charges rather than tie up the courts for long trials. Such guilty pleas attract shorter sentences.

Mr Beech-Jones told the judges the prosecution believed there had been an error in Justice McClellan's approach to sentencing in that he did not give a sufficient discount for the extent of Hartman's co-operation with the authorities in the lead-up to him being sentenced on December 2 last year.

He pleaded guilty to 19 charges of insider trading by "front running" institutional orders and six charges of passing information between March 2006 and January 2009.

Justice McClellan, Chief Judge at Common Law of the NSW Supreme Court, sentenced Hartman to 4 1/2 years' jail with a three-year minimum, the longest sentence of its type in recent years. Hartman, who had been a $350,000 a year fund manager at Orion Asset Management, appealed against the sentence on December 29 last year. He is eligible for parole on December 1, 2013.

One of the three judges hearing the appeal yesterday, Justice Michael Adams, expressed concern that while Hartman was aware what he had been doing was wrong, the depression he was suffering produced compulsive behaviour he had not been able to control.

The other judges on the appeal were justices Anthony Whealy, who chaired the panel, and Megan Latham.

Saturday, November 26, 2011

Radio attack dogs fail to shake lawman

Sean Nicholls | SMH | 26 November 2011

There are two inevitable rites of passage for any new NSW attorney-general.

One is a war of words with the Director of Public Prosecutions over funding and the merits of ''tough on crime'' legislation. The other, ironically, is being periodically bludgeoned by talkback radio hosts for being too ''soft on crime''.

In his first nine months in the job, the Attorney-General, Greg Smith, has managed to neatly sidestep the first, thanks largely to the retirement of Nicholas Cowdery and the appointment of the far less outspoken Lloyd Babb as the state's DPP.

But the lack of fireworks in this area has been more than compensated for by a spectacular clash with 2GB's morning presenter, Ray Hadley.

To recap: Smith, the member for Epping, is accused of making sneering comments about Hadley's audience and the readers of the Sydney Daily Telegraph at a Liberal Party Christmas function a week ago.

Hadley's audience were ''red necks'', while Tele readers were ''bigoted fools'', Smith is alleged to have said.

No doubt there are many who would wholeheartedly agree with the former assessment, especially given the quality of the debate generated by Hadley's relentless pursuit of the asylum seekers issue.

But naturally, and understandably, the radio host has taken deep offence at the slur on behalf of his listeners and has proceeded to tear strips off Smith in a series of blistering tirades, despite the A-G's strenuous denials.

(It should be noted that Hadley's three ''sources'' have not been named and none has been willing to go on the record to contradict Smith's version of events. This has been put down to the Liberal Party rule that threatens expulsion for members who discuss internal party matters in public - but it is quite a stretch to classify a Christmas party bash as official party business.)

While Hadley's complaints have focused on defending his audience's reputation, the dispute appears to have emerged from both men's very different relationship with the NSW Corrective Services Commissioner, Ron Woodham. Last month it was announced that Woodham, a veteran in the position, would have his contract renewed for only six months. This followed some pointed comments by Smith on the need for ''culture change'' in the NSW prison system to improve the treatment of prisoners, recently revisited by him over two deaths in custody that have become the subject of inquests.

It is the impression that Smith is critical of the culture that has flourished under Woodham's leadership, and that he is planning to get rid of Woodham to change it, that appears to have enraged Hadley.

Intriguingly, the attack on Smith has coincided with a stampede by media organisations for the right to document the life and times of the prisons boss. The ABC's Australian Story is believed to have been chasing Woodham with a proposal for a profile, as has Foxtel. The third bidder is Graham McNeice Productions, which wants to pitch a program to Channel Nine. Hadley is understood to have introduced Woodham to the production company.

Smith has so far weathered the storm with dignity and has refused to be cowed by Hadley's attacks. He has given as good as he has received and deserves to be congratulated for that. There seems to be a feeling among Sydney's talkback hosts that if they go hard enough, they will eventually get their way. And why wouldn't they, given how well it has worked in the past?

Smith, nine months into his term as Attorney-General, has an early opportunity to change that.

Tuesday, November 22, 2011

NSW Attorney-General Greg Smith in row with shock jock Ray Hadley

Nick Leys | The Australian | 22 November 2011

NSW Attorney-General Greg Smith has engaged in a slanging match with Sydney shock jock Ray Hadley over claims he called his listeners "rednecks" and readers of the city's daily tabloid "bigoted fools".

Sources in the Liberal Party claim Mr Smith made the comments at a Liberal branch Christmas party on Saturday night in Beecroft in Sydney's northwest.

Hadley, an often controversial radio presenter and a columnist for The Daily Telegraph, told 2GB listeners yesterday he was "disappointed" to hear of the comments, given his support for the Attorney-General.

"Apparently and allegedly -- and this has been confirmed by three sources, including people who took a transcript of Mr Smith's off-the-cuff speech -- he spoke at length about the 'rednecks' who listen to my program . . . you, his constituents," Hadley said. "And he spoke in detail about the bigoted fools who read The Daily Telegraph. He spoke about my support of a public servant whom he didn't name and my continued support of this public servant, a public servant he wants to get rid of, apparently, but whom the Premier has expressed a desire to keep."

During a seven-minute conversation that dropped out twice, Hadley and Mr Smith then argued about what was said and whether the Attorney-General supports NSW prisons boss Ron Woodham.

Hadley accused Mr Smith of "going back to your Labor Party ways" -- a reference to his membership of the party nearly 20 years ago.

Several times Mr Smith denied the remarks, but he admitted using the term "rednecks" when discussing people who "supported a culture in NSW prisons that existed in the past".

"I have been taken out of context," he said.

"Clearly I have some people in the Liberal Party who will do anything to poison you or poison you towards me."

The slanging match ended when Mr Smith's line dropped out for a second time.

Yesterday, the Attorney-General released a statement, in which he declared: "I did not disparage readers of The Daily Telegraph in any way.

"In fact, I said that while they normally take an aggressive line on law and order, the Telegraph and radio stations 2GB and 2UE had been prepared to give the government a fair go as we argue success on law and order should not be judged alone in terms of how tough sentences are or how many people are locked up."

Hadley could not be contacted yesterday.

Listen to the interview here

and some more Hadley ranting on Smith the next day

Attorney-General Greg Smith stung by Ray Hadley

Andrew Clennell | The Daily Telegraph | 22 November 2011

War of words ... Attorney-General Greg Smith and Ray Hadley. Source: The Daily Telegraph

UPDATE 11.59am THE head of the prison officers' union has joined an attack by broadcaster Ray Hadley on Attorney-General Greg Smith, saying Mr Smith's comments about the culture in the prison system are "absolutely disgusting".

Mr Hadley said on air today that Mr Smith had lied on his show yesterday over claims a prisoner had been punched and kicked.

Mr Smith had been defending himself yesterday against claims he denied that he had called Mr Hadley's listeners "rednecks" and The Daily Telegraph's readers "bigoted fools" during comments at a Liberal Party function.

Mr Smith had said he had referred to rednecks but: "I don't want to see people treated like dogs, whatever their status in life. You see a man being marched across a room like a dog recently on television and kicked into a prison cell, that man died two days later, there's an inquest on at the moment .. that's what I was talking on the other night."

Mr Hadley said today film footage of the incident concerned had shown a prisoner being "gently" placed in a cell, not kicked.

On Mr Hadley's program, Matt Bindley, the chairman of the Prison Officers Vocational Branch, said he and his members resented comments by Mr Smith that prison officers treated prisoners under the current culture as "like dogs".

"To be told we treat people like dogs ... is absolutely disgusting and we won't tolerate it," Mr Bindley said.

Hadley countered:"`I think he wants [prisons] to be some sort of retirement resort ... where they're [prisoners] going to be namby pambied."

In a fiery on-air exchange yesterday, Mr Smith denied he made the disparaging comments at the Pennant Hills Liberal Christmas party on Saturday night - despite Hadley saying he had three sources backing up the claims.

Hadley had accused Mr Smith of trying to go soft on "murderers and rapists" and seeking to get rid of prisons boss Ron Woodham.

One version of Saturday's function, from solicitor Mark Turnbull, was that Mr Smith referred to "certain redneck radio commentators" who wanted him to go harder on justice policy.

Mr Smith admitted he wanted less prisoners in jail and said he wanted to change a culture where prisoners were being bashed but he claimed Hadley had been misled.

"Clearly I have some people in the Liberal Party who will do anything to poison you towards me," Mr Smith said. Hadley then asked Mr Smith if he had called his listeners rednecks.

"I did not Ray. I talked about rednecks who supported a culture of ... NSW prisons in the past and it was in the context of me saying how upset I was at the treatment of two men who recently died," he said.

Hadley said: "You better be careful because I've spoken to three people ... who say that you called my listeners rednecks and you referred to readers of The Daily Telegraph as bigoted fools."

Mr Smith said: "I might have used the word redneck but it wasn't in specific regard to 2GB."

Berowra MP Philip Ruddock, one of those at the party, would not comment yesterday other than to say he did not recall comments "of that sort".

Mr Smith said last night: "I did not disparage readers of The Daily Telegraph in any way."

Monday, November 21, 2011

Oddly, Texas can teach the UK a thing or two on criminal justice

Conservative Texas prides itself on being tough, but it has learned that locking people up is a costly failure

The entrance to a block in Wandsworth prison, one of the largest in the UK. Photograph: Antonio Olmos

Hang 'em high Texas is not the first place you might look for lessons in criminal justice. The lone star state prides itself on its toughness, with more executions and fewer bleeding hearts than elsewhere in the US. Texas locks up more miscreants than anywhere else in the world. But it is the unlikely centre of a revolution in prison reform sweeping the US, overthrowing decades of failed polices and sterile debate driven by politicians scared of being seen as soft. The state has cut crime, costs and the numbers in jail to such an extent it has just shut a high-security prison for the first time in history.

What makes this prison revolt even more unexpected is that it is led by some of the most conservative figures in politics. They have decided – correctly – that an expensive prison system repeatedly locking up the same people is a sign of failure. As a result, they have endorsed policies traditionally seen as liberal to keep people out of jail.

The right in Britain should take note as our prison population hits record highs. Just as in this country, politicians in Texas were desperate to be seen as being tough on crime. There was reckless rhetoric and endless headline-grabbing legislation, including the ludicrous three-strikes law that led to life sentences for a third offence – even when that was stealing a slice of pizza.

Inevitably, prison populations and spending soared. The costs of incarceration rose fourfold in two decades. America now accounts for a quarter of all prisoners on the planet – and two-thirds of new inmates are recidivists.

Then Texas decided enough was enough. Four years ago, it was told to spend another $2bn on 17,332 new prison places. Instead, the state opted to invest in halfway houses to help those leaving prison and schemes to aid addicted and mentally ill offenders. Since then, taxpayers have saved a billion dollars, violent crime has fallen to its lowest level for three decades, and the right has seen the light on criminal justice. More than a dozen states have made similar moves, with some of the most doughty bastions of conservatism softening sentencing policies and shifting emphasis to treatment, training, early release and community-based punishments. A campaign called Right On Crime has been launched to promote the idea, supported by conservative standard-bearers such as Jeb Bush and Newt Gingrich.

The driving force was financial. But it makes perfect sense for the right. As the group's website says, turning law-breakers into law-abiding citizens should be a conservative priority because it advances public safety and the rule of law. The cause unites libertarians wanting to scale back the state, fiscal conservatives seeking to reduce spending, social conservatives concerned by family breakdown, and a religious right that believes in redemption.

Is it too much to hope for a similar outbreak of common sense in Britain? Among the biggest disappointments of the Blair and Brown governments was their pandering to the right on crime, with 28 criminal justice bills. The coalition has tried to adopt a more evidence-based approach, with an emphasis on rehabilitation and payment by results, but is wobbling in the face of fury on the backbenches and in the media.

Such is the hysteria that the sensible abandonment of cruel indeterminate sentencing had to be smuggled out last month under cover of tougher sentences for knife crimes. There was relief in Downing Street at the strategy's success – but they are still kicking around a keynote speech on crime by the prime minister already postponed for a year.

It is clear from several countries, notably Finland, that imprisonment has no impact on crime rates. Putting fewer people in prison means more money can be spent on more effective community-based punishments, which are often tougher than lying around stoned all day in prison. In the Netherlands this approach has been so successful prisons built in expectation of rising crime are being rented to Belgium.

Locking people up and throwing away the key is a costly failure. The alternatives are smart, not soft.

Swearing at police is not a crime, judge rules

Murray Wardrop | The Telegraph (UK) | 21 November 2011

Swearing at police is not a crime because officers hear foul language “too frequently” to be offended, a judge has ruled.

The decision by the Court of Appeal to overturn the public order conviction of a young suspect who repeatedly said the "F" word while being searched for drugs was last night condemned as "unacceptable".

Policing unions said the ruling would undermine respect for officers.

Overturning Denzel Cassius Harvey's conviction, Mr Justice Bean said officers were so regularly on the receiving end of the "rather commonplace" expletive that it was unlikely to cause them "harassment, alarm or distress".

Mr Harvey appealed against his conviction after he was fined £50 for bombarding police with foul language when they attempted to search him for drugs.

The 20-year-old objected to officers searching him for cannabis in Hackney, east London, and unleashed a tirade of verbal abuse, saying: “---- this man. I ain't been smoking nothing.”

When the search revealed no drugs, he continued: "Told you, you wouldn't find ---- all.”

Asked whether he had a middle name, he replied: "No, I've already ------- told you so.”

Magistrates at Thames Youth Court found him guilty in March last year after concluding Mr Harvey's expletives were uttered in a public area while a group of teenage bystanders gathered around.

"There were people around who don't need to hear frightening and abusive words issuing from young men," the magistrates said.

However, bringing his appeal, Mr Harvey challenged his conviction claiming that no one within earshot – let alone two hardened police officers – would have been alarmed, distressed or harassed by his swearing.

Allowing the appeal, Mr Justice Bean said the only people nearby were the police officers and the group of youths – many of whom may have been "sympathetic" with Mr Harvey.

The expletives he used were heard "all too frequently" by police officers on duty, said the judge, and so were unlikely to have greatly disturbed them.

As for those watching the incident, the judge said it was "quite impossible to infer that the group of young people who were in the vicinity were likely to have experienced alarm or distress at hearing these rather commonplace swear words used".

Peter Smyth, chairman of the Metropolitan Police Federation, said: “If judges are going to say you can swear at police then everyone is going to start doing it.

“I’m not saying that police officers are going to go and hide in the corner and cry if someone tells them to F off, but verbal abuse is not acceptable and this is the wrong message to be sending out.”

The ruling comes after police chiefs were accused earlier this year of surrendering to foul-mouthed louts by banning officers from arresting yobs who taunt them with swear words and offensive language.

Guidance issued by the Metropolitan Police – Britain’s largest constabulary with more than 32,000 officers – told front-line police not to act because the courts will not believe they have been upset by the abuse.

The directive states: “The courts do not accept that police officers are caused harassment, alarm or distress by words such as ----, ----, -------, or ------.”

AG at Estimates: Bail

General Purpose Standing Committee No 4 | Attorney General and Justice | 26 October 2011

The Hon. TREVOR KHAN: Attorney, I think the final question asked by Mr David Shoebridge related to the Bail Act. Are you able to indicate to the Committee what the current trends are with regard to bail and whether the Government is considering any reform of the bail laws in New South Wales? 

Mr GREG SMITH: It is a very topical issue; there was an excellent piece in the Sydney Morning Herald today by Geesche Jacobsen in which she referred in some detail to a submission by the Chief Magistrate to the bail review, setting out the magistrate's perspective on problems. A Bureau of Crime Statistics and Research report on trends in bail and sentencing outcomes in New South Wales criminal courts between 1993 and 2007 revealed that in local courts the proportion of defendants refused bail doubled during those years, from 3.6 per cent to 7.6 per cent. In the District and Supreme courts the proportion of defendants refused bail during that period also doubled, from 23.8 per cent to 47.6 per cent. 

A Bureau of Crime Statistics and Research report on the use of unconditional bail before trial in New South Wales between the years 1999 and 2008 found that over the past decade there has been a marked reduction in the number and percentage of cases where bail is dispensed with, from 60.3 per cent in 1999 to 44.9 per cent in 2008; and that, while there has been some increase in the percentage, 3 per cent, and number of defendants refused bail, the main change has been a rise in the number of defendants placed on bail rather than released unconditionally. 

Another trend has been the increase in the number of juveniles being held in custody pending a court 
outcome—that is, being held on remand. Between 2007 and 2008 the juvenile remand population in New South Wales grew by 32 per cent, from an average of 181 per day to 239 per day. In 2009 there was a downward trend in the juvenile remand population, and this continued to the end of 2010. Remand numbers spiked in March 2011, to 261, and in July of 2011, to 241. On Saturday night 23 October 2011 there were 197 young people held on remand. The average number of juvenile remandees per day in 2010-11 was 193, and this is still higher than the daily number in 2007. 

The juvenile remand rate continues to be characterised by significant fluctuations and remains at an unacceptably high level. Fifty to 60 per cent of young people in detention centres are held on remand; 90 per cent of admissions to detention centres are remand admissions; and approximately 82 per cent of young people remanded in custody do not receive custodial sentences. Pressure is being placed on the remand population by an increase in both the number of juveniles placed on remand and the average length of stay on remand. 

Increases in the remand population are also occurring among adults. As at 16 October 2011, 2,671 people were in full-time custody on remand, awaiting trial or sentence. This is an increase of 86 per cent over 10 years since 30 June 2010, when only 1,433 people were in full-time custody on remand. 

We have commenced the Bail Act review, and on 8 June I asked the Law Reform Commission to undertaken a review of bail law in New South Wales. I am concerned that the Bail Act may have moved away from the spirit and intent of the original legislation—as was reflected in the comments made by the Chief Magistrate, Graeme Henson, reported in the newspaper today. This was to ensure attendance at a hearing or trial, to stop defendants from committing further offences and to prevent interference with witnesses. In announcing the review I was also conscious of the number of people on remand, especially juveniles. I also have concerns about the complexity of bail law in New South Wales and I know these concerns are shared by members of the legal profession and the bench. Bail laws should be as clear and straightforward as possible. 

The terms of reference for the review incorporate issues such as: the objects of the Bail Act; the factors to be considered and presumptions to be applied in bail determinations; the consequences of breaching bail; the desirability of maintaining section 22A of the Bail Act; and the application of bail laws to young people and Aboriginal people and Torres Strait Islanders. The Law Reform Commission can also consider the bail laws of other jurisdictions and any additional bail-related matter. A retired Supreme Court judge, the Honourable Hal Sperling, QC, is leading the New South Wales Law Reform Commission project, with the assistance of its chair, former Justice James Wood, and is due to report next month. 

I would like to make a few comments on the juvenile remand population. I am advised that the heads of justice agencies were asked to look into the issue of increases in the number of juveniles being held in remand, and to identify the causes of the increase. As part of this process, advice was sought from the Bureau of Crime Statistics and Research, which identified two major correlating factors: increased policing of bail conditions, which I think is due to the old State Plan, which we have ditched; and changes made to the Bail Act 1978 in 2007 to prevent the making of repeat bail applications in the same court. I might continue with more comments on that matter later, if that is the end of this period.

Friday, November 18, 2011

Occupying the First Amendment

Raymond Vasvaril | Slate | November 15, 2011

What the actions over Zuccotti Park teach us about public spaces and citizen protest.

For nearly 60 days, demonstrators gathered in Zuccotti Park, a privately owned and very publicly occupied sliver of lower Manhattan, to Speak Truth to Power at what has become the hub of the Occupy Wall Street movement. But last night, Power was in no mood to chat. So shortly after 1 a.m. several hundred New York City Police surrounded the park dressed in riot gear, illuminated the encampment with klieg lights, and delivered—on behalf of Power—the same message that made Max von Sydow so charming in the Exorcist: “Get out.”

And get out they did. In a few hours time, over 200 demonstrators were arrested. Police cordoned off streets approaching the park, keeping the curious, the sympathetic, and most notably the press away from the action. Several journalists reported being roughly handled by police in the process, and an order closing the air space over lower Manhattan ensured that news helicopters couldn’t get footage of the raid.

That was the state of affairs when the First Amendment right to peaceably assemble smashed into the right of cities to protect their parks. And that was the state of affairs at 8 a.m., when Mayor Michael Bloomberg issued a statement affirming his deep regard for the First Amendment. He proceeded to give the sort of stern lecture about rights and responsibilities that sitcom fathers give their badly behaved teens, the tenor of which was that while free expression is generally a good thing, this nonsense had gone on long enough, and the city of New York had run out of patience.

It is no exaggeration to say that what happened overnight could be a watershed moment for the Occupy Movement: Frankfort, Ky., San Francisco, and Cincinnati have all been occupied, but the encampment near Wall Street has been the spiritual and symbolic center of a leaderless movement that has taken the example of Zuccotti Park and turned it into a moral franchise of sorts around the world.

Our ‘Broken System’ of Criminal Justice

John Paul Stevens | New York Review of Books | November 2011

The Collapse of American Criminal Justice
by William J. Stuntz
Belknap Press/Harvard University Press, 413 pp., $35.00 

Drawing by Honoré Daumier

William Stuntz was the popular and well-respected Henry J. Friendly Professor of Law at Harvard University. He finished his manuscript of The Collapse of American Criminal Justiceshortly before his untimely death earlier this year. The book is eminently readable and merits careful attention because it accurately describes the twin problems that pervade American criminal justice today—its overall severity and its disparate treatment of African-Americans.

The book contains a wealth of overlooked or forgotten historical data, perceptive commentary on the changes in our administration of criminal justice over the years, and suggestions for improvement. While virtually everything that Professor Stuntz has written is thought-provoking and constructive, I would not characterize the defects in American criminal justice that he describes as a “collapse,” and I found his chapter about “Earl Warren’s Errors” surprisingly unpersuasive.

Rather than focus on particular criminal laws, the book emphasizes the importance of the parts that different decision-makers play in the administration of criminal justice. Stuntz laments the fact that criminal statutes have limited the discretionary power of judges and juries to reach just decisions in individual cases, while the proliferation and breadth of criminal statutes have given prosecutors and the police so much enforcement discretion that they effectively define the law on the street.

Ironically, during an age of increasing protection for civil rights, discrimination against both black suspects and black victims of crime steadily increased. Stuntz attributes this development, in part, to the expansion of prosecutorial and police discretion—in his view, “discretion and discrimination travel together.” For example, the discretionary authority to enforce posted speed limits has enabled state troopers to be selectively severe in making arrests, and to use those arrests to justify searches for evidence of drug offenses. While Stuntz does not suggest that such discriminatory enforcement of traffic laws is itself a national crisis, it provides one illustration of the negative effects of excessive enforcement discretion.

The result, Stuntz writes, has been a serious disadvantage to African-Americans in their encounters with the American criminal justice system. While only 10 percent of the adult black population uses illegal drugs, as does a roughly equal percentage—9 percent—of the adult white population, blacks are nine times more likely than whites to serve prison sentences for drug crimes. “And the same system that discriminates against black drug defendants also discriminates against black victims of criminal violence.” As “suburban voters, for whom crime is usually a minor issue,” have come to “exercise more power over urban criminal justice than in the past,” police protection against violent felonies has disproportionately extended to suburban neighborhoods rather than the urban centers where more black individuals reside.

The “bottom line,” Stuntz explains, has been that “poor black neighborhoods see too little of the kinds of policing and criminal punishment that do the most good, and too much of the kinds that do the most harm.” In this sense and others, Stuntz concludes, our criminal justice system has “run off the rails.”

A major part of the book includes a historical narrative that identifies the sources of this discrimination against African-Americans and also explains the severity of our treatment of all offenders. The severity of the system is almost as disturbing as its discriminatory impact. In the years between 1972 and 2007, the nation’s imprisonment rate more than quintupled—increasing from 93 to 491 per 100,000 people. The rate at the end of that period vastly exceeded the analogous rate in other Western countries, which varied from 132 for England and Wales to a mere 74 in Germany and 72 in France. Moreover, during those years,
The number of prisoner-years per murder multiplied nine times. Prisons that had housed fewer than 200,000 inmates in Richard Nixon’s first years in the White House held more than 1.5 million as Barack Obama’s administration began. Local jails contain another 800,000.
Rather than a “collapse,” however, these figures suggest to me that the current system of criminal law and enforcement (like too many of our citizens) has grown obese.

Stuntz believes that two enormous migrations that led to crime waves largely define the history of crime and punishment in the United States. The first occurred during the seventy years preceding World War I when over 30 million Europeans came to America and settled primarily in cities in the industrial Northeast. The second occurred during the first two thirds of the twentieth century when seven million blacks left the rural South and moved into the same cities. To put simply Stuntz’s description of the central difference between those two migrations: during the European migration, urban politics soon produced local police forces made up of officers who were similar to and resided among the residents of the areas they were protecting—Irish-Americans trusted Irish cops from the neighborhood to treat them fairly—whereas during the black migration, the white majorities living in suburban areas selected the prosecutors and police officers who enforced the law in black urban neighborhoods.

Sunday, November 13, 2011

Ken Clarke: the revolution that never was

Editorial | The Guardian | 28 October 2011

It has become plain that by ducking the argument, the justice secretary is losing it

A pragmatic man in an excitable field, Ken Clarke started out determined to get a grip on Britain's remorselessly rising prison population. Between his spell at the Home Office in the early 90s and his reincarnation as justice secretary, the number expensively – and for the most part aimlessly – banged up in England and Wales had doubled to 85,000. The average annual cost of keeping each there is £41,000. With crime under control, and cash painfully tight, Mr Clarke robustly explained why the great jail-building boom must stop. But then, with some singularly ill-chosen words, he created the offensive impression that some rapes were not serious, a misstep which stirred reactionary forces on both sides of the Commons to goad David Cameron into hacking chunks out of his reforms. Ever since, the justice secretary has made his case with an uncharacteristic lack of directness. This week it has become plain that by ducking the argument, he is losing it.

The frenzy around crime often retards the policy, and there were reminders of that on Friday in the rightwing press. Labour shamelessly seized on their claims that Mr Clarke was about to set 2,500 "dangerous offenders free". This was the supposed effect of replacing David Blunkett's malfunctioning indefinite sentences with harsher definite terms, a move which will affect future and not current prisoners, and which may – if Whitehall's hazy predictions prove right – put some downward drag on the overall numbers from around 2019. In other words, the wild men supposedly about to be unleashed on the streets might be individuals who have not yet committed any crime; and their earlier freedom – or not – would depend not merely on future parole decisions, but on other policies followed by Mr Clarke and indeed his successors. This move is nonetheless to be welcomed, seeing as release from indefinite sentences is arbitrarily dependent on whether the resources to assess prisoners as fit to be freed happen to be at hand, an injustice which, as Mr Clarke says, is "a stain on the system".

But of the many questions being settled through Mr Clarke's 11th-hour amendments to his own legislation ahead of parliamentary votes next week, this is the sole point on which he has prevailed. A long-term proponent of giving judges discretion to respond to the contours of the individual case, the justice secretary was slating mandatory sentencesthat tie judicial hands as recently as Tuesday. Yet by Thursday it had emerged that he would be legislating for a presumption to imprison youths as well as adults caught wielding knives, and for mandatory life sentences, until now used exclusively for murder, to be imposed on repeat offenders of certain other crimes.

"Two strikes and you're out" is a wheeze of precisely the same stripe as Michael Howard's three-strikes policy, which Mr Clarke holds up as a case study in bad law. The fact that it has the same get-out clauses that the Lords attached to the three-strikes law may limit the direct damage – the justice secretary says it will create 20 extra lifers each year. But he is being too pragmatic for his own good here, if he imagines that is the end of the matter. The rigid mandatory term for murder has long been a problem, and it is now being extended rather than reformed: a dangerous precedent for more reactionary justice secretaries to exploit in future.

More generally, since the riots we have had another spike in prison numbers, and all the pressures are pushing the same way: from increased magistrates' sentencing powers to the new knife edicts. These things were not in the coalition agreement. They are undermining the rehabilitation revolution, and with it the serious liberal case for this government. Besides, all past experience shows that it is punitive rhetoric more than detailed policies that leads to courts getting tougher. Mr Clarke did try, but ended up settling for fudge and mudge. And that won't do the job.

Crack appears in juvenile detention plan

Farah Farouque | The Age | 10 November 2011

A CHINK has emerged in the Baillieu government's law and order crackdown as it confirmed plans to defer mandatory minimum custodial sentences for youths aged 16 and 17 convicted of ''gross violence'' offences.

While the government says it is still committed to the controversial laws to incarcerate teenagers, legislation introducing four-year minimum prison terms for adults convicted of the violence offences will proceed first.

Laws tackling adults will be introduced in the first tranche next year, leaving time to consult further on two-year minimum youth detention terms for juvenile offenders - a concession welcomed by the legal profession.

Attorney-General Robert Clark was responding yesterday after a key expert body said that when teenagers were charged with gross violence offences such cases should be automatically transferred out of the Children's Court into the jurisdiction of a higher court where they would be afforded more rights.

Professor Arie Freiberg, chairman of the Sentencing Advisory Council, said it was important ''not to compromise the operation of sentencing'' in the Children's Court, which included rehabilitation.

Professor Freiberg said the council had not been asked to assess the merits of the government's election commitment to introduce statutory minimum sentences for gross violence offences, subject to limited exceptional circumstances.

But the council's report noted most submissions it had received on children from bodies ranging from the Victorian Bar and the Law Institute to the Uniting Church argued that a minimum sentence should not be applied to juveniles.

Incoming Law Institute president Michael Holcroft said he hoped to persuade the government to abandon the plans to incarcerate more juveniles.

"We will be working with the government to do all we can to ensure that the focus for dealing with juvenile offenders is on rehabilitation rather than ensuring they follow a life of crime beginning in a youth justice centre," he said.

In the report, which Mr Clark has been considering since September, the council proposed that two new offences be created to cover circumstances involving ''gross violence''.

The proposed offences are: intentionally causing severe injury and recklessly causing severe injury.

The council has urged that ''severe'' injury be defined in the legislation to cover ''injuries of a long-term nature involving serious impairment to, or loss of, a body function or serious disfigurement''. Such injuries would also cover loss of a foetus.

Professor Freiberg noted that at present the gradation between causing ''injury'' and ''serious injury'' was vague. The Court of Appeal had held that injuries such as two black eyes and a grazed forehead could constitute ''serious injury'' and, given the potential for loss of liberty under the new laws, there should be a higher injury threshold for gross violence.

The Baltimore of The Wire and the doctor trying to change the brains of those who grow up there

Richard Glover | 702 ABC Radio | 10 November 2011

Professor Robert Blum is a world expert on the adolescent brain.

Here he explains to Richard Glover how dysfunction is built into the brains of those depicted in The Wire.

Download the audio file

Wednesday, November 9, 2011

Nightclub assailant protests he was the real victim

Geesche Jacobsen | SMH | 7 November 2011

An attacker's family links police response to the profile of the victim, writes Geesche Jacobsen.

WHEN Blake Markou was assaulted outside Souths Juniors about six years ago, needing stitches to his face, he says police told him to ''piss off'', rejecting the idea of taking a statement or trying to gather video footage of the incident.

But when he assaulted a young man in an Oxford Street nightclub in August 2009, he says while trying to defend a friend, police swung into action.

Markou and his family believe the difference in the police response is not because of the nature of the attack, but the identity of the victim: the then 19-year-old son of the senior Crown prosecutor, Margaret Cunneen, SC.

Her son, Matthew Wyllie, lost two teeth and had his upper jaw dislodged after being hit twice, by two men. He required four operations, including two bone grafts.

The case has involved a complaint to the Legal Services Commissioner, allegations of improper conduct, and an internal police investigation, and now the state's highest court will hear an appeal against one of its lowest penalties.

The complaints have been dismissed and police and the DPP are adamant the case was handled like any other, but Markou's mother, Linda, remains angry.

Margaret Cunneen ... her son was beaten up. Photo: Ben Rushton

''They should have arrested the whole bloody lot of them and charged them with affray,'' she said of the incident in the Nevermind nightclub when two groups of friends became involved in a confrontation.

''If I was in that position again, I probably would not do anything different,'' says Markou, now 27. ''I would jump in and help my mate.''

Markou was charged with assault occasioning grievous bodily harm, given stringent bail conditions and a curfew, which was checked by police on average every second night, around midnight, for four months.

The whole incident had lasted a few seconds, and the District Court Judge Michael Finnane found Mr Wyllie's injuries might have been caused by a hit from the second man. He convicted Markou of the lesser charge of assault occasioning actual bodily harm, sentencing him to a nine months intensive corrections order, a new penalty which has replaced periodic detention.

Markou is appealing the conviction and sentence in the Court of Criminal Appeal because it stops him from joining the army.

Two other men involved were dealt with in the local court and given good behaviour bonds.

Juvenile Justice reviews

Liz Keen | ABC Mid North Coast | 8 November, 2011

Listen to interview with Anne Marr, Regional Director Northern Region of Juvenile Justice

The NSW Government is conducting a review of the laws governing juvenile offenders.

NSW Attorney General, Greg Smith has released a consultation paper looking at whether the laws are effective and consistent with the Government's commitment to cutting re-offending rates.

The Deputy Premier, Andrew Stoner, has organised an invitation only consultation with business members in Kempsey this Wednesday looking into Juvenile Justice locally.

Anne Marr is the Regional Director of the Northern Region of Juvenile Justice, Attorney General and Justice Department and she said the Kempsey meeting will sit alongside other community consultations to feed recommendations to the current reviews.

She says that while it is important that young offenders understand the impacts of the crime they have committed, it is also important the system looks at ways to stop the young person from reoffending.

"When you're locking up a 14 year old, you've got to do something to turn that young person around and make them a positive member of society."

Juvenile of Justice studies have shown that 60% of young offenders have a history of child abuse and trauma, 27% have been placed in care before the age of 16, 8% have a child of their own and 12% have a deceased parent; Ms Marr says that these issues need to be addressed.

A recent pilot project in Kempsey, The Kempsey Family Inclusion Project, had some success working alongside the family of a young person who has been found guilty of an offence and Anne Marr says that these sorts of projects could come out of the reviews.

"When we work at those different levels with a young person that's offending we have a much better chance of success than when we work with the young person just in isolation,"

AG at Estimates: Graffiti

General Purpose Standing Committee No 4 | Attorney General and Justice | 26 October 2011

Mr DAVID SHOEBRIDGE: I turn to the graffiti laws that the Government has been attempting to get
through Parliament. Was there any consultation with your department or with you about the proposed terms of those graffiti laws?

Mr GREG SMITH: I think I took advice. They took part in a Cabinet minute process. I am not sure that we discussed it in any great detail. There has been discussion about the setting up of the graffiti hotline. There has been discussion about the retention of Graffiti Action Day and discussion about assisting local councils that previously had not been assisted. When we were in the drafting stages there was some discussion about the implementation of the P-plate provisions and that sort of thing. That is all I recall. There was no brawl, no argument.

Mr DAVID SHOEBRIDGE: Do you accept that the pattern of laws, putting more juveniles before the courts, is contrary to your oft-repeated statements about removing juveniles from the criminal court system and taking a different and fresh approach to juvenile justice in New South Wales? It is directly contrary.

Mr GREG SMITH: I do not accept it is directly contrary. I think the graffiti situation is in plague proportions. It is a very serious area of potential criminality. It is a bad crime in itself and it leads to worse crimes—that is my belief. By putting them before the court, in a sense, we are helping to save them from a life of crime.

Mr DAVID SHOEBRIDGE: It is directly contrary to your work development order

AG at Estimates: Mental Health in custody

General Purpose Standing Committee No 4 | Attorney General and Justice | 26 October 2011

Mr DAVID SHOEBRIDGE: Attorney, in the 2011-12 budget do you know the amount allocated to mental health care services for people in New South Wales correctional centres?

Mr GREG SMITH: No, I do not.

Mr DAVID SHOEBRIDGE: Does either Mr Glanville or Mr Woodham know the amount allocated?

Mr WOODHAM: I cannot tell you the exact dollar figure, but I can relate to the programs that we have, which are very expensive and very intense.

Mr DAVID SHOEBRIDGE: Could you give the dollar figure on notice?

Mr WOODHAM: Yes, I can give you that.

Mr DAVID SHOEBRIDGE: Could you include whether any recurrent funding has been allocated for that purpose?

Mr WOODHAM: It is there every year, because large sections of our remand jails are involved with mental health.

Mr DAVID SHOEBRIDGE: Mr Hubby, could I ask you to provide the same figures and details in relation to young people in Juvenile Justice centres?

Mr HUBBY: I will. I would note though that health services in Juvenile Justice centres are generally provided by NSW Health. So some costs are incurred directly by our agency, but some are incurred by NSW Health.

Mr DAVID SHOEBRIDGE: Could you give the NSW Health figures to the extent they are available to you?

Mr HUBBY: I will take that on notice.

Mr DAVID SHOEBRIDGE: Mr Woodham, could you give the same figures for the amount allocated for mental health care services for people in privatised correctional centres in New South Wales, and include the recurrent figures?


Mr DAVID SHOEBRIDGE: So that is a separate figure for the privatised centres.

Mr WOODHAM: What the whole facility costs?

Mr DAVID SHOEBRIDGE: No. The amount allocated to mental health services.

Mr WOODHAM: Our main programs are not there.

Mr DAVID SHOEBRIDGE: Which is why I am asking can you give the amount allocated in those privatised centres, including by centre, so Parklea and Junee.


Tuesday, November 8, 2011

Legal aid: the new poor law

Editorial | The Guardian | 26 October 2011

Thousands of litigants will be denied legal support and forced to take charge of their own cases, without any clue about how to

Where you have notional rights, but not the means to enforce them, things always get messy. That much has been acknowledged since Henry VIII's day. A 1531 statute provided that subjects who could not afford court costs should not have to pay them – so long as they submitted to some other punishment, such as the pillory, in the event their case was lost.

Legal aid was designed to fill the justice gap for the poor in a more durable way. As it is rolled back through retrenching "reforms", the emerging disarray will make a pelting with rotten fruit seem like a tidy solution. Top judges are not given to opening their mouths unless they have something to say, and yet yesterday several supreme court justices told the Guardian about the disorderly logjam in prospect. Thousands of litigants will be denied legal support and forced to take charge of their own cases, without any clue about how to do so. It is like inviting people who have never even been car passengers to drive straight on to the motorway. And the court staff and clerks, who might previously have provided pointers away from the worst pile-ups, are being cut back as well.

Still worse damage will be done away from the courtroom. Whitehall dismisses the modestly paid solicitors who dedicate themselves to serving the poor as a "producer interest". But the pay freezes in prospect for other public servants are positively indulgent as compared to the hammering these professionals are already taking: yesterday Labour peer Lord Bach argued in vain against a statutory order for an outright cut of 10% in fees. Things will get very much worse with the legal aid, sentencing and punishment of offenders bill, which is coasting towards a third reading in the Commons next week. With the wholesale removal of state support from whole swaths of law, such as social security, the frail infrastructure of community law centres and advice bureaux could wither away. These not-for-profit outfits should be integral to any "big society", yet somehow their rent has to be paid, and, in practice, it has often been through legal aid fees. The government's own impact assessment does not disguise that very many will shut their doors.

A shame, but one that cannot be avoided in these fiscal climes, is the best argument ministers can muster. That really won't do. The Ministry of Justice might save but the exchequer will not do so, since unaided cases will soon translate into destitution that will continue to trigger costly interventions from various social services. A coalition that talks a good deal about English liberties should reflect on Lady Hale's reminder of an old saying, which is acquiring a chilling new resonance. "In England, justice is open to all – like the Ritz."

Plucked from poor villages, boys land in jail

Natalie O'Brien and Cosima Marriner | SMH | 6 November 2011

Homecoming ... Faisal Arysad's mother and grandmother await his return. Photo: Rebecca Henschke

FAISAL ARYSAD was 16 when he was offered a job as a kitchen hand on what he was told was a fishing boat. The offer of $500 was a fortune - almost one year's pay - for the boy who lived with his mother and grandmother in a dirt-poor fishing village in West Timor.

When passengers boarded the boat, he was told it was for a sightseeing tour of the surrounding islands. The next he knew, he told his lawyers, their boat was picked up by an Australian navy ship and he was put in detention, then jail.

''The people smugglers simply get naive people, and the youths fall into that category,'' said Faisal's Brisbane lawyer, David Svoboda.

Sent home ... Ako Lani, 16, back fishing on Roti Island. After six months in an Australian adult jail, he was led into court in manacles. Photo: Rebecca Henschke

''These kids sit in villages with no work. Recruiters walk into the village offering $500. They tell them they'll be met by a ship to pick these people up at their destination. When a ship rolls in and it's full of cannons it's really surprising. These kids are genuinely surprised it's the Australian navy.''

Despite Faisal telling Immigration officials he was 16, the federal police did not believe him. They gave him a widely discredited wrist X-ray test which estimated his age to be about 19. The police charged him with people smuggling and he was put in the Arthur Gorrie maximum-security jail in Brisbane, which houses paedophiles including Robert John Fardon and Brett Peter Cowan, the accused killer of Daniel Morcombe.

But eight months later the charges have been withdrawn after Mr Svoboda flew to Indonesia to gather proof of Faisal's age.

Jailing fathers increases problems in Indigenous communities

Richard Fletcher | The Conversation | 13 October 2011

There are hopeful signs from a number of sources that the “get tough on crime” approach is working, with politicians promising the era of more prisons and longer sentences has had its day. Movements such as Justice Reinvestment – redirecting money earmarked for prisons to address disadvantage in communities…


Richard Fletcher receives funding from government and non government organizations. His research team developed the Brothers Inside program.

Measures are needed to reduce the number of fathers going into jail as well as the number not coming back. Casey Serin

There are hopeful signs from a number of sources that the “get tough on crime” approach is working, with politicians promising the era of more prisons and longer sentences has had its day.

Movements such as Justice Reinvestment – redirecting money earmarked for prisons to address disadvantage in communities prisoners come from – is one manifestation of a more rational and humane approach to crime.

For Aboriginal communities, where imprisonment has reached epidemic proportions, this shift is long overdue.

And the research community has a responsibility to make the costs more transparent, not just to the taxpayer but to Aboriginal communities, prisoners and prisoner families as well.

Deaths remove fathers completely

We were reminded of one aspect of these costs when marking 20 years since the Royal Commission into Aboriginal Deaths in Custody.

In the time since that report highlighted the unacceptable, and often brutal, deaths of Aboriginal men in custody, 269 more Indigenous men have died in similar circumstances.

Most of the Aboriginal men who die in custody are fathers, as are most of those who remain in custody. And in Indigenous communities, both fathers and men who are not fathers have important roles to play children’s growth and well-being.

So, when Aboriginal men are removed from the community, the social and family relationships that might steer young people away from crime break down and the nurturing these men might provide is lost.

Interrupting Violence With The Message 'Don't Shoot'

NPR Fresh Air | November 1, 2011

Listen to the Interview [31 min 14 sec]

Don't Shoot One Man, A Street Fellowship, And The End of Violence in Inner-City America

by David M. Kennedy

In 1985, David M. Kennedy visited Nickerson Gardens, a public housing complex in south-central Los Angeles. It was the beginning of the crack epidemic, and Nickerson Gardens was located in what was then one of the most dangerous neighborhoods in America.

"It was like watching time-lapse photography of the end of the world," he says. "There were drug crews on the corner, there were crack monsters and heroin addicts wandering around. ... It was fantastically, almost-impossibly-to-take-in awful."

Kennedy, a self-taught criminologist, had a visceral reaction to Nickerson Gardens. In his memoir Don't Shoot, he writes that he thought: "This is not OK. People should not have to live like this. This is wrong. Somebody needs to do something."

Kennedy has devoted his career to reducing gang and drug-related inner-city violence. He started going to drug markets all over the United States, met with police officials and attorney generals, and developed a program — first piloted in Boston — that dramatically reduced youth homicide rates by as much as 66 percent. That program, nicknamed the "Boston Miracle," has been implemented in more than 70 cities nationwide.

Today, Kennedy directs the Center for Crime Prevention and Control at John Jay College of Criminal Justice in New York City, but he still regularly goes out into the field. The drug world he works in now, he says, is a little better than the one in which he worked in 1985 — but not by much.

"Still, it's almost inconceivably awful in almost all of its dimensions," he tells Fresh Air's Dave Davies. "And no one likes to say this stuff out loud, because it's impolitic, but the facts are the facts. You get this kind of drug activity and violence only in historically distressed, minority neighborhoods. And it is far worse in poor, distressed African-American neighborhoods."

Those neighborhoods are also more likely to be deadly for African-American men — and they're getting worse, says Kennedy, citing grim statistics: Between 2000 and 2007, the gun homicide rate for black men between the ages of 14-17 increased by 40 percent. The rate for men over the age of 25 increased by 27 percent. In some neighborhoods, 1 in 200 black men are murdered every year.

"This is where the worst open-air drug markets are all concentrated," he says. "And quite naturally, law enforcement pays an awful lot of attention to those neighborhoods. ... And the shorthand that you get from cops when you look at these communities is that they look at you and say, 'There is no community left.' "

But there are plenty of law-abiding residents in these neighborhoods that have been overtaken by drugs, says Kennedy. They outnumber the gang members and drug dealers by significant percentages.

Saturday, November 5, 2011

AG at Estimates: Charge Bargaining

General Purpose Standing Committee No 4 | Attorney General and Justice | 26 October 2011

The Hon. ADAM SEARLE: Minister, in March 2010 you indicated that a review of charge bargaining guidelines should be undertaken. In answer to question 445 in the Legislative Assembly, when you were asked whether you proposed to alter or review the guidelines for the Office of the Director of Public Prosecutions in relation to charge bargaining, you indicated no. Are you able to indicate what changed your mind in such a short time? 

Mr GREG SMITH: If I remember rightly, back in 2010 the proposed amendment to the Crimes (Sentencing Procedure) Act was requiring Crown prosecutors or persons who were representing the Crown on a plea of guilty to file a certificate with the court verifying that there had been consultation with the victims, but also that the agreed facts constituted a fair and accurate account of the objective criminality. The Crown prosecutors were up in arms about that and I was aware of that. It showed a lack of understanding by those proposing that. Often if a victim of crime does not want to give evidence, to get a statement of facts together that the perpetrator is prepared to plead to you often might have to remove the presence of a knife from the statement of facts, or something like that. 

Otherwise there is no plea of guilty, there is no trial—there is a no bill. But you get a result if you can get a plea to a lesser charge with perhaps less serious facts. But they were the provable facts. The original suggestion did not ask for the provable facts, it just asked that it constitute a fair account of the objective criminality. Therefore, the words "or have otherwise been settled in accordance with the applicable prosecution guidelines" were added. Putting the alternative solved the problem because the prosecution guidelines, as I understand them, allow for a summary of facts that represent what can be proved. 

The Hon. ADAM SEARLE: I think your indication in 2010 that the guidelines should be reviewed was in the context of your criticism of what you termed "plea bargaining". You were being critical that the Office of the Director of Public Prosecutions was engaging in plea bargaining in criminal matters. 

Mr GREG SMITH: I am sorry, but I do not understand that I ever criticised plea bargaining—or charge negotiation, as it is fashionably called at the Office of the Director of Public Prosecutions. 

The Hon. ADAM SEARLE: Charge bargaining. 

Mr GREG SMITH: Charge bargaining. I think I was just attacking this proposal to, as it were, remove some of the independence of Crown prosecutors proposed by the Government at that time. I was concerned that there had already been a fair bit of reduction of independence during that last term. 

The Hon. ADAM SEARLE: But do you recall calling for the guidelines to be reviewed in March 2010? 

Mr GREG SMITH: The guidelines are probably 200 or 300 pages long so I do not think I ever called for all of them to be reviewed. I think it was just this particular one about charge negotiation and it was a question of how far they had to go while naturally taking into account the views of the victim whose sensitivities must be always respected. But who is the victim sometimes and who represents the victim sometimes were issues that I do not think were being addressed properly. I heard that all they were going to do was make the Crown sign an undertaking that the facts were an objective summary of the evidence in the case, and that is what I wanted to change. I am happy with the compromise that was ultimately agreed to.

The Greens’ Threat to Religious Freedom

Greg Smith | Quadrant | October 2011

The most recent report by the United States Commission on International Religious Freedom paints a troubling picture. It describes the critical situation for millions of people who are suffering persecution, in many cases violent persecution, often sponsored by the state or governmental bodies in countries such as Burma, North Korea, Egypt, Eritrea, Iran, Iraq, Nigeria, Pakistan, China, Saudi Arabia, Sudan and Vietnam, among many others.

The situations in those countries remind me that I am blessed to live in Australia, which enjoys a high degree of religious freedom. That gratitude leads me to cherish the freedoms that we enjoy by ensuring that in an ever-changing society those freedoms are not diminished or lost. To borrow a phrase: “the price of freedom is eternal vigilance”.

Although adopting elements of other constitutions, the Australian Constitution retained the monarchy and Westminster parliamentary government from Britain. According to Justice McHugh in the High Court case of Australian Capital Television v Commonwealthin 1992: “the purpose of the Constitution was to further the institutions of representative government”.

In that sense, the Australian Constitution was overlaid onto an already existing tradition of legal jurisprudence which accepted the basic tenets of Westminster democracy. In the words of Justice Isaacs in 1926 in the case of Commonwealth v Kreglinger, the principle of responsible government: “is part of the fabric on which the written words of the Constitution are superimposed”. With that system came a series of principles and conventions which were unwritten but nevertheless fundamental to the operation of government and free society in Australia.

Viscount Bolingbroke, an eighteenth-century proponent of the principles of Westminster democracy, once said that the constitution is: “that assembly of laws, institutions and customs, derived from certain fixed principles of reason … that compose the general system, according to which the community has agreed to be governed”. That statement is particularly true of Australian constitutional law. The principles of representative and responsible government embodied in the Westminster system of government go well beyond the written words of the Constitution and embrace the laws, institutions, customs and principles which underpin it.

Fundamental to the principles of that system of government are the freedoms of speech, association, assembly, religion and movement, which can be traced back through the common law to the Magna Carta.

Therefore, with one main exception, the drafters of the Australian Constitution did not see it necessary to include a US-style bill of rights or other statement of principles guaranteeing the fundamental freedoms of those bound under it. Justice McHugh expressed this well in Australian Capital Television v Commonwealth:
Although the makers of the Constitution were much influenced by the terms and structure of the Constitution of the United States and “felt the full fascination of its plan”, they rejected the United States example of a Bill of Rights to protect the people of the Commonwealth against the abuse of governmental power. They did so because they believed in the efficacy of the two institutions which formed the basis of the Constitutions of Great Britain and the Australian colonies—representative government and responsible government.
The absence in the written document of the Australian Constitution of express rights such as those granted by the Bill of Rights under the US Constitution did not prevent the High Court in that case from finding a constitutional protection for freedom of communication. To the contrary, the system of representative government was the precise reason why such a right existed. In the words of Chief Justice Mason in that case: “Freedom of communication … is so indispensable to the efficacy of the system of representative government for which the Constitution makes provision that it is necessarily implied in the making of that provision.”

The essential point is that fundamental freedoms of speech, association, assembly, religion and movement are indispensable to and inseparable from a system of responsible and representative government and are thus intrinsically embodied in Australian constitutional law.

To this general principle of avoiding “bill of rights”-style guarantees, there is one main exception found in section 116 of the Constitution which provides:
The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

Vandals to clean own mess

Nino Bucci | The Age | 20 October 2011

IT STARTS with a can of spray paint and often ends behind bars.

But Frankston police are confident a new program will stop the first graffiti mark leading to a lengthy criminal history.

For the first time in Victoria, youths facing a criminal damage offence can have the charges dropped if they take part in a program that includes painting over daubed walls.

Frankston City Council spends almost $400,000 each year removing graffiti from about 30,000 square metres of property.

Senior Constable Renee Bloomfield, who developed the program as youth resource officer, said too often police dealt with offenders who started as teenage vandals before graduating to more serious crime. The program will be launched today and rolled out more widely if the pilot proves successful.

''The earlier the young person enters the criminal justice system the greater the likelihood they are going to remain embroiled within it,'' she said. ''If we can get a young person at 13 or 14 and put that intervention in place we can stop that cycle.''

Unfair bail laws used as punishment: magistrate

Geesche Jacobson | SMH | 26 October 2011

BAIL laws are too complex and suspects are often kept on remand as a ''form of pre-emptive punishment'' or granted bail only on ''draconian and ultimately pointless conditions'', the state's most senior magistrate has said.

The Chief Magistrate, Graeme Henson, said prosecutors had a ''culture that bail should be opposed'' and that the judiciary was often ''forced into a semblance of complicity'' in executing their agenda.

His comments are contained in a frank submission to the NSW Law Reform Commission's review of bail laws, which is expected to hand down its findings within weeks.

The review, a government election promise, was sparked by the large increase in the percentage of the state's inmates who have not been convicted of any crime but are in prison because they were refused bail.

It also follows a call last year by the Chief Judge of the District Court, Reg Blanch, for a review of bail laws.

Last June, a quarter of inmates - or 2624 people - were on remand, compared with 11 per cent in 1994.

Bail laws were progressively tightened under the previous government in what the submission by the Office of the Director of Public Prosecutions called ''ad hoc legislative responses in a get tough on law and order climate''.

Most submissions favour a relaxation and simplification of the laws to cut the number of people - up to 30 per cent - who are eventually acquitted after spending time in jail. The Attorney-General, Greg Smith, said last year it was only a lack of funds that stopped many of these people suing the state government.

Even the DPP and Corrective Services are critical of current laws and most submissions say accused people should be free unless they are a risk to the public or might fail to turn up in court.

Prison authorities have recommended a trial of ''e-bail'', or electronic monitoring of people on bail.

One contributor to the rise in the number of people on remand has been the introduction of a ''presumption against bail'' for certain offences.

This, says the submission by Legal Aid NSW, has equated the chances of getting bail of people breaking into the school tuckshop with those who have committed an armed home invasion.

These categories were ''illogical and difficult to apply'', said Mr Henson, who calls for the abolition of the presumption against bail based on offences.

He is also critical of the provision that restricts repeated bail applications, saying that it has had ''a disproportionate impact on defendants in positions of social disadvantage, such as the homeless''.

This year a homeless man had serious charges against him dropped after spending more than a year in prison, having been refused bail as he had no steady address.

Mr Henson is also critical of ''overly complex and onerous'' bail conditions, a submission mirrored by others. The Legal Aid submission opposes strict conditions, including curfew, for children and cites the example of ''Kristy'', who became homeless after constant police checks on her curfew disrupted her family and neighbours.

He also suggests a trial of ''pre-charge bail'', as used in Britain, which would allow police to release a person on bail, while deferring the decision to charge.

Tuesday, November 1, 2011

Women behaving badly

The Economist | 29 October 2010 

Calls to reform the sentencing of women are growing louder

AFTER a bad beginning, Fiona Flaherty has done well. Convicted of assaulting her partner in 2005, she was sent to Downview, a women’s prison in Surrey. There she studied for a BTEC in digital media, organised by a not-for-profit outfit, Media for Development (MfD), and helped run Britain’s first prison-based television station. In 2006 she was allowed out each day to work at MfD’s Inside Job Productions, which makes films. Released in 2007, Ms Flaherty found a job in the private sector, though her heart was in her mouth when she told her prospective boss, as she was legally bound to, that she had done time. Today, after having two daughters, she works for her husband as a software tester.

Ms Flaherty was lucky. For all the efforts of groups such as MfD, not to mention those of prison and probation staff, just 13% of women found employment on their release from prison in 2009. And that is only one of the problems they face. A third will have lost their homes; most will have been separated from children and may struggle to regain custody; many are still dealing with the drug habit or mental-health problems that about three-quarters went into clink with, or picked up inside. Women account for 5% of people in prison, but for 43% of the self-harming that happens behind bars.

Juliet Lyon of the Prison Reform Trust, a campaigning charity, scathingly points out that although at least six big inquiries over the past decade have made a strong case for reducing the imprisonment of women and finding alternatives to custody, the basic situation hasn’t changed. It is not that all the 4,200 women in English and Welsh prisons are angels or victims. But as a group women are different from the 95% of the prison population that penal policy is designed to hold securely.

Three-quarters of women are sentenced for non-violent offences (for men, the figure is lower); a big chunk are inside on remand, of whom most do not go on to receive a custodial sentence; perhaps three-quarters have been subjected to sexual or domestic violence. Most importantly, 60% of women in prison have children, only 5% of whom are able to stay in their homes when their mothers are put away.

There have been some improvements since an influential government-sponsored report in 2007. One is the growth of women’s community centres, part-funded (until next year at least) by central government, which offer sentencing alternatives, access to drug treatment and rehabilitation courses and try to divert women at risk of offending. But the number of women in prison has not dropped.

That could be set to change now, thanks in part to a sharper focus on the finances of locking people up. It costs over £55,000 a year to incarcerate a woman. As two-thirds of them are serving sentences of six months or less—too short a time to tackle addictions or mental-health problems—and two-thirds of these short-stayers will be reconvicted within a year, it seems money ill spent when intensive community sentences can be had for £10,000-15,000. New assessments of women’s centres suggest that many of them work. For example only 3% of women referred to the Anawim centre in Birmingham reoffend; only 7% breach their community sentences.

For some, the government’s new criminal-justice bill, to be debated by MPs from October 31st, offers a chance for reform. Jenny Chapman, Labour’s shadow minister for prisons, intends to introduce an amendment requiring the government to appoint someone to champion women in the criminal-justice system, and to report annually to Parliament. Others of her 2010 parliamentary intake who are interested in the matter include Claire Perry, a fast-rising Conservative MP, and Caroline Lucas, Parliament’s sole elected Green.

For both Ms Chapman and Ms Perry, payment by results (PBR) may be the key to success. The government has embraced PBR as a way to cut costs while improving outcomes: two such programmes, which reward private and third-sector outfits for reducing male reoffending rates, are running at Peterborough and Doncaster prisons. The justice ministry is interested in PBR schemes for women too, it says; some reformers would like to see them designed to encourage non-custodial sentences.

Wider pressure for some sort of change is growing. On October 18th the National Council of Women called on members to lobby their MPs. On October 25th the Howard League, a charity that advocates penal reform, launched an inquiry into how to keep vulnerable girls on the straight and narrow. With more immediate practical effect, perhaps, Pret a Manger, a fast-food chain, is now giving women offenders apprenticeships that lead to fully paid employment.

Let's admit it: most police work does not involve catching criminals

Robert Reiner | The Guardian | 28 October 2011

The view of policing as primarily concerned with catching criminals raises false expectations about tackling crime and neglects what people in practice demand from the police. Photograph: Stefan Rousseau/PA

The Bill got it right – what unites the bewildering miscellany of police jobs is the use of legitimate force

For decades, policy makers and criminologists have agonised over whether the police were fundamentally a force or a service. On one hand, research on what the police did, and on what the public called on the police to do, showed that much if not most of their work did not involve the use of their law enforcement powers. On the other, media representations and the culture of the police rank and file saw "real" police work as crime fighting.

Analytically, this conundrum was resolved by the theory formulated by the American sociologist Egon Bittner. The police officer was "Florence Nightingale in pursuit of Willie Sutton" (a legendary bank robber). What united the bewildering miscellany of police jobs, from riot control to letting in householders who'd lost their keys, was that they potentially required the use of legitimate force. The police were the domestic organisation in which was concentrated the Leviathan state's monopoly of legitimate force. They were "equipped, entitled and required to deal with every exigency in which force may have to be used". They were "the fire to fight fire", using tainted means to resolve emergencies when this was necessary. Or as a 1992 episode of The Bill put it: "Force is part of the service."

Policy debates about policing have changed fundamentally in the past 20 years. For once, the shift can be dated quite precisely. It was made explicit in the police reform white paper published in 1993. Section 2.2 stated: "The main job of the police is to catch criminals." The rub came in the very next sentence: "In a typical day, however, only about 18% of calls to the police are about crime."

The view of policing as primarily concerned with catching criminals is utterly misconceived. It raises false expectations about what the police can do about crime, condemns them to a quixotic quest beyond their capacity, and neglects what people in practice demand from the police. Its apparent obviousness derives largely from media representations, the main source of "information" about crime and policing for most people. Media stories (both news and fictional) focus overwhelmingly on successful police investigations of very serious violent crimes, especially murder, which form only a small part of the police workload. And the police are spectacularly less successful in clearing up crimes than media stories suggest: far fewer than 2% of crimes result in a conviction.

Why California prisoners press on with hunger strike

George Lavender | The Guardian | 17 October 2011

Solitary plea: California has a prison population of approximately 145,000 in 33 prisons; thousands recently went on hunger strike for the second time this year to protest solitary confinement conditions. Photograph: Lucy Nicholson/Reuters

Thousands are refusing food to protest for reform of prison authorities' abusive policy of solitary confinement

"No one wants to die," writes Mutope Duguma, imprisoned in Pelican Bay State Prison, Northern California. "Yet under this current system of what amounts to intense torture, what choice do we have? If one is to die, it will be on our own terms." Mutope was among thousands of prisoners on hunger strike across the state to protest conditions in California prisons. Prisoners at Pelican Bay ended their hunger strike last week, after prison officials agreed to review their policies. The strike continues in other prisons.

Nearly 12,000 prisoners began the hunger strike two weeks ago, according to prison officials. Among them were prisoners from California incarcerated out of state in Arizona, Mississippi and Oklahoma who joined the strike in a powerful act of solidarity. According to Todd Ashker, a hunger strike representative in Pelican Bay Security Housing Unit, or SHU, an important aspect of the protests has been that prisoners have united across racial lines. "When people come together and recognise who the real enemy is, who is really the cause of all their problems, they have a lot of power," he says. Prisoners have five core demands, key among which are the abolition of long-term solitary confinement and the reform of the controversial policy of confining prisoners deemed to be gang members.

Protests started with a three-week hunger strike in July at Pelican Bay SHU, where more than 1,000 people are currently detained. They have called themselves "the buried class". The controversial units are used to "lock down" people in long-term solitary confinement, for years and sometimes decades. California is now holding more inmates in solitary confinement than ever before; approximately 3,238 people are detained in these units across the state. Inside SHU, prisoners are caged for at least 22 hours a day in 8x10ft, windowless cells and have no human contact except when guards put shackles on them. In 1995, a US court held that conditions in SHU "may press the outer bounds of what humans may psychologically tolerate". "There's a notion with many people that the worst of the worst are put in Pelican Bay," says Manuel La Fontaine, an organiser with All of Us or None, "but I've got news for people: the worst of the worst is Pelican Bay."

Isolation is state-sanctioned torture. Harvard psychiatrist Stuart Grassian, an expert on the effects of solitary confinement has said, "in some ways, it feels to me ludicrous that we have these debates about capital punishment when what happens in Pelican Bay is a form of punishment that's far more egregious." Pelican Bay is hundreds of miles from home for most people inside the prison, further isolating them from their families, friends and communities. Among the demands of the hunger strike is to be allowed to make a phone call home and send a photo of themselves to their loved ones once a year. That the authorities deny them these rights is indicative of a system that damages not just the person inside prison, but their communities as well.

One of the main reasons prisoners get sent to the units is because prison officials label them as members of a "gang"; this is part of a wider strategy to dehumanise and criminalise members of our communities. The only way to be released from SHU is if a prisoner agrees to give information, or "debrief", about other prisoners or people outside prison, including their own family. Many prisoners are "validated" as gang members with evidence that is clearly false, or fabricated by other prisoners in order to leave SHU themselves. As a SHU prisoner writes, "The only way out is to debrief, die or parole. They want to break us. If this is not torture, I don't know what is." According to figures released by prison officials in August this year, some 500 prisoners in Pelican Bay had spent more than 10 years in SHU confinement and 78 more than 20 years.

Reasonable Cause conference: papers

On 15-16 September 2011 a group of criminal lawyers gathered in Sydney to hear speakers at the inaugural "Reasonable Cause" conference.

Born from an idea by barrister Mark Dennis, the creator of, the conference was the first of its kind: participants paid a registration fee the equivalent of a regular CLE conference but each speaker gave their time for free, and profits were donated to the Cambodian orphanages run by Geraldine Cox.

A group of old and new heads were fortunate to hear from Geraldine herself, and be inspired by the work she does for some of the poorest and most vulnerable children of Cambodia, as well as from top shelf speakers including Peter Hidden, Robert A. Hulme and John Nicholson from the Bench, and Warwick Hunt, Graham Turnbull and Phil Strickland from the Bar.

Papers are available at The highlights for me were two papers: the first by Phil Strickland on the topic of memory and the eyewitness in criminal trials; and the second by Judge John Nicholson, who provided a very strong critique of the "modern" sentencing regime, and the assumptions which underpin it.