Thursday, January 19, 2012

Legal Scholar: Jim Crow Still Exists In America

NPR Fresh Air | 16 January 2012

The New Jim Crow

Mass Incarceration in the Age of Colorblindness
by Michelle Alexander and Cornel West

More on this book:
NPR reviews, interviews and more
Read an excerpt

Under Jim Crow laws, black Americans were relegated to a subordinate status for decades. Things like literacy tests for voters and laws designed to prevent blacks from serving on juries were commonplace in nearly a dozen Southern states.

In her book The New Jim Crow: Mass Incarceration in the Age of Colorblindness, legal scholar Michelle Alexander writes that many of the gains of the civil rights movement have been undermined by the mass incarceration of black Americans in the war on drugs. She says that although Jim Crow laws are now off the books, millions of blacks arrested for minor crimes remain marginalized and disfranchised, trapped by a criminal justice system that has forever branded them as felons and denied them basic rights and opportunities that would allow them to become productive, law-abiding citizens.

"People are swept into the criminal justice system — particularly in poor communities of color — at very early ages ... typically for fairly minor, nonviolent crimes," she tells Fresh Air's Dave Davies. "[The young black males are] shuttled into prisons, branded as criminals and felons, and then when they're released, they're relegated to a permanent second-class status, stripped of the very rights supposedly won in the civil rights movement — like the right to vote, the right to serve on juries, the right to be free of legal discrimination and employment, and access to education and public benefits. Many of the old forms of discrimination that we supposedly left behind during the Jim Crow era are suddenly legal again, once you've been branded a felon."

On Monday's Fresh Air, Alexander details how President Reagan's war on drugs led to a mass incarceration of black males and the difficulties these felons face after serving their prison sentences. She also details her own experiences working as the director of the Racial Justice Program at the American Civil Liberties Union.

Thursday, January 12, 2012

An obituary for Sailesh Rajan: "Dispossessed ALS Solicitor a force of wilful calm"

Aboriginal Legal Service (NSW/ACT) website | 11 January 2012

This obit was written by Jeremy Styles, Principal Legal Officer, ALS Redfern

Following a diagnosis of Angiosarcoma early November, Sailesh Rajan passed away on the morning of 24 December 2011.

Following a stint as a volunteer with ALS Redfern, Sailesh gained employment as a lawyer in ALS Bourke, then transferred to ALS Dubbo. As he began employment after the amalgamation of all the Aboriginal legal services in NSW in 2006, Sailesh does not - regrettably for some - earn the appellation 'WALS solicitor'.

His close family ties in Sydney encouraged him to seek and gain employment back in ALS Redfern.

Sailesh gave the whole of his practice as a lawyer to the service of Aboriginal people in NSW. He gave a substantial period of his life to the most marginalised in country NSW and in Western Sydney.

With his intellect and analytical capacity he could have walked straight into being a high flying corporate lawyer; or indeed a barrister. He had chosen to contribute for an extended period of time to the Aboriginal Community.

Ruth Chalmers, a Solicitor at ALS Wagga Wagga unearthed a paper written by Sailesh describing his experience of working at the Aboriginal Legal Service (NSW/ACT) in remote and urban areas as a Criminal Solicitor.

"It's a lovely heartfelt paper," says Ruth. "He said he wrote it whilst having a 'Jerry Maguire' moment."

"To those who may not have known him very well, it's a great insight into the kind of person he was," adds Ruth. "To those who did know him well, its a great reminder of the passionate, funny and intelligent person we will remember him as."

Ruth says that perhaps most fitting is his final paragraph which made him a pleasure to work alongside:
Attitude is everything. Your experience of this [legal] profession, like much else in your life depends on the attitude you bring to it. People who are successful in this profession, and by successful, I mean, motivated, competent, empathetic and not cynical even after having done it for many years, are without exception people who approach their work and their life with the right attitude. The world you experience is nothing but an echo of your thoughts, feelings and emotions. If you want to see despair and bleakness everywhere, whinge about everything, and ultimately burn out, you can. If you want to see hope and potential everywhere, get on with it cheerfully, and have a fulfilling experience, you can do that too. The choice is yours.

Tuesday, January 10, 2012

New Book: When American Religion Meets American Mass Incarceration

Sara Mayeux  | Prison Law Blog | 9 January 2012

Insofar as America is (descriptively) exceptional,* two key differences setting America apart from its peer nations are mass incarceration and popular religiosity. Assuming the U.S. is most usefully compared with Canada, Australia, and Western Europe (I acknowledge not all will share this assumption), none of these peer nations match the U.S. imprisonment rate and few come close to American levels of church membership, church-going, or public professions of faith. Perhaps not surprisingly, then, many American prisons offer a wide array of faith-based programming (even, or especially, prisons where secular education and rehabilitation programming is meager: for instance, in Louisiana’s Angola State Prison, you can earn a BA from a Baptist theological seminary, but no non-Christian college courses are offered). An evangelical group, Chuck Colson’s Prison Fellowship Ministries, is among the most prominent national organizations sending volunteers into prisons and advocating for criminal justice reform.

How does this convergence of American religiosity with American imprisonment fit with the First Amendment’s ban on state-established religion? In her book Prison Religion: Faith-Based Reform and the Constitution (Princeton UP, 2009), Buffalo law professor Winifred Sullivan uses a recent lawsuit as a case study for considering this question. From the book’s introduction:
In December 2006, in Des Moines, Iowa, a U.S. District Court judge found unconstitutional a faith-based, in-prison rehabilitation program operating in the Newton Facility of the Iowa Department of Corrections, a program known as InnerChange Freedom Initiative (IFI). … Approximately a year after the District Court’s decision, the U.S. Court of Appeals for the Eighth Circuit found Prison Fellowship Ministries at the Iowa prison to be acting “under color of state law” in a program of conversion and discrimination. The Iowa Department of Corrections finally terminated its contract with InnerChange on March 10, 2008. (IFI programs are currently present in the prisons of five other states: Arkansas, Kansas, Minnesota, Missouri, and Texas. Private faith-based prison programs managed by other religious groups also exist in many states. Some states, including Florida, have initiated their own state-run, in-prison, faith-based programs. Because of variations in contracting arrangements, the effect of the Iowa court’s decision on these other programs remains unclear.)
AU v. PFM is acknowledged to be one of the most significant recent court cases considering the application of the establishment clause of the First Amendment to the U.S. Constitution to the new “faith-based” social services. A legal and social climate substantially more hospitable to government/religion partnership than in the recent past has made possible an increase in the number of government contracts with private, “faith based” social service providers, particularly those operating in prisons. … Notwithstanding the actual decision in the case, set in the larger context of religion in the United States, the trial testimony reveals a religious culture in which the sacred and the secular can be seen to be sinuously and ambiguously intertwined and support for religious authority more thoroughly located in the individual rather than in traditional institutions.
I look forward to reading the rest of Sullivan’s book and perhaps blogging about it further.
(h/t: Legal Theory Blog)

* (I’ll leave prescriptivist exceptionalism to the politicians.)

Effective law and order policy need not be a shot in the dark

Don Weatherburn | SMH | January 10, 2012

It's hard to find anyone these days who doesn't believe in evidence-based policy. Politicians swear their allegiance to it, bureaucrats praise it and I've even been lectured by a taxi driver on the need for a more evidence-based approach to crime control.

Evidence-based policy stands in contrast to policy based on hunch, prejudice, guesswork or the desire for a ''warm inner glow''. The public service's embrace of it has been more rapid and fervent than Saul's conversion on the road to Damascus. If this epiphany were real, ordinary taxpayers would have much to celebrate, especially in the domain of law and order. But, sadly, it can't be believed.

You would never be able to market a pharmaceutical drug in Australia without rigorous evaluation by the Therapeutic Goods Administration. But state and territory governments routinely spend large sums of taxpayers' money trying to reduce crime and re-offending without subjecting the measures to any evaluation. Where evaluations are undertaken, the results are often ignored.

The promise to appoint additional police and impose tougher penalties on crime are staples at nearly every election; yet no Australian state or territory government has ever promised to evaluate and publicly report on the effects of additional police and tougher penalties.

And it isn't just those old staples that escape critical scrutiny. The list of policies shown by my office to have no effect on re-offending in NSW includes high fines for drink drivers, supervision of offenders on good behaviour bonds, detention for juvenile offenders, the forum sentencing program (a restorative justice program for young adult offenders) and the circle sentencing program (under which Aboriginal offenders are brought before community elders for sanctioning).

Despite the negative results, all these policies remain in place. Meanwhile, programs that have been known for years to be effective, such as the NSW Drug Court Program, are only now being expanded.

Why do governments trumpet the virtues of evidence-based policy, while often ignoring it in practice? One reason is that law and order policy is as much, if not more, influenced by what's popular than by what's effective.

Tough penalties and measures that give victims an opportunity to confront offenders and demand an apology and restitution go down well with the general public. Giving cognitive behavioural therapy to violent offenders to help them manage their anger is nowhere near as attractive, even though it works.

Another reason is that, far from being politically neutral, senior public servants often have political or policy agendas of their own that they want to pursue.

A third reason is that unlike areas such as those of health and education, criminal justice agencies have no entrenched culture of research and development.

Fourth, the public servants who end up managing rehabilitation programs often end up becoming forceful advocates for those programs and trenchant critics of evaluations that produce negative results.

The long-term solution to all this is a better-informed public and more rigorous scrutiny of law and order policy by the media. Here are 10 questions one should ask of any government that declares its commitment to evidence-based policy:

1. Does the government state the objectives of its law and order policies and programs in terms that can be measured? If not, there is no way they can be properly evaluated.

2. Does the government base its policies and programs on the results of systematic reviews, such as those published on the website of The Campbell Collaboration, an international research network? These reviews objectively summarise the results of all past rigorous research into the effectiveness of various interventions in preventing crime and reducing re-offending.

3. Are the government's law and order policy advisers trained in both research methods along with statistical analysis?

4. Does the government provide researchers with comprehensive access to information on the rate at which convicted offenders are reconvicted?

5. Does the government provide to researchers comprehensive access to all information on reported crime?

6. Are all major new programs subjected to rigorous cost-benefit or cost-effectiveness evaluation by an independent agency?

7. Are all evaluations subjected to independent peer review by appropriate experts in the field to detect flaws?

8. Does the government abandon or substantially modify programs that have been shown to be ineffective in achieving their stated goals?

9. If the government substantially amends a policy or program, is the revised policy/program evaluated?

10. Does the government ever delay or withhold the results of evaluations it commissions? If so, then the government is clearly keen to persist with policies that are not supported by evidence.

Without this planning, training, transparency and responsiveness, policies may amount to a complete waste of public money.

Where governments are truly committed to evidence-based policy, it should be possible to answer all these questions with a ''yes''.

Dr Don Weatherburn is director of the NSW Bureau of Crime Statistics and Research.