Our ‘Broken System’ of Criminal Justice

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

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

 


Drawing by Honoré Daumier

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

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

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

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

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

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

A major part of the book includes a historical narrative that identifies the sources of this discrimination against African-Americans and also explains the severity of our treatment of all offenders. The severity of the system is almost as disturbing as its discriminatory impact. In the years between 1972 and 2007, the nation’s imprisonment rate more than quintupled—increasing from 93 to 491 per 100,000 people. The rate at the end of that period vastly exceeded the analogous rate in other Western countries, which varied from 132 for England and Wales to a mere 74 in Germany and 72 in France. Moreover, during those years,

The number of prisoner-years per murder multiplied nine times. Prisons that had housed fewer than 200,000 inmates in Richard Nixon’s first years in the White House held more than 1.5 million as Barack Obama’s administration began. Local jails contain another 800,000.

Rather than a “collapse,” however, these figures suggest to me that the current system of criminal law and enforcement (like too many of our citizens) has grown obese.

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

Ken Clarke: the revolution that never was

Editorial | The Guardian | 28 October 2011

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

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

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

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

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

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

Crack appears in juvenile detention plan

Farah Farouque | The Age | 10 November 2011

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Richard Glover | 702 ABC Radio | 10 November 2011

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

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

Download the audio file

Nightclub assailant protests he was the real victim

Geesche Jacobsen | SMH | 7 November 2011

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

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

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

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

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

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

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


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

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

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

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

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

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

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

Juvenile Justice reviews

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

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

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

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

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

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

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

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

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

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

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

AG at Estimates: Graffiti

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

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

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

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

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

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

AG at Estimates: Mental Health in custody

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

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

Mr GREG SMITH: No, I do not.

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

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

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

Mr WOODHAM: Yes, I can give you that.

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

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

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

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

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

Mr HUBBY: I will take that on notice.

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

Mr WOODHAM: Yes.

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

Mr WOODHAM: What the whole facility costs?

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

Mr WOODHAM: Our main programs are not there.

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

Mr WOODHAM: Yes.

Legal aid: the new poor law

Editorial | The Guardian | 26 October 2011

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

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

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

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

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

Plucked from poor villages, boys land in jail

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

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

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

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

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



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

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

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

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

Jailing fathers increases problems in Indigenous communities

Richard Fletcher | The Conversation | 13 October 2011

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

DISCLOSURE STATEMENT

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



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

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

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

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

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

Deaths remove fathers completely

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

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

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

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

Interrupting Violence With The Message 'Don't Shoot'

NPR Fresh Air | November 1, 2011

Listen to the Interview [31 min 14 sec]



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

by David M. Kennedy

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

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

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

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

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

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

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

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

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

AG at Estimates: Charge Bargaining

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

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

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

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

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

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

The Hon. ADAM SEARLE: Charge bargaining. 

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

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

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

The Greens’ Threat to Religious Freedom

Greg Smith | Quadrant | October 2011

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

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

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

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

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

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

Therefore, with one main exception, the drafters of the Australian Constitution did not see it necessary to include a US-style bill of rights or other statement of principles guaranteeing the fundamental freedoms of those bound under it. Justice McHugh expressed this well in Australian Capital Television v Commonwealth:

Although the makers of the Constitution were much influenced by the terms and structure of the Constitution of the United States and “felt the full fascination of its plan”, they rejected the United States example of a Bill of Rights to protect the people of the Commonwealth against the abuse of governmental power. They did so because they believed in the efficacy of the two institutions which formed the basis of the Constitutions of Great Britain and the Australian colonies—representative government and responsible government.

The absence in the written document of the Australian Constitution of express rights such as those granted by the Bill of Rights under the US Constitution did not prevent the High Court in that case from finding a constitutional protection for freedom of communication. To the contrary, the system of representative government was the precise reason why such a right existed. In the words of Chief Justice Mason in that case: “Freedom of communication … is so indispensable to the efficacy of the system of representative government for which the Constitution makes provision that it is necessarily implied in the making of that provision.”

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

To this general principle of avoiding “bill of rights”-style guarantees, there is one main exception found in section 116 of the Constitution which provides:

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

Vandals to clean own mess

Nino Bucci | The Age | 20 October 2011

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

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

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

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

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

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

Unfair bail laws used as punishment: magistrate

Geesche Jacobson | SMH | 26 October 2011

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Women behaving badly

The Economist | 29 October 2010 

Calls to reform the sentencing of women are growing louder

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

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

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

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

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

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

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

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

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

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

Robert Reiner | The Guardian | 28 October 2011


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

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

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

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

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

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

Why California prisoners press on with hunger strike

George Lavender | The Guardian | 17 October 2011


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

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

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

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

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

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

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

Reasonable Cause conference: papers

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

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

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

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