Sunday, November 25, 2012

Bail law reforms to go ahead

The Sunday Telegraph | November 25 2012

ATTORNEY General Greg Smith will stick to his plans to reform bail laws despite police opposition, saying only those likely to abscond, re-offend or hurt someone will be put in jail and the rest will walk free.

Mr Smith believes bail laws are too complex and so tough they "almost made bail an alternative form of imprisonment". Critics fear changes will give criminals a "get out of jail free" card.

In June, the Law Reform Commission suggested presumptions for or against bail depending on offence should be scrapped and the accused should be released unless they are a risk of absconding, reoffending or harming someone.

It was concerned that too many people, particularly young and indigenous, are in jail even though they have not been convicted of a crime.

Mr Smith told The Sunday Telegraph that the government's response to the review, expected this week, would be "sympathetic" to the report.

"That will be the test. If the court is satisfied that any of those things might happen, they will be bail refused. Otherwise they will be bail granted.

"The act and the ultimate act will draw much from the learning that went into the review. It won't strictly stick to many of the recommendations but it will be sympathetic to some of the principles espoused in the review."

He said there would be announcements on specific presumptions, but would not be drawn further.

Police Commissioner Andrew Scipione is opposed to the changes, saying the current laws work well, as is the Police Association, which warns that watering down bail conditions would endanger the community.

Premier Barry O'Farrell has pledged cabinet would not weaken bail laws.

Smith denied suggestion colleagues have been hostile about the changes, saying they have given him "magnificent" support. "The report will be a reasoned report and it will be a unanimous view of the cabinet and the government."

But the Police Association warns that change to the bail laws would give criminals a get out of jail free card.

"Tough bail laws are pivotal to a safe community and we are hopeful that the government will not move towards weakening these protections which are designed to keep criminals behind bars, he said.

"The recommendations made by the Law Reform Commission would put the community at risk if they were implemented."

"Bail laws should help make our society safer. Any watering down of community protections by allowing persons accused of serious and violent crimes to be released on bail would be out of touch with community expectations."

The Law Society NSW supports reforms to the bail laws. "We were very pleased with the report," said President Justin Dowd.

Tuesday, September 11, 2012

The Right to Silence Takes a Beating in NSW

Adam Fletcher | Castan Centre for Human Rights Law Blog | September 10, 2012

Earlier this month, the NSW Government announced that it is going to restrict criminal suspects’ right to silence to ‘tilt the scales of justice towards common sense.’ A Bill will be introduced by October to amend the Evidence Act 1995 (NSW) “to allow juries and the judiciary to draw an adverse inference against an alleged criminal who refuses to speak to investigating police, but later produces ‘evidence’ at trial in a bid to be found not guilty.”

The press release went on to say: “Attorney General Greg Smith said the right to silence was an important legal principle but it was too easily exploited…. The proposed change reflects reforms made in Britain and Wales in 1994, and will apply to serious indictable offences.”

However, there are at least two important differences between the criminal law system in Britain/Wales and that of NSW:

  • in England, Wales and Northern Ireland, the Government provides duty solicitorsat major police lock-ups to ensure procedure is followed and a suspect’s other rights are respected.

Apart from Singapore (which incidentally doesn’t provide similar guarantees of legal representation) and Ireland, Britain and Wales are the only other common law jurisdictions to have diluted the right to silence in this way (although changes are being contemplated in Scotland).

Perhaps the principal similarity is the political context – at least one person involved in the UK shift in 1994 claims that it was about politics and the police demonstrating they were ‘in charge’ of the criminal justice process, and went against the recommendations of experts.

According to the NSW Law Reform Commission, in the jurisdictions which have changed their legislation, courts and juries are “specifically permitted to draw strong adverse inferences from evidence that the accused person did not provide certain information to police when asked to do so.”

Is this really something we want for Australian law?

The privilege against self-incrimination was developed at common law hundreds of years ago, although its modern form (protecting the defendant before trial) is more recent. In simple terms, it evolved as a mechanism to prevent investigators from beating confessions out of people, rather than building a case by gathering evidence properly. To ensure the integrity of the right, courts and juries were also instructed not to hold it against a defendant if he or she refused to talk to the police. Cases in recent years have already watered down this ‘no adverse inference to be drawn’ rule a bit for serious crimes, while preserving the essence of the right.

Why would NSW propose to ‘tighten’ the law now? After a spate of serious gun crime in Sydney, the Police are arguing that alleged criminals are ‘obfuscating’ and exploiting the system, and that the right to silence is giving them the ‘tactical upper hand.’ Needless to say, it does not look good for ‘crims’ to have such an advantage, so it was determined that something must be done.

The right not to be compelled to confess a crime is a fundamental component of the right to a fair trial under article 14 of the International Covenant on Civil and Political Rights (ICCPR – see 14(3)(g) in particular). It is also a safeguard against torture and cruel, inhuman and degrading treatment (‘ill‑treatment’) or punishment (prohibited by article 7), which are commonly inflicted for the very purpose of eliciting admissions of guilt.

It is true that section 84 of the Evidence Act 1995 (NSW) makes evidence obtained by unsavoury means inadmissible, but there is also the question of the presumption of innocence (another long‑standing common law right which is reflected in article 14(2) of the ICCPR). This presumption means it is for the State to prove the guilt of a suspect, and to compel the suspect’s cooperation in this endeavour is to undermine the very notion of a fair trial.

The privilege against self-incrimination in article 14(3)(g) of the ICCPR is closely linked to the prohibition of ill-treatment and the presumption of innocence, which are fundamental rights. As such, any limitation on this privilege should be approached with abundant caution. In addition, the delicate balancing act required when limiting rights which go to the heart of our justice system is best undertaken by the courts, not the Executive. As I mentioned, there are Australian cases (including Parkes v R in 1976 and R v Alexander in 1994) which have already made carefully-considered modifications to the rule that silence under questioning may not be held against a suspect, which further weakens the rationale for statutory amendment.

In the UK, the Human Rights Act 1998 incorporates the fair trial guarantees in article 6 of the European Convention on Human Rights into domestic law, giving suspects an added measure of protection (in this case, guaranteed access to a lawyer). In NSW (as in most Australian jurisdictions), our equivalent international obligations (under article 14 of the ICCPR) have not been similarly incorporated into domestic law. This leaves Governments free to strip away important rights in response to the political pressures of the day (especially undesirable if they are ‘temporary aberrations’). Even with the guaranteed access to a lawyer in the UK, the UN Human Rights Committeeobserved in 2001:

Although the Committee appreciates the recent prohibition on drawing negative inferences from a suspect’s silence while his or her lawyer is absent, the Committee remains troubled by the principle that juries may draw negative inferences from the silence of accused persons.

The State party should reconsider, with a view to repealing it, this aspect of criminal procedure, in order to ensure compliance with the rights guaranteed under article 14 of the Covenant.

Professor David Dixon, now Dean of Law at UNSW, is an expert on law relating to policing and is against the proposed changes to the Evidence Act 1995. He notes that two Royal Commissions, in addition to plenty of academic research, recommended against the UK’s 1994 changes. The NSW Law Reform Commission published acomprehensive report on the right to silence in 2000 which supported his stance and specifically recommended against going down the same path as the UK. It noted there are already sensible exceptions in the case of drivers’ licences and alibis. Dixon also warns that, in light of UK and international jurisprudence, “if NSW changes its law and an appeal goes to the High Court, the Court is likely to find that using silence against a person who did not have legal advice denies them the right to a fair trial.” Would the Government then provide free legal advice to all who are to be questioned by the Police…?

Others with extensive experience in the criminal justice system here in Australia also remind us that “[p]eople lie for all sorts of reasons other than guilt. The right to silence protects the accused from being overwhelmed by the apparatus of the state.” Its abrogation can effectively shift the burden of proof to the accused, who often struggle to explain their innocence.

In making it an offence to refuse to answer questions from agencies such as the various Crime Commissions and ASIO (not to mention restricting rather than increasing the involvement of lawyers), Australian Governments have already placed serious limitations on the privilege against self-incrimination. It is time to stand up to the erosion of this important human right.

Dobbing mothers unite for drug reform

Lisa Pryor | SMH | 11 September 2012

Parenthood has made Lisa Pryor more certain our drug laws need to be reformed. When a child gets in trouble with drugs, help is a lot more effective than a criminal record.

"Surely having children of your own has made you think twice about decriminalising drugs?" This is a question I get asked a lot, as someone who advocates for drug law reform while being the mother of two young munchkins.

The implication is that your views should change once you become an upstanding and responsible parent whose drug of choice is caffeine, and whose social life revolves around rhyme time at the local library. As if parenthood should soften you with regard to your own flesh and blood, while hardening you towards the rest of the world, especially towards illicit drug users.

My answer to this question is "no, quite the opposite". Having responsibility for young children who will one day be young adults has made me more certain that our drug laws must be reformed and I'd like to explain why.

As a parent I would love to see Australia adopt the model of decriminalisation which has been working so well in Portugal for more than 10 years now.

Let me tell you a little bit about how it works. In July 2001 Portugal abolished all criminal penalties for using and possessing small quantities of drugs. When the police catch someone with a zip lock bag of pills or powder folded in tin foil, there are still consequences. The drug user may be required to attend a "dissuasion tribunal" where the seriousness of their habit is assessed. If the tribunal finds the person before them is an addict, they can then be referred to rehabilitation. And that's another key thing about the reforms in Portugal. They improved funding for drug treatment and made it more accessible.

What I love most about this model is that it empowers families to work with the authorities if a child gets into serious trouble with drugs, confident that they would be given help rather than a criminal record.

In other words the Portuguese system appeals to me as a dobbing mum. If a young person in my life was abusing drugs, I would feel confident working with the police to get help. This is exactly the opposite of what I would do with the system as it stands in Australia. I would never recommend a parent dob a child with a drug problem into the police as it is likely to make matters worse.

Australian parents are in a terrible bind if they feel a child is developing an addiction to illicit drugs. They may want to intervene, but most know that dobbing a child into the police is not the answer. Motivating a pot head teen to go out and get a job will be even harder if that teen has a criminal record which means they will be rejected out of hand by many employers. As for young adults who try to escape emotional difficulties by taking too many drugs, they will be haunted by even greater troubles if they are forced to spend time in prison with its accompanying traumas.

The Portuguese model is one of the alternatives to prohibition – along with the systems operating in Switzerland and the Netherlands – which is canvassed in an Australia21 report which was released on Sunday.

The report explains some of the improvements Portugal has enjoyed as a result of their bold reforms. Problematic drug use has decreased. There are fewer overdoses. Fewer injecting drug users are contracting HIV. Drug related crime has dropped too.

For these reasons and many more, parents like me support decriminalisation. This is not contradictory, nor is it new. A black and white photograph, reproduced on the back of the Australia21 report, shows just how long mothers have been fighting against prohibition. Taken in the United States in 1932, the photograph shows mothers and children campaigning against alcohol prohibition. In earnest uniforms they stand beside a car painted in slogans: "Protect our youth", "stamp out prohibition", "save our children".

The campaign to end alcohol prohibition was supported by mothers because they felt that when the trade in alcohol was pushed underground, it made it easier for young people to access alcohol. Legal saloons risked having their licences revoked if they served alcohol to the underage. But the illegal speakeasies which came with prohibition had no such qualms about underage drinking.

Alcohol prohibition was repealed the year after this photograph was taken. It is time for parents to speak out again.

Wednesday, September 5, 2012

Neighbour can't cop jolly whistle

Gayle Bryant | Heckler | SMH | 5 September 2012

A FRIEND of mine was threatened with an AVO on the weekend. Now, what image has just come into your head? Some violent, uncontrollable loser who lets his fists do the talking? Some drunken yobbo? Try a gentle, non-aggressive man whose only crime is whistling.

No, my fingers didn't slip on the keyboard. I didn't mean to write that my friend enjoys ''wrestling'', or ''wrecking things'', or ''whacking people''. My friend likes to whistle. Not constantly. Just occasionally, when he feels good about the world and has a spring in his step.

On Saturday, however, he was amazed to find that not one, but three police had appeared on his doorstep to tell him his neighbour had complained about this habit. Apparently, my friend was told, his neighbour often hears him whistling as he walks up the path separating their two homes - and this is not OK. My friend was told he can whistle in his own home, but he must not whistle as he walks past his neighbour's front door.

Illustration: Simon Letch

Of all the noises that can be emitted by the body, I would have thought whistling is the least offensive. But now you can be threatened with an AVO if you purse and blow? What next? AVOs for burpers, farters or stomach grumblers?

Aren't AVOs served when someone is in fear for their safety? How does whistling fit into this category? It demeans their very purpose.

My friend has no intention of changing his behaviour. He told the police that he would see his neighbour in court before he stopped whistling. The fact that three police were sent to pass on the message only added fuel to the fire. Especially, as he pointed out to them, no police had yet responded to his calls to the same station about a stolen bike. I'm guessing a stolen bike hardly raises an eyebrow.

But the novelty of a whistling complaint clearly had the police scrambling for the squad car. They had probably never been called to serve an AVO against a whistler and weren't sure how the perpetrator would react. Perhaps they thought he'd launch an assault on their eardrums by whistling at extreme volume or deliberately off-key. Maybe they thought all the local dogs would come running, resulting in chaos.

Are we becoming so obsessed about being in control of the sounds we want to hear that those we can't control are cause for a complaint to the police? Come on Sydney, why not purse those lips and whistle down the street just as Mark Twain writes in Tom Sawyer, ''with a mouth full of harmony and a soul full of gratitude''.

Monday, August 27, 2012

Background Briefing: "The big binge"

Di Martin | ABC Radio National | 26 August 2012

More pubs and more bars, open for more hours, more extreme binge drinking, more extreme violence and more hospital admissions! What is being done to stem the alcohol tide? Di Martin investigates.

Listen to the program here

Monday, August 20, 2012

730 New South Wales investigates changes to the Right to Silence

ABC 730 | 19 August 2012

See Quentin Dempster's piece "O'Farrell Government overhauls 'right to silence'" here, including O'Farrell's announcement, and interviews with Phillip Boulten SC and Evan Whitton.

And then see Dempster's interview with Attorney-General Greg Smith here.

Smith says the modification will not apply to certain categories of accused, or to people who have not had access to legal advice. He says duty lawyers will not be provided to Police stations, but does hint at a phone advice service being made available.

Sunday, August 19, 2012

Shouting out our right to silence

Charles Waterstreet | Sun Herald | 19 August 2012


Unlike the silent French film The Artist - with its worldwide success this year, including many Academy Awards - the French legal system does not recognise the right to silence for suspects. The accused in France are required to give an account of their activities to an investigating magistrate.

In NSW, we are the beneficiaries of the presumption of innocence until the state proves guilt beyond a reasonable doubt. We are the beneficiaries of basic legal and human rights, the very rights our grandfathers and fathers and brothers fought for in Europe in two wars and against incredible odds in New Guinea, and even in the tragic wars in Vietnam, Afghanistan and Iraq, to ensure.

The right to silence is not some antiquated form of prayer. It protects the accused from the strong-arm tactics of the state when people are at their most vulnerable. Life, human nature, guilt and innocence are a million shades of grey; they are neurotic, stupid, illogical, panicky, bloody, messy, full of white lies, embarrassing, complex, prone to error, prickly and incessant. In the wake of complex human intercourse and events, we are likely to say things in the heat of a roadside accident, in the hot, clinical, white police interview room, that don't reflect real emotions, memories and motives but might be said to please in ignorance, in shame, in panic, or in terror.

Police are trained interrogators with more knowledge about what happened than you know or think. They use it in the way expert card players save their aces for last. They can herd you in a barn and then shut the gate. In the atmosphere of criminal trials, it is extraordinarily difficult for the most innocent of people to explain why they gave a false or misleading account of events in recorded testimony at a police station after they have been arrested. Juries have collective wisdom but not necessarily the breadth of knowledge that jurists retain from bitter experience.

People lie for all kinds of reasons other than guilt. The right to silence protects the accused from being overwhelmed by the apparatus of the state. It is a powerful right. It might rarely lead to the guilty being acquitted but it is a bastion against the innocent being convicted on issues that really do not go to the heart of the question of guilt or innocence.

Look at the recent appearance of a talented, respected Supreme Court judge giving an account of his kerbside drinking in the early morning. We all want to underestimate our darker shades of grey and lighten the load.

The Premier, Barry O'Farrell, descended into the tabloid by explaining the English change to the right of silence by drawing on The Bill: ''Why, you have heard it in Sun Hill police station.'' Please, let's not use Saturday night British television shows to persuade this state that the removal of the right to silence is in keeping with a police-procedural television show.

American television series show cops ''Mirandising'' suspects. It is really a suburb in the Shire, but the US Supreme Court's Miranda rights represent the high moral and human right to say nothing until you speak to your lawyer, that you have a right to an eloquent silence in the face of a serious enforcement officer, and to acknowledge the basic right that the state must prove your guilt, not you.

Every parent knows that if you ask an errant child where he was in the afternoon, the child will mumble a deflecting lie or deception. Maturity does not erase human nature; in fact, it makes it more serious and its consequences more disastrous. Any suspect may choose to tell any police freely, after proper advice, after catching his emotional breath. The impact of a video interview played to a jury containing an error, mistake or fumble, mumble or flat-out mistruth on one issue - not the issue of guilt or innocence - is almost impossible to erase. The jury must be brought back to first principles of human nature. The effective cross-examination by a prosecutor of these misstatements can unbalance a trial. It shifts the burden of proof to the accused. Trials become unfocused and unfair. The accused might not always explain innocence, as Lindy Chamberlain in the witness box proved, and Gordon Wood in the glare of the television interview.

The right to silence is not a residue from ancient English criminal practice, in which the accused would never speak at their own trial. It is the living, breathing, beating heart of our bundle of human rights that we have fought so hard to maintain.

At Sun Hill police station, the police by and large play by the rules. Our rights should not be compared and contrasted with television shows, but to the template of dignity and decency that civilisation has accumulated by the collected wisdom of trials and errors, and the tools built to reduce and repair injustices of past experience. Accused people are already required to give notice of any alibi well before the trial. What's next? Will suspects be required to solve crimes for the police?

This particular Bill needs a little more thought

Heath Aston | Sun Herald  | 19 August 2012

IN ANNOUNCING the watering down of the right to silence, Barry O'Farrell was at pains to emphasise the new law for suspected criminals was merely bringing NSW into line with Britain.

The Premier was so keen to play up the British angle that he all but began whistling the theme song to The Bill during the announcement last week.

No one would have been surprised if the actor who played PC Reg Hollis had been wheeled in to audition the police's new arrest line: ''You are not obliged to say or do anything … but it may harm your defence if you do not mention when questioned something you later rely on in court.''

What wasn't mentioned by O'Farrell, the Police Minister, Mike Gallacher, and the Attorney-General, Greg Smith, on Tuesday was that the planned new law would also bring NSW into line with another country: Singapore.

Yes, that well-known bastion of personal freedoms and unobtrusive government, Singapore.

Should we expect mandatory sentences for chewing gum and spitting in NSW next?

Why should NSW arrest laws be out of step with every other state in Australia but in line with Britain anyway?

This is the same country whose major city was in flames a little more than a year ago during the looting revolution by London's underclass. Sure, London put on a good Olympic Games, but is that a good reason to try to harmonise our legal systems?

In return for a limited right to silence, those arrested in Britain are granted free legal advice, with duty solicitors provided at the major lock-ups. In NSW, there is no prospect that this costly service will be provided to offset the ''toughening'' of the law.

The planned reform smells suspiciously like a politician's thought bubble. No one in the wider legal community - apart from the police and the Police Association - appears to have been consulted before its unveiling.

If they had, they might have pointed the government to the 2000 report by the Law Reform Commission, which found most accused did not remain silent under questioning anyway and there was little justification to dilute the right to silence.

In some jury trials, the accused's silence under questioning contributed to an acquittal, but that did not apply to the majority of cases.

Often it's a temporary tactic, advised by a lawyer, to force police to disclose further information about the allegations and possible charges they intend to lay.

In other words, the tension between the accused's rights and the police's right to get to the truth was just about spot on.

It seems a strange thing to say of a premier who calls a review into what he will have on his sandwich at lunch, but some more consideration was needed on this one.

Friday, August 17, 2012

On the right to silence, all the rhetoric is deafening

David Dixon | SMH | 16 August 2012

Premier Barry O'Farrell's announcement of plans to restrict the right to silence in NSW has set off another rhetorical joust between civil libertarians and critics of this ''right''.

While one side complains about the loss of liberty, the other claims change is necessary because organised criminals exploit the justice process. But both ignore key empirical and legal realities.

Much has been made of the fact that England introduced this change in 1994. However, it should be understood the change was the result of a sustained police campaign that was about politics, not about the reality of criminal investigation.

The right to silence had become a symbolic issue in determining who controlled criminal justice. Its restriction went against the recommendations of two royal commissions and a mass of empirical research (some of it by me).

This research showed that the supposed link between silence and organised criminals was exaggerated, with police sceptical about the effect of the 1994 law on such criminals.

It also showed that real police interviews are unlike those seen in Law and Order and The Bill, in which suspects either refuse to answer questions or skilful police interviewers shift them from denial to confession. In reality, most suspects confess immediately or maintain their denial, whatever tactics police use.

Where is the evidence that a change to the right to silence is necessary?

There has been very little research conducted in Australia. However, in 2006 I conducted a study of every recorded interview across NSW for an entire year, which found a situation very similar to that in England.

The fact is, people tend not to use the right to silence: it's hard not to answer questions and it's usually against your interest to refuse to do so. If police have significant evidence against you, it's best to co-operate.

In my research, the notable cases of failure to answer questions involved young, alienated men who refused to co-operate with police as a mark of honour, even though there was plenty of evidence against them. Their confessions weren't needed, and changing the laws of evidence wouldn't have changed their behaviour.

Best practice in criminal investigation would require police to interview suspects on the basis of evidence rather than relying on a confession. The problems of the latter approach - police malpractice and miscarriages of justice - are well known from a series of high-profile cases in England, Australia and the US.

English police interviewing techniques have substantially changed since the 1990s: they increasingly rely on evidence collected before interview. Australian police are adopting the English approach.

If our police need more resources and/or powers to use phone tap and intercept evidence, DNA and CCTV, in order to provide the evidence needed before interviewing suspects, that's a separate, and equally controversial, debate. We need to talk about how criminal investigation can and should be conducted, not spend time on exchanges of rhetoric about the right to silence. If Premier O'Farrell gets his way, it is likely to have consequences that his government won't welcome. The European Court of Human Rights has ruled that silence can be used as evidence against defendants only if they had received legal advice before being questioned: how otherwise is a lay person to know what might harm their defence in court if they don't mention it to police?

So if NSW changes its law and an appeal goes to the High Court, the Court is likely to find that using silence against a person who did not have legal advice denies them the right to a fair trial.

This means restricting the right to silence has a major and very expensive corollary: the government would have to fund free access to legal advice and organise duty solicitors to be on hand in police stations.

England has done so since the mid-1980s. In the latest research in England, 48 per cent of suspects interviewed in police custody had legal advice. By contrast, almost nobody does in NSW, because there is no public funding or organised system (except for juveniles and indigenous people).

Providing publicly-funded legal advice would be massively expensive, yet it is an inevitable consequence of restricting the right to silence.

The O'Farrell government needs to be very careful what it wishes for.

Professor David Dixon is Dean of Law at UNSW. His books Law in Policing and Interrogating Images report empirical research on police questioning of suspects in England and NSW.

Uruguay ponders making government legal pot dealer

Pablo Fernandez | Associated Press | 9 August 2012


A plan by Uruguay's leaders to turn the government into the nation's marijuana dealer has been presented to Congress, where the idea faces an uncertain fate.

President Jose Mujica's entire Cabinet signed onto the proposed law, which aims to take over an illegal marijuana trafficking business estimated to be worth $30 million to $40 million a year.

The law would have government control marijuana imports, production, sale and distribution, creating a legal market for people to get pot without turning to riskier illegal drugs. The text submitted to Congress on Wednesday declares that the drug war is a failure and that marijuana is only mildly addictive, unlike "cocaine, alcohol, tobacco and psychotropic drugs."

But lawmakers are divided on the idea, even within Mujica's Broad Front coalition of leftist parties and social groups.

Mujica has said he'll push the plan only if it gets at least 60 percent support in polls. An official in the president's press office, speaking on condition of anonymity according to department policy, said the bill isn't expected to advance quickly.

The text says the project's goals include "the normalization and full social acceptance of marijuana use" so that consumers aren't "stigmatized, nor treated as criminals." Instead, it proposes education about the risks of marijuana use. The presidency's website said Thursday that a National Drug Council would organize meetings to "facilitate reflection" on this point.

The text sent to Congress added that "marijuana has been for many years the most-consumed illegal substance" in Uruguay, and "has an important level of legitimacy in Uruguayan society." It also cited precedents for various levels of decriminalization of marijuana possession in the Netherlands, Australia, Spain and several U.S. states.

Bank to make a killing by cutting crime

AP | August 04, 2012

GOLDMAN Sachs will invest almost $US10 million ($9.5m) in a New York City jail program that will allow the investment firm to profit if it can reduce recidivism rates.

The move makes New York the first US city to test "social impact bonds" that enlist private entities to help save governments money over the long term.

Inmates aged 16 to 18 will receive education, training and counselling intended to reduce the likelihood of reoffending after their release.

"New York City is continually seeking innovative new ways to tackle the most entrenched problems, and helping young people who land in jail stay out of trouble when they return home is one of the most difficult - and important - challenges we face," Mayor Michael Bloomberg said.

"As the first city in the nation to launch a social impact bond, we are taking our efforts to new levels and we are eager to see the outcome of this initiative."

City officials said Goldman would provide a $US9.6m loan to pay for the program at the Rikers Island jail complex.

If recidivism drops by 10 per cent, the firm will get back the $US9.6m. If it drops even more, Goldman could make as much as $US2.1m in profit. If recidivism doesn't drop by at least 10 per cent, Goldman will lose as much as $US2.4m.

Nearly half of the adolescents who leave city jails return within one year. Social impact bonds were first used in Britain and are being explored in Australia and elsewhere in the US.

NSW Bikie Laws Will Catch Innocents

Kirk McKenzie | New Matilda | 15 August 2012

Barry O'Farrell's consorting laws have already caught one young disabled man, but their scope is wide enough to nab anybody. Repeal these unjust laws, writes Kirk McKenzie

The recent jailing for consorting of Charlie Foster, a young intellectually disabled man, highlights the rank injustice of the O’Farrell government’s new consorting laws. A NSW District Court Judge yesterday set aside Foster’s conviction after finding the elements of the offence not proved, but the matter is not over — the police are still to pursue the matter.

These new laws (sections 93X and 93Y of the State’s Crimes Act) reinstate notoriously bad laws which applied from the late 1920s until 1979 when they were deliberately watered down by the Wran Labor government. They have rarely been used since.

According to Greg Smith, Barry O’Farrell’s Attorney General, the new laws are aimed at bikies. However, the legislation is not so restricted and will inevitably catch many entirely innocent people.

So what precisely is wrong with these laws? They penalise people just for associating with people previously convicted of "indictable offences" — a category not restricted to serious offences.

The legislation says that if you communicate, say by sending a text message, to two convicted offenders on two occasions, you may receive an oral warning from a police officer. If after the warning, you send a further text message to one of the two offenders, you may be charged with "habitual consorting", punishable by up to 3 years imprisonment!

This offence involves at least three clear breaches of Australia’s human rights obligations under the main international human rights treaty, the International Covenant on Civil and Political Rights ("ICCPR"). Australia ratified this treaty in 1980 (under a Liberal National government) with the result that all Australian parliaments have since had an obligation to adhere to its terms, including Article 22 which requires the principle of freedom of association to be respected.

The new offence is amazingly wide. "Indictable offences" are those serious enough to go before a judge and jury. However, most indictable offences are dealt with in the Magistrates Courts and many such offences are quite minor. For example, Common Assault, Shoplifting and Obstructing a Police Officer are indictable offences in NSW (and elsewhere).

A further problem is that there is no automatic defence to the new charge. Even a spouse, parent or a child of a previous offender can be charged. There is (in section 93X) a qualified defence for family members, doctors, teachers, employers and lawyers but significantly, any person in those categories can still be arrested, charged and brought before a Court and then has the onus of proving that their association with the person concerned was "reasonable in the circumstances". This ridiculous provision reverses the onus of proof — even entirely innocent spouses, parents or children are caught. A lawyer could be charged and have to go to Court to prove the reasonableness of acting for the person concerned.

Lawyers who regularly act for convicted persons, may be warned to cease acting for a client, if, for example 40 years ago that client was convicted of shoplifting. If the lawyer ignores the warning, a charge may follow. This amounts to an unjustified interference with the workings of independent courts and, for that reason, the offence is arguably unconstitutional. It also breaches Article 14(3) of the ICCPR by limiting defendants’ rights to communicate with, and to be assisted by, lawyers of their own choosing.

The reversal of the onus of proof imposed on families, doctors and lawyers involves a third breach of international law, namely the abrogation of the presumption of innocence in Article 14(2) of the ICCPR, also a fundamental principle of Australian criminal law. Under this principle, the prosecution is required to prove all elements of a criminal offence beyond a reasonable doubt. It is not the accused’s role to have to prove their innocence, yet that is precisely what a spouse, teacher or doctor (or mother!) may have to do, to avoid conviction. The right to silence also goes out the window.

A bizarre consequence of section 93X is that priests, ministers of religion and other clergy are completely unprotected. They have no defence at all, not even the right to come to Court to prove their association reasonable. Many others such as social workers, trade union members and officials and even fellow members of sporting or social clubs, fall into the same category.

A further important objection is the arbitrary power these laws deliver into the hands of police officers. Bikies have already been charged under these new provisions and say they will appeal any convictions to the High Court. They may end up being seen as heroes as a result. However, it may be the people of Moree, Walgett and other NSW regions where Indigenous Australians live and work, who may be the most vulnerable. Some of these regions have higher crime rates and Aboriginal people are therefore much more susceptible to arbitrary police action than elsewhere.

There is a wider problem with this sort of law making. Unfortunately, because of the mainstream media’s obsession with federal politics, a lot of legislation is quickly waved through state parliaments without sufficient scrutiny. The Bill introducing these changes went through with only minor media comment and little public debate.

In NSW, with no Charter of Rights, many politicians neither know nor understand what rights they should be protecting. The NSW Parliament should replicate the Victorian Charter of Human Rights and Responsibilities which is based on the ICCPR. That treaty contains the universal, minimalist position of the world democratic community on civil rights and has been ratified by 167 countries. The Victorian Charter is now supported by the Baillieu Coalition government and there is little logic in Barry O’Farrell’s continued opposition to such a reform.

One thing is certain — until this dopey, repressive, unjust, outrageous piece of legislation is repealed, more Charlie Fosters will be lined up for punishment.

Wednesday, August 8, 2012

Texas view of executing mentally ill based on fiction

Lisa Falkenberg | The Houston Chronicle | 7 August 2012

At 54, Marvin Wilson can't use a telephone book. He reads and writes on a first- or second-grade level. Those who know the Southeast Texas man say he can't match socks, he doesn't understand what a bank account is for, he's been known to fasten his belt to the point of nearly cutting off his circulation. The day his son was born, one sister recalled, he reverted to the familiar habit of sucking his thumb.

His IQ, according to the most valid indicator of human intelligence, is 61, below the first percentile. This was one of many clinical tests and factors that led a neuropsychologist with decades of experience to diagnose Wilson with "mild mental retardation."

Nevertheless, at 6 p.m. Tuesday night, the state of Texas, in your name and mine, is scheduled to kill Marvin Wilson by lethal injection. The U.S. Supreme Court - citing the Eighth Amendment prohibition against cruel and unusual punishment - banned the execution of the mentally retarded a decade ago.

But like other federal mandates, Texas has found a way around this one, too.

The U.S. Supreme Court, in a 2002 decision in a case called Atkins, exempted all mentally ill offenders from execution, in part because those who struggle with impulse control, for example, are less culpable for their crimes. But also because mentally ill offenders may be especially vulnerable to wrongful convictions since they're less able to help attorneys build strong defenses.

Wilson is a textbook example. According to his attorneys' brief, Wilson was fingered as the lead shooter by a more sophisticated accomplice, and evidence of his "confession" in the murder of police informant Jerry Williams came from the accomplice's wife.

In Atkins, the high court held that the states, many of which had begun to ban executions of the mentally retarded on their own, had reached a national consensus that the practice was immoral.

Steinbeck's Lennie

Of course, certain conservative factions in Texas, as usual, fell somewhere outside those evolving standards of decency. The Supreme Court left it up to the states to design procedures to implement the ban, but the state with the most active death chamber took that as an invitation to redefine the ban itself.

In a 2004 opinion, Texas' highest court announced that, where executions were concerned, it didn't have to define "mental retardation" the same way as other states. It didn't even have to define it the same way it does for impaired Texas school children.

No, the fine jurists of Texas' Court of Criminal Appeals made up a new definition of "mentally retarded" especially for defendants in capital crimes. It wasn't based on science or the generally accepted definition of the American Association on Intellectual and Developmental Disabilities. It was based on myths, stereotypes and even a fictional character: Lennie in Steinbeck's "Of Mice and Men."

Forget the national consensus. The Texas court was concerned only with the Texas consensus, "the level and degree of mental retardation" that Texans would agree should be exempted from the death penalty.

"Most Texas citizens might agree that Steinbeck's Lennie should, by virtue of his lack of reasoning ability and adaptive skills, be exempt," the court said. But someone else who didn't meet that stereotypical description and merely had a clinical diagnosis to prove his mental retardation? Well, that's a different story.

The court then set about redefining what it means to be mentally retarded in a capital case. The "Briseno factors" are a list of questions fact-finders should ask in criminal cases to determine whether a defendant is mentally retarded enough to be spared. The goal, of course, is to spare as few as possible.

The factors include such subjective and unscientific questions as whether a defendant can plan and lie. (My toddler is capable of both when there's a cookie within reach.) Another question asks whether family and friends in the defendant's life "think he was mentally retarded." Never mind that mental retardation can be genetic and family members themselves may be impaired. The seventh, and most problematic factor invites the fact-finder to look at how the crime was perpetrated, which introduces emotion into a process that should be solely based on reason.

Wilson's last hope

The 5th U.S. Circuit Court of Appeals has found the lower court's interpretation reasonable. TheTexas Legislature has failed to address the issue after Gov. Rick Perry vetoed an earlier ban on such executions passed by lawmakers.

Wilson's last hope is for the U.S. Supreme Court to step in on Tuesday and grant a stay of execution so that the high court can consider his case along with another similar Texas case pending before it.

Once again we need the nation's highest court to save us from ourselves. To remind us of our humanity. To impose on us the cruel confines of decency.

Wednesday, June 20, 2012

On Lindy Chamberlain: Chester Porter QC and John Bryson

Last week, the Northern Territory Coroner finally found that Azaria Chamberlain in fact was taken by a dingo near Uluru some 30 years ago.

But how and why was Lindy Chamberlain ever charged and convicted for murdering her own child?

These questions took me back to the observations of Chester Porter QC, counsel assisting the Morling Royal Commission into Chamberlain convictions, who was interviewed by Richard Fidler on Conversations back in 2007:

Chester Porter is one of Australia's best known barristers, whose nickname at the bar was 'the smiling funnel-web' thanks to his legendary courtesy and forensic charm. He has often spoken out against wrongful convictions and brought to light all the forensic evidence blunders in the Lindy Chamberlain case. His new book is called The Conviction of the Innocent.

Chester also has concerns about the way witnesses and experts are judged on the stand. "There was a Court of Appeal decision [and] by two to one, the judges held that the demeanor of the expert witness could be used to judge whether the expert evidence was correct. Quite apart from experts, to judge any witness by demeanour is very risky."

He also believes a count case can be unfairly manipulated by underhand tactics. "If you appeal to the racial prejudices. If, perchance, you were appearing in court, and the chief witness against your client was an Aboriginal, to see if you could find anything the jury hated about Aboriginals and throw that around, that would be grossly unfair, and improper."

Criminal trials can be enormously stressful for the accused - a fact Chester believes it's important to bear in mind. "Very frequently the accused has to go into the witness box and in most cases, there's a person under enormous strain. It would be a most abnormal person who wasn't almost trembling with fear when they go in the witness box as an accused person."

Listen to the interview here.

Another very close to this subject, and who offers some answer to these questions, is the author of "Evil Angels", John Bryson. He was last Sunday interviewed by Jonathan Green on RN Sunday Extra:

A dingo took my baby. It's taken 32 years, but finally we accept the truth of what happened to Azaria Chamberlain on the night of August 17 1980. The fourth coronial inquest into the death of nine-week-old Azaria concluded last week, at last giving Azaria's parents Lindy and Michael some sort of finality and a death certificate bearing that elusive world 'dingo'. John Bryson, author of Evil Angels, has spent decades poring over the Azaria Chamberlain case, and speaks to us today about the hysteria and controversy the case has inspired.

Listen to the interview here.

Monday, June 18, 2012

Not even the state's top cop was immune from culture of surveillance

Neil Mercer | SMH | June 17, 2012

On the eve of the Sydney Olympics undercover police were watching many senior officers, including Peter Ryan.

It was Christmas, 1999, and NSW police commissioner Peter Ryan was winding down after a hectic year. With his then wife, Adrienne, he was enjoying a few drinks after work at the Marriott Hotel, a short walk from police headquarters in College Street in the city.

Unbeknown to Ryan, he and his wife were under surveillance. Not by the dark forces of organised crime, but one of his own officers, an undercover cop known as ''Joe'' who was working for Special Crime and Internal Affairs, commonly known as SCIA.

SCIA's job? To root out corruption. It was supposed to operate to the highest ethical standards.

The surveillance of the state's top cop had been ordered by the then head of SCIA, assistant commissioner Mal Brammer, who believed the Ryans, under the influence of alcohol, might be loose-lipped about confidential police affairs.

Any way you look at it, it was extraordinary. But it was not the first time SCIA, under Brammer, had been involved in highly questionable surveillance of some of the force's most senior ranks.

Earlier that year, Joe and his partner ''Jessie'' - another undercover, or ''UC'' as they are known in the trade - had spent weeks trying to gather dirt on assistant commissioner Clive Small, then head of crime agencies and in charge of squads such as homicide, armed robbery, sexual assault and fraud.

The jailed murderer and notorious crime figure Neddy Smith had alleged Small had formed an improper relationship with a Sydney organised crime figure and well-known drug trafficker, Michael Hurley, and that they were meeting at the Woolwich Pier Hotel in Hunters Hill.

The surveillance ran from January 22 until March 12, 1999.

It turned up three parts of, well, nothing, because neither Small nor Hurley ever appeared at the pub. As Joe and Jessie later remarked, at least the food was good. Small was never even interviewed about the allegation.

Just weeks before they started watching Small, Jessie had been tasked by her superior in SCIA with watching another officer, Detective Inspector Deborah Wallace, who at that time was working for SCIA. That operation ran from May 5 to December16, 1998, and involved Jessie joining the same gym as Inspector Wallace.

Like the surveillance of the Ryans and Small, it turned up nothing. There was simply no evidence that any of them had done anything improper.

As Jessie later remarked: ''It was ridiculous. She [Wallace] was just there to do aerobics.'' Despite it lasting seven months, senior SCIA officers later said they could not recall Jessie being told to watch Wallace.

We know of these three SCIA surveillance operations, from May 1998 to early 2000, because the two undercover police involved, Joe and Jessie, later told their story to Clive Small, the man they had been told was meeting Hurley at the Woolwich Pier.

Small, now retired, and his co-author Tom Gilling revealed the extraordinary saga in their book Betrayed, published in 2010.

Remarkably, the assertion that an ''out of control'' SCIA under Brammer had put its own commissioner, among others, under surveillance did not garner any publicity in the media.

Nor was there any reaction from NSW Police headquarters or the Police Integrity Commission, which is supposed to take a keen interest in allegations of wrongdoing and improper conduct.

But all these years later, those operations have become relevant because of an aspect of another controversial SCIA investigation that did hit the headlines.

It was called Operation Florida and it started in early 1999.

Plantations, Prisons and Profits

Charles M. Blow | The New York Times | May 25, 2012

“Louisiana is the world’s prison capital. The state imprisons more of its people, per head, than any of its U.S. counterparts. First among Americans means first in the world. Louisiana’s incarceration rate is nearly triple Iran’s, seven times China’s and 10 times Germany’s.”

That paragraph opens a devastating eight-part series published this month by The Times-Picayune of New Orleans about how the state’s largely private prison system profits from high incarceration rates and tough sentencing, and how many with the power to curtail the system actually have a financial incentive to perpetuate it.

The picture that emerges is one of convicts as chattel and a legal system essentially based on human commodification.

First, some facts from the series:

• One in 86 Louisiana adults is in the prison system, which is nearly double the national average.

• More than 50 percent of Louisiana’s inmates are in local prisons, which is more than any other state. The next highest state is Kentucky at 33 percent. The national average is 5 percent.

• Louisiana leads the nation in the percentage of its prisoners serving life without parole.

• Louisiana spends less on local inmates than any other state.

• Nearly two-thirds of Louisiana’s prisoners are nonviolent offenders. The national average is less than half.

In the early 1990s, the state was under a federal court order to reduce overcrowding, but instead of releasing prisoners or loosening sentencing guidelines, the state incentivized the building of private prisons. But, in what the newspaper called “a uniquely Louisiana twist,” most of the prison entrepreneurs were actually rural sheriffs. They saw a way to make a profit and did.

It also was a chance to employ local people, especially failed farmers forced into bankruptcy court by a severe drop in the crop prices.

But in order for the local prisons to remain profitable, the beds, which one prison operator in the series distastefully refers to as “honey holes,” must remain full. That means that on almost a daily basis, local prison officials are on the phones bartering for prisoners with overcrowded jails in the big cities.

It also means that criminal sentences must remain stiff, which the sheriff’s association has supported. This has meant that Louisiana has some of the stiffest sentencing guidelines in the country. Writing bad checks in Louisiana can earn you up to 10 years in prison. In California, by comparison, jail time would be no more than a year.

There is another problem with this unsavory system: prisoners who wind up in these local for-profit jails, where many of the inmates are short-timers, get fewer rehabilitative services than those in state institutions, where many of the prisoners are lifers. That is because the per-diem per prisoner in local prisons is half that of state prisons.

In short, the system is completely backward.

Lifers at state prisons can learn to be welders, plumbers or auto mechanics — trades many will never practice as free men — while prisoners housed in local prisons, and are certain to be released, gain no skills and leave jail with nothing more than “$10 and a bus ticket.”

These ex-convicts, with almost no rehabilitation and little prospect for supporting themselves, return to the already-struggling communities that were rendered that way in part because so many men are being extracted on such a massive scale. There the cycle of crime often begins again, with innocent people caught in the middle and impressionable young eyes looking on.

According to The Times-Picayune: “In five years, about half of the state’s ex-convicts end up behind bars again.”

This suits the prison operators just fine. They need them to come back to the “honey holes.”

Furthermore, the more money the state spends on incarceration, the less it can spend on preventive measures like education. (According to Education Week’s State Report Cards, Louisiana was one of three states and the District of Columbia to receive an F for K-12 achievement in 2012, and, this year, the state, over all, is facing a $220 million deficit in its $25 billion budget.)

Louisiana is the starkest, most glaring example of how our prison policies have failed. It showcases how private prisons do not serve the public interest and how the mass incarceration as a form of job creation is an abomination of justice and civility and creates a long-term crisis by trying to create a short-term solution.

As the paper put it: “A prison system that leased its convicts as plantation labor in the 1800s has come full circle and is again a nexus for profit.”

Friday, June 8, 2012

On drugs

Andrew Elder | Politically Homeless | 7 June 2012

The series of articles on drug laws and the need for reform in The Sydney Morning Herald has been positive, arising from the Australia21 report on the issue. The SMH have much to show their News Ltd colleagues about fostering a debate rather than running a campaign. While it's telling that so many major figures have come out against prohibition, with Mick Palmer not the least of them, this has been a debate that's been part of our lives more broadly. Drug law reform can't and shouldn't succeed until its scope is broadened; it is a shame that both Australia21, and the SMH, have overlooked that.

There's more to the drug debate than just prohibition vs decriminalisation. You can see that in the debates going on elsewhere that both Australia21 and the SMH has rigorously quarantined from its coverage of drug law reform. Perhaps they have done this in an attempt to bring clarity to what everyone agrees is a complex issue. I disagree that it will be effective or desirable in either securing drug decriminalisation, or in mapping out what might or should happen once drugs that are now illicit become legalised.

People want drug addiction to be seen as a public health issue. Let's do that, and in so doing let's look at a public health campaign that has been hard-fought and almost won, and which is not at all unrelated to the debate on other drugs: tobacco.

The first thing to remember is that tobacco is a more serious health problem for Australians, in themselves and in terms of costs to taxpayers and the economy more broadly, than illicit drugs. The cost of prohibition should take account of the averted costs of its alternative, rather than simply being written off as some sort of dead loss.

The second is that, just as the tobacco industry faces the prospect of sinking to its knees under the weight of plain packaging, it faces the prospect that decriminalisation will not just throw it a lifeline but open a cornucopia of commercial opportunities. All of those charges levelled at tobacco and alcohol companies about marketing to minors will come back with a vengeance when tobacco growers get a licence to grow cannabis, and when smaller companies that form part of the tobacco distribution network see the opportunities in now-illicit drugs as compensation over the government's war against tobacco. Big companies will sneak their special-treatments in with the smaller ones, and government will give them. Those hoping for additional funds to be spent on healthcare can only watch the money flow away from them as "incentives" for those who have waged war on public health campaigns.

You may think that your local neighbourhood drug dealer sidling up to the kids after school with a collection of little baggies is A Threat To Our Children, if not to Our Way Of Life. Wait until the perfectly legal, expensive and sophisticated marketing campaigns hit full stride. Look at the success that junk food has had over a younger generation, and imagine how successful similar campaigns for illicit drugs would be. Now contrast that against the odd junkie scuttling into the shadows for their hit in terms of the length and breadth of a real social problem, and ask yourself whether you are really making things better.

Saturday, May 19, 2012

Prisoner welfare group will close without continued Government assistance

Kirrin McKechnie | 730 Queensland | 18 May 2012

Sister Inside confirms Townsville programme forced to shut down.

Watch the video here

JESSICA van VONDEREN: Last year, the prisoners support service Sisters Inside set up an outreach programme at the Townsville jail, with the help of a 120-thousand dollar grant from the then Bligh Government. Already this year, that service has helped 188 female prisoners break the cycle of crime. But now, the Newman Government has withdrawn the funding. The Communities Minister says Sisters Inside can try to reapply for money under the proper processes. But the group's founder says the cut will be catastrophic for the mainly indigenous prisoners who benefited from the service, and for the wider community. Kirrin McKechnie reports.

RENEE, FORMER PRISONER: I just went straight from the pot to the heroin. I didn't touch anything else. And then that's why I went downhill. I didn't want to rely on anyone, didn't want to rob anyone, so that's why I became a prostitute.

KIRRIN McKECHNIE: It's been a tough, rough road for this 33-year-old mother of two. But she's starting afresh: moving into a new home, and looking forward to what lies ahead for the first time in a long time.

RENEE: Once I got the job and saw what a happy life everyone was leading, I went on a boat for the first time. I remember. And I just had so much fun. And going to the beach and just doing normal things that I'd never done before. And it was wonderful.

KIRRIN McKECHNIE: Renee doesn't want to give her last name, because she's afraid her dark past could catch up with her. Yet despite her fears, she wants to speak out to help the support service that she says saved her life.

RENEE: I cannot think of a better way to give back than by doing this. So, they helped me I'll help them.

KIRRIN McKECHNIE: Renee was on her second of three stretches in jail for drugs and prostitution related crimes when she was contacted by Sisters Inside, a support service for women in prison. It was their constant contact and support that made her determined to get off heroin and get off the game.

RENEE: A nice lady called Jackie, she came up to see me every week, spoke to me every week. And then she picked me up from the jail and we went and got a bond loan and I got a house and I got a job and I've been clean ever since.

KIRRIN McKECHNIE: Renee's story is by no means unique. Every year Sisters Inside helps hundreds of women like her break the cycle of crime and poverty. But now, its Townsville outreach service is under threat, with the Newman Government pulling its $120,000 funding.

DEBBIE KILROY, SISTERS INSIDE: I'll have to travel to Townsville and tell those women that it's over. We can't provide the services anymore and I find that distressing and I'm sorry. Cause I have to say I don't know how I'm going to walk away from the women. My life passion is about walking with and assisting women to move forward and do well and not go back to prison not commit crimes, not use drugs anymore raise their children, be healthy functioning families so they're ok. But I'm going to have to go up there and say sorry we can't do anything anymore.

Obama’s new free speech threat

Glenn Greenwald | | May 16 2012

An Executive order seeks to punish U.S. citizens even for "indirectly" obstructing dictatorial rule in Yemen

(updated below – Update II)

There is substantial opposition in both Yemen and the West to the new U.S.-backed Yemeni President, Abed Rabbo Mansour Hadi. Hadi was the long-time Vice President of the Yemeni dictator Ali Abdullah Saleh, and after Saleh finally stepped down last year, Hadi became President as part of an “election” in which he was the only candidate (that little fact did not prevent Hillary Clinton from congratulating Yemen “on today’s successful presidential election” (successful because the U.S. liked the undemocratic outcome)). As it does with most U.S.-compliant dictators in the region, the Obama administration has since been propping up Hadi with large amounts of money and military assistance, but it is now taking a much more extreme step to ensure he remains entrenched in power — a step that threatens not only basic liberties in Yemen but in the U.S. as well:
President Obama plans to issue an executive order Wednesday giving the Treasury Department authority to freeze the U.S.-based assets of anyone who “obstructs” implementation of the administration-backed political transition in Yemen.
The unusual order, which administration officials said alsotargets U.S. citizens who engage in activity deemed to threaten Yemen’s security or political stability, is the first issued for Yemen that does not directly relate to counterterrorism.
Unlike similar measures authorizing terrorist designations and sanctions, the new order does not include a list of names or organizations already determined to be in violation. Instead, one official said, it is designed as a “deterrent” to “make clear to those who are even thinking of spoiling the transition” to think again. . . .
The order provides criteria to take action against people who the Treasury secretary, in consultation with the secretary of state, determines have “engaged in acts that directly or indirectly threaten the peace, security or stability of Yemen, such as acts that obstruct the implementation of the Nov. 23, 2011, agreement between the Government of Yemen and those in opposition to it, which provides for a peaceful transition of power . . . or that obstruct the political process in Yemen.”
In other words, the U.S. Government will now punish anyone who is determined — in the sole discretion of the U.S. Government — even to “indirectly” obstruct the full transition of power to President Hadi. But what if someone — a Yemeni or an American — opposes Hadi’s rule and wants to agitate for a real election in which more than one candidate runs? Is that pure political advocacy, as it appears, now prohibited by the U.S. Government, punishable by serious sanctions, on the ground that it “obstructs” the transition of power to Hadi? Can journalists who report on corruption or violence by the Hadi regime and who write Op-Eds demanding a new election be accused, as it seems, of “threatening Yemen’s political stability”?

The NYPD's criminal stop-and-frisk record

Darius Charney | The Guardian |  15 May 2012 

A march earlier this month against the NYPD's stop-and-frisk policy, led by community leaders and Princeton University professor and activist Cornel West. Photograph: Scott Houston/Corbis

The police department's policy amounts to racial profiling and the illegal harassment of thousands of New Yorkers a day.

Last week, the New York Police Department released quarterly data on its stop-and-frisk program. The numbers are worse than ever, and they confirm everything that is wrong with this practice.

From January through March 2012, 203,500 New Yorkers were stopped and frisked. That's an average of 2,200 people per day. Twenty-two hundred people a day, many of whom are stopped for no reason – or the wrong reason, like the color of their skin, or their age, or their gender expression – patted down, sometimes roughed-up, intimidated, asked for ID in their own neighborhood, sometimes in their own buildings, asked to empty their pockets. Twenty-two hundred people a day stopped by police as they walk down the street on their way home, to school, the corner deli, or to see friends. Twenty-two hundred people a day asked to justify their presence in the city in which they live.

This is already an outrage; but if you look further at the numbers, it's even more outrageous. Despite years of public outcry and lawsuits, theNYPD is stopping even more people than in previous years. In 2011, the department stopped a record 685,724 New Yorkers, a 600% increase since Raymond Kelly took over as police commissioner in 2002. But the 2012 numbers are on track to be still worse. At the rate it's going, the NYPD will stop nearly three-quarters of a million New Yorkers in 2012.

Eight-seven per cent of the people stopped by the NYPD in the first quarter of 2012 were black or Latino, while only 54% of the city's population is black or Latino. Despite claims to the contrary, the data show that even when you take other factors into consideration – including crime rates –stops are disproportionately concentrated in black and Latino neighborhoods. And in all neighborhoods, blacks and Latinos are significantly more likely to be stopped than whites. The data also show that NYPD officers use physical force more often when stopping blacks and Latinos.

Stop-and-frisk, as practiced by the NYPD, amounts to racial profiling, which is illegal. It violates the 14th amendment of the US constitution, which prohibits racial discrimination, and the fourth amendment, which protects against unreasonable searches and seizures.

Stop-and-frisk also fails to make New Yorkers safer. There is an implied trade-off that New Yorkers are told to accept: OK, so the practice is intrusive and humiliating and it violates your rights, but it's necessary to fight crime. That is a lie. The vast majority of stop-and-frisks – 90%, in the first quarter of 2012 – do not uncover evidence of a crime. Less than 1% lead to recovery of guns, the supposed goal of the stop-and-frisk program.

The NYPD is not catching criminals; they are stopping and humiliating thousands of New Yorkers a day who have done nothing wrong.

There is no evidence that stop-and-frisk is responsible for the city's drop in crime rate in recent years. On the contrary, New Yorkers feel less safe and often have their lives upended by unlawful stops. Many communities, especially communities of color, feel that they are under siege. To them, the presence of police on the streets signals not protection against crime, but a danger of becoming the victims of a crime: being illegally stopped, harassed, possibly beat up.

The Center for Constitutional Rights is suing New York City to end these gross violations of hundreds, or thousands, of people's rights. Occupying entire neighborhoods and treating vast portions of the city's citizenry as suspects violates the US constitution and fundamental human rights.

Teacher fired over pregnancy can sue religious school

Terry Baynes | Reuters | May 16 2012

An appeals court on Wednesday revived a Florida teacher's lawsuit against a Christian school that fired her after she admitted to conceiving a child before her marriage.

Overturning a lower court ruling in the school's favor, the U.S. Court of Appeals for the 11th Circuit found that Jarretta Hamilton was entitled to a trial on her claims of pregnancy discrimination by the Southland Christian School in St. Cloud, Florida.

The fourth-grade teacher informed administrators in April 2009 that she was pregnant and needed to take maternity leave. During the conversation, she admitted that she had conceived the child three weeks before her February wedding.

The school fired her a week later. Administrator John Ennis explained that "there are consequences for disobeying the word of God," according to the court opinion.

Hamilton sued the school in 2010 under a federal law that bars discrimination based on pregnancy, seeking compensation for lost wages and emotional distress.

A federal district court ruled in the school's favor before a trial, finding that Hamilton failed to establish that she was fired for her pregnancy rather than moral concerns over her premarital sex.

The three-judge appeals panel disagreed.

The Atlanta-based court pointed to evidence that the school may have been more concerned about Hamilton's request for leave than about her admission to having premarital sex.

Ennis expressed concern over finding a replacement teacher, Hamilton testified.

"Hamilton has established a genuine issue of material fact about the reason that Southland fired her. The ultimate issue is one for a jury to decide," Judge Edward Carnes wrote for the unanimous panel, sending the case back to the lower court for a trial.

David Gibbs, a lawyer for Southland Christian School, said in a statement that he would vigorously defend the school's religious rights before the district court. Edward Gay, who represented Hamilton, was not immediately available for comment.

Monday, May 14, 2012

Public opinion and sentencing reform

Stephen Whitehead | nef | 14 May 2012

New research reveals a public that is more open to reform than those who claim to speak for them.

The prospect of a new crime and justice bill, heralded by last week’s Queen’s speech, is likely to re-awaken debate around the coalition’s sentencing policy. While its latest proposals around community sentences are still at the consultation stage, the bill is another step in the coalition’s programme of cutting costs and increasing transparency in the justice system.

The community punishment reforms in the consultation, and those in this week’s speech, are much more cautious however, than those that Ken Clarke had in mind when he took office in 2010. The much vaunted rehabilitation revolution has crumbled under heavy fire, most of it from his own side. Tabloids and Tory back-benchers lambasted his plans as soft on crime and out-of-touch with public opinion.

One of the key attacks was made by Tory peer, former deputy party chairman and part-time citizen of Belize Lord Ashcroft. In a 2011 pamphlet entitled Crime, Punishment and the People Ashcroft argued that increased use of community sentences ‘command woefully little support’ amongst the public. A stark opinion poll outlined the public’s verdict – 81% thought that sentencing was too lenient, while only 3% thought it too harsh.

The argument, then, was clear: the British public demand tougher sentences and to ignore them was both politically inept and undemocratic. But a more sophisticated investigation of public opinion casts doubt on this analysis. Researchers from Oxford University and London’s Institute of Crime Policy Research investigated the way in which the public made their judgements about sentencing. They found that when asked to consider a range of mitigating circumstances, respondents would often consider a community sentence even for a crime which in the real world would almost always result in custody. When given the hypothetical case of a person convicted of a serious assault, 69% of respondents thought a community penalty would be appropriate if it was a first offense, 65% if the offender was caring for small children, and 64% if the offender was remorseful and apologised.

While the hangers and floggers in parliament or Fleet Street may whip up a storm about any proposal which seeks to reverse or even slow the unsustainable increase in our prison population, this research suggests that the public are more open to reform than those who claim to speak for them. The obstacle for reformers then, is not one of public sentiment but rather of bandwidth. If they can overcome the myths around crime and sentencing and engage the public in a serious debate about who really needs to be in prison, they may find more traction than they expect.

Public discussion enters the age of the uninformed

Jonathan Green | The Drum | 10 May 2012

Can somebody tell me what happened? Can someone explain how in the space of just a decade our public discussion has been hijacked by the ignorant and the bigoted and their boosters in the mass media?

And there's a more important question, how did the once authoritative political class let it happen?

You may or may not have watched Four Corners on Monday: a gripping report that recalled the High Court's Mabo finding in 1992 and Paul Keating's subsequent political quest to put legislation round the court's repudiation of terra nullius and enshrining of native title. The history of our Commonwealth has had few more significant - or challenging - turning points.

Like all documentaries of this type, the Four Corners report did more than simply shed light on its central subject. There was much else to see besides, little snippets that also illuminated the political and media culture of the time. This exchange between Paul Keating and a talkback caller on John Laws' 2UE morning program in 1993 was stunning, an absolute show stopper.

Caller: Good morning.

John Laws: Okay, the Prime Minister is here.

Caller: Yes, good morning. Just a very broad question, Mr Keating, is: why does your government see the Aboriginal people as a much more equal people than the average white Australian?

Paul Keating: We don't. We see them as equal.

Caller: Well, you might say that, but all the indications are that you don't.

Paul Keating: But what's implied in your question is that you don't; you think that non-Aboriginal Australians, there ought to be discrimination in their favour against blacks.

Caller: Not... whatsoever. I... I don't say that at all. But my... myself and every person I talk to - and I'm not racist - but every person I talk to...

Paul Keating: But that's what they all say, don't they? They put these questions - they always say, "I'm not racist, but, you know, I don't believe that Aboriginal Australians ought to have a basis in equality with non-Aboriginal Australians. Well, of course, that's part of the problem.

Caller: Aren't they more equal than us at the moment, with the preferences they get?

Paul Keating: More equal? They were... I mean, it's not for me to be giving you a history lesson - they were largely dispossessed of the land they held.

Caller: There's a question over that. I think a lot of people will tell you that. You're telling us one thing...

Paul Keating: Well, if you're sitting on the title of any block of land in NSW, you can bet an Aboriginal person at some stage was dispossessed of it.

Caller: You know that for sure, do you?

Paul Keating: Of course we know it for sure!

Caller: Yeah, [inaudible].

Paul Keating: You're challenging the High Court decision, are you? You're saying the High Court got this all wrong.

Caller: No, I'm not saying that at all! I wouldn't know who was on the High Court.

Paul Keating: Well, why don't you sign off, if you don't know anything about it and you're not interested. Good bye!

Caller: Yeah, well, that's your ...

Paul Keating: No, I mean, you can't challenge these things and then say, "I don't know about them".

John Laws: Oh well, he's gone.

It really sets you back in your chair. From a contemporary perspective this seems an extraordinary act of political courage, of reckless honesty. A politician on talkback radio telling someone with no real knowledge of the issue beyond a gut feel that it rankles their deepest prejudices, that they are not entitled, under those terms, to enter the discussion.

You just know that today, the caller would be indulged; their opinion flattered with undue attention. So it is that today we see a political discussion that rather than excluding or marginalising the voices of the uninformed, angry and blindly polemical, is in fact conditioned, directed and dominated by them.

Look at our endless to and fro over asylum seekers... a debate in which the national government happily sets aside its obligations under international law and convention, never mind any reasonable notion of what is moral, in order to placate a vocal core of constituents whose shallow xenophobia and nebulous economic anxieties are amplified by talk back radio and the tabloids of TV and print.

Same for climate change. Five years ago we had something near to a national consensus based on unambiguous science, a consensus cynically talked down often through shorthand distortions and misrepresentations pitched at the uninformed.

Today few politicians dare confront these tides or take a stand against it. The tail has wagged the dog.

Where Paul Keating thought nothing of speaking his mind, Julia Gillard sits in the same studio as Alan Jones, is called a liar to her face and brushes off the insult. This is not an audience the modern politician dare offend and the result is to diminish the authority of our leaders. Team it with the reflex anxiety over every nuance of polling and we end up with a discussion that is easily mired in misconception and the darker sub currents of the national psyche.

To be reminded of Keating's boldness and certainty is to recall that we have lost more than his trademark arrogant pugnaciousness in the intervening decade. We've also lost political leadership, surrendering it to belligerent ignorance at high volume. You get the feeling that the modern politician, seeing that Keating talkback video would be schooled: "see that's the arrogance that cost him''. And that's cost us.

Jonathan Green hosts Sunday Extra on Radio National and is the former editor of The Drum. View his full profile here.

Jails' new advocate

Heath Aston | Sun Herald | May 13, 2012

Prison officers will be able to air their grievances to an independent body without fear of retribution in one of the biggest shake-ups of the NSW jail system.

An inspector of prisons will be appointed in tandem with a new Corrective Services Commissioner, The Sun-Herald can reveal. The new position will be announced by the state government today, just weeks after it showed long-time Commissioner Ron Woodham the door.

The inspector of custodial services will work with Mr Woodham's replacement, but will only answer to Parliament and the Attorney-General, Greg Smith.

Representatives of the state's 3800 prison officers welcomed the creation of the inspectorate but warned the inspector must be allowed to ''implement reform, not just spruik it''.

Mr Smith said the inspector would be a champion for prisons and prisons officers. ''He or she will go into bat for anyone who feels the system can be improved, and anyone who provides information will be protected,'' he said.

''The new position will build public confidence in the justice system and ensure that correctional facilities are safe, secure and operate to a high standard. Prison officers will also be able to air their concerns without fear of being harassed or having their careers prejudiced as a result of assisting an inspector.''

Government sources said the creation of an independent inspector was a direct strike at the opaque structure of the present prison system under the leadership of Mr Woodham, the ''old school'' chief who rose from prison warden to commissioner to hold the top job for the past decade.

Mr Smith was frustrated at being stonewalled when seeking information last year over the death in Grafton jail of Ian Klum, a 52-year-old locked up for traffic offences. Surveillance footage showed prison officers looking on as Mr Klum crawled between cells before later dying of a brain haemorrhage.

Mr Woodham's replacement is expected to be in place by July 1.

The inspector will deal with all complaints from wardens and visitors while prisoners will still take their complaints to the ombudsman.

The position will be legislated in the Inspector of Custodial Services Bill 2012, to be introduced to Parliament shortly.

The inspector, who will be appointed to a five-year term - and can only be reappointed once - is likely to be drawn from the ranks of the judiciary. The independent statutory body led by the inspector will have jurisdiction over all correctional centres, including juvenile institutions, residential facilities, transitional centres and court and police cells managed by Corrective Services or Juvenile Justice.

The position will be modelled on an independent inspector in Western Australia. A similar position exists in systems in England, Scotland and Wales.

Police chief pushes for bottle shop clampdown

Sean Nicholls | SMH | May 14, 2012

Domestic violence is the "iceberg" of excessive drinking ... NSW Police Comissioner Andrew Scipione. Photo: Jacky Ghossein

THE Police Commissioner, Andrew Scipione, has questioned the lack of regulation of purchases from bottle shops and linked the easy availability of take-away alcohol to stubbornly high rates of domestic violence.

The issue will be examined, at Mr Scipione's request, by a new alcohol policy working group comprising senior police and bureaucrats who will present options to the state government.

The Herald can reveal that the group, formed this year, is conducting a comprehensive review of the alcohol licensing system in response to an offer by the Premier, Barry O'Farrell, last year to give police whatever support they needed to tackle alcohol-related violence.

The group will also examine the concentration of outlets, which it believes is a critical issue for alcohol policy.

In an interview about measures the police are taking to combat alcohol-related violence, Mr Scipione said the numbers of alcohol-related assaults of a non-domestic nature had been falling significantly for the past few years.

''The bit that is not falling as much is the domestic violence, where alcohol is a factor. That's the frightening bit,'' he said.

''Of course, that's predominantly being fed through takeaway bottle shops. I think it's worth looking at the impact and, necessarily, the sort of policy we might need to develop to inform government in this area.''

NSW Bureau of Crime Statistics and Research data shows that between 2007 and 2011, the average annual rate of alcohol-related domestic violence fell 2.6 per cent, compared with a 5.3 per cent drop in other alcohol-related assaults.

Mr Scipione said the visible effects of excessive drinking on weekends and at big events were the tip of the issue but domestic violence was emerging as the ''iceberg'' of alcohol policy.

''That's what worries me - when there are incentives given to people to come in and fill up the car [with alcohol but] if you wanted to buy it over the bar you would have severe restrictions,'' Mr Scipione said.

''In this situation you can go and fill the car up and as quickly as you can throw it down your throat you can come back the next day and fill it up again.

''There is no responsibility in this and by its nature there's not, because it's something that's done in private. But what we do know is that it's causing enormous damage, particularly to women and children.''

The commissioner quoted a national poll conducted for the Alcohol Education and Rehabilitation Foundation, published last month, which showed 69 per cent of adults supported a ban on alcohol advertising on television before 8.30pm.

Acknowledging the issue of advertising was largely a federal one, Mr Scipione still said there were concerns with the marketing done by bottle shops.

''I know there's a problem, at least in my mind, when I've got a brochure that gets shoved into my letterbox at home and it shows me I can buy a can of beer effectively cheaper than I can go downstairs here at lunchtime and buy a can of Coke,'' he said.

The working group, which meets fortnightly, comprises representatives from the Attorney-General's Department and the Office of Liquor, Gaming and Racing as well as the commander of drug and alcohol co-ordination with the NSW Police, Superintendent Patrick Paroz, and the commander of major events and incidents, Assistant Commissioner Alan Clarke.

Mr Paroz said the group was examining licensing as ''the biggest-ticket issue'' and doing research into venue and outlet density as ''another critical issue''.

Mr Scipione said research showed venue density, trading hours and the strength of alcohol served, were key factors in alcohol-related violence.

''I think that there are some locations where there are good questions and there is good reason to ask these questions.

''All the research tells us that if you lower the density in these really highly dense locations then you will see a reduction in associated violence.''