Age of criminal responsibility is too low, say brain scientists

Alok Jha | The Guardian | 13 December 2011

Parts of the brain responsible for decision-making and impulse control are still developing during a person's teens

The age of criminal responsibility in England, Wales and Northern Ireland could be "unreasonably low" given the emerging understanding of how slowly the brains of children mature, according to a report by the Royal Society. Widespread differences between individuals also mean that the cut-off age at which children are deemed fit to stand trial, at 10 years old, might not be justifiable in all cases.

The comments are part of an assessment carried out by a panel of scientists, lawyers and ethicists of how developments in neuroscienceand brain imaging should inform the future practice of law. Neuroscience and the Law, published on Tuesday, examines how scientific understanding of the brain has advanced in recent decades and the light this has shed on behaviour. The report also assesses the reliability of lie detector tests.

In England, Wales and Northern Ireland, a child is deemed fit to stand trial at the age of 10, but in recent years it has been shown that important changes in the brain's neural circuits go on well into a person's teens. In Scotland children cannot be convicted until they are 12.

"A number of psychologists have already shown that adolescents are not wholly responsible individuals and are inclined to take risks and behave in irresponsible ways," said Nicholas Mackintosh, an emeritus professor in the department of experimental psychology at the University of Cambridge and chair of the Royal Society panel. "What neuroscience has shown in the last 10 years is that this is at least associated with the fact that the brain continues to develop throughout adolescence."

In particular, the prefrontal cortex, which is responsible for decision-making, impulse control and cognitive control, is among the slowest parts of the brain to mature and is not fully developed until around the age of 20. "Neuroscience adds to the evidence that a 10 or 12 or 15-year-old does not have a fully adult brain in many important respects," said Mackintosh.

Populist approach to violence hardly good public policy

Josh Gordon | The Age | December 8, 2011


Melbourne is a safe place to live, so what's all the hysteria about?

Melbourne is a bad-ass town. At least it is according to outspoken Liberal MP Bernie Finn, who recently told his local paper that parts had become so dangerous automatic weaponry was needed.

''Places like Werribee, Sunshine, Williamstown . . . have suffered for a long time,'' he said. There are places . . . without a flak jacket and a sub-machinegun you just wouldn't go there.''

Finn was no doubt being colourful, as is his custom. But the comments underscore a growing sense of hysteria being encouraged by some political figures and members of the commentariat.

You might be forgiven for thinking Melbourne is in danger of being overrun by ''thugs'' (a word that incidentally derives from the Hindi ''thuggee'', who were members of an extinct Indian robber cult who killed their victims with knotted scarves) who have been allowed to ride roughshod by liberal-minded judges.

But, according to analyst Economist Intelligence Unit in its global liveability survey, Melbourne has once again overtaken Vancouver as the world's most liveable city. It is one of the safest places to live in the world.

In 2010-11 there were 6429 crimes committed for every 100,000 Victorians, a fall of 3.9 per cent compared with the previous year, and the lowest since comparable records began in 1993.

While it is true that the rate of so-called crimes ''against the person'' increased by 4 per cent, as new Police Commissioner Ken Lay points out, this has had much to do with the burgeoning problem of family-related violence. Crimes linked to family incidents, for example, leapt by an alarming 26 per cent in the year. In contrast, other crimes against the person increased by just 0.1 per cent (murders fell sharply).

The bottom line is that it is difficult to say whether Melbourne's streets are becoming less safe. Even if you accept they are, it is simplistic to blame hoons, thugs and louts, as if they represent a new subspecies of humanity.

The Baillieu government's populist approach to law and order has been its controversial tough-on-crime agenda, which includes the abolition of suspended sentences and home detention, minimum jail terms (except in extenuating circumstances) for 16 and 17-year-olds who commit acts of gross violence and new ''baseline'' minimum sentences.

A better approach would be to focus on ''upstream'' causes, rather than tackling ''downstream'' symptoms.

Killer's sharp suit fails to dress up a hollow tale

John Silvester | The Age | September 30, 2011



Matthew Johnson in the clothes he has worn most of his adult life.

THE man in the witness box doesn't look like an institutionalised inmate and one of the most dangerous men in Australia.

In his well cut shark-grey suit and matching tie he could pass for a fitness-conscious stockbroker: the type that chooses the shaved head look favoured by many modern metrosexuals.

There are no signs of jail tattoos, body piercings or battle scars to hint at the man's 20-year criminal history that now includes 159 criminal convictions - the last added yesterday when a Supreme Court jury found him guilty of murdering underworld identity Carl Williams inside Barwon Prison.

Yet at his first appearance to testify there are signs that the outfit is not the witness's daily business attire but clothes bought to impress the jury. On the sleeve of the brand new suit are four spare buttons, still loosely attached by a piece of tailor's cloth. The back slit on the jacket is held together by a single temporary stitch - a sure sign it is fresh from a store rack rather than a private wardrobe.

Over three days in the witness box, Matthew Johnson stuck to his improbable story, that he killed Williams in self-defence. His barrister, Bill Stuart, argued through the trial it was a case of ''kill or be killed''.

Such a position was somewhat eroded when the jury saw prison video of Johnson attacking Williams from behind on April 19 last year, beating him eight times over the head with the metal stem of an exercise bike and dragging him into his cell.

There they saw Johnson in the clothes he has worn most of his adult life: the prison garb of red T-shirt and shorts.

In the witness box, Johnson maintained he believed Williams was planning to kill him using four billiard balls inside a sock as a weapon. His voice was controlled, his answers measured and his version of events - totally unbelievable.

Even Johnson didn't seem confident the jurors would swallow his story. ''The moment I made up me mind to kill Carl, I just assumed that the next 30 to 40 years I'm spending in jail,'' he told them.

The exact number of years will now be decided by Justice Lex Lasry at a later sentencing date but Johnson's estimation seems certain to be around the mark.

When the jury of seven women and five men returned their verdict after 14 hours of deliberation, Johnson showed no emotion. The decision would hardly have surprised the career criminal who knew this day was coming from the time he launched his premeditated attack 19 months earlier.

Insider trader wins early release

Leonie Lamont | SMH | December 7, 2011

John Hartman, the youngest person jailed in Australia for insider trading, will be released from jail early after a successful appeal to the NSW Court of Criminal Appeal.

Hartman's original four year jail term and three-year non-parole period was quashed by the appeal judges, who re-sentenced him to a jail term of three years, and non-parole period of 15 months - meaning he will be released from jail on March 1 next year.

Hartman was only 20 when he started work as an equities dealer with Orion Asset Management in 2006. Between 2007 and 2009 he passed inside information to a friend, and traded on his own account in contracts for difference. He used his inside knowledge of pending Orion trades to engage in ''front running'', making nearly $1.6 million in profits.
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Pleading guilty to the charges, Hartman has been in jail since December last year.

Justice Anthony Whealy, who during the appeal hearing said there needed to be general deterrence for ''21 year old masters of the universe'', reiterated the sentiment in this morning's judgement.

The appeal judges did not agree that Hartman's youth and relative immaturity had any role to play in the downgrading of general deterrence.

''The applicant was operating in the adult sphere of business and commerce in every respect, and of course he was himself an educated and worldly young adult in every sense of the word.

''The court cannot lose sight of the need to deter young adults from taking the significant financial advantages offered by the contemporary business world in circumstances where, at the same time, they reject the legal and moral constraints properly imposed upon their commercial behaviour.''

The court did take into account Hartman's depressed mental condition, and pathological gambling addiction, in redetermining the sentence

Sniffer dogs get it wrong four out of five times

Anna Patty | SMH | December 12, 2011



Police say ''accurate'' … a sniffer dog at a festival. Photo: Dean Sewell

A RECORD 80 per cent of sniffer dog searches for drugs resulted in ''false positives'' this year, figures show.

The figures obtained from the state government in response to parliamentary questions on notice show 14,102 searches were conducted after a dog sat next to a person, indicating they might be carrying drugs. But, in 11,248 cases, no drugs were found.

Only 2854 searches - 20 per cent - in the first nine months of this year, resulted in drugs being found, the figures show.

Last year, of the 15,779 searches conducted after police-dog identification, no drugs were found in 11,694 cases. Drugs were found in 4085 cases, resulting in a ''false positive'' rate of 74 per cent, said the Greens MP David Shoebridge, who obtained the figures.

Matthew Pels, 22, of Erskineville, a hospitality student, said he was one of the thousands searched in a public place and found not to be carrying drugs.

Mr Pels said a police dog sat next to him at Redfern station before he underwent a search about six months ago. When his pockets were emptied, a packet of dog treats was found.

''The whole thing was unnecessary,'' he said. ''I think it was a violation of my privacy.''

Mr Shoebridge said the figures showed thousands of innocent people were being ''ritually humiliated'' publicly.

''No test which has an 80 per cent error rate could be considered a reasonable basis on which to conduct an intrusive public search of a citizen going about their daily business,'' Mr Shoebridge said.

''Now that we know the error rate is so high, the program needs to be halted. Because of where they operate, police sniffer dogs tend to target young people and Aborigines. If this was happening in the car parks of merchant banks, there would be outrage.''

The secretary for the NSW Council for Civil Liberties, Stephen Blanks, argued the use of sniffer dogs infringed people's freedoms and could only be justified if it resulted in a high rate of detections.

But police strongly defend the use of the dogs, saying they are reliable and can detect remaining traces of drugs on people, even after they have been disposed of.

Inspector Chris Condon of the NSW Police dog unit said the detection dogs were extremely accurate, adding that more than ''80 per cent of indications by the dogs result in either drugs being located or the person admitting recent contact with illegal drugs.

''Any suggestion otherwise is incorrect,'' Inspector Condon said. ''Drug-detection dogs are an important facet of the overall harm-minimisation strategy of the NSW Police Force. Drug-detection dogs are an extremely effective deterrent to persons transporting drugs for the purpose of supply.''

The NSW Police Association supports the dogs' use. Its president, Scott Weber, has said they have been valuable deterrents at events such as The Big Day Out.

A spokesman for the NSW Police Minister, Mike Gallacher, said the government fully supported the use of dogs because police had found them effective.

Don Weatherburn, the director of the NSW Bureau of Crime Statistics and Research, has said the high number of searches relative to detections is not an indication of failure. ''The question is how many people would carry drugs if not for sniffer dogs,'' Dr Weatherburn said.

Lawyers fear rise in use of capsicum spray

Alison Caldwell | ABC Online |  5 December 2011

Lawyers in Victoria say they fear recent changes to the Victoria Police manual could lead police to use capsicum spray or foam more often.

Capsicum spray, also known as pepper spray, is a crowd control weapon which makes the skin and eyes sting and burn.

The spray has been in the news worldwide because of the Occupy protests and two police officers in California were recently suspended after they used the spray on protesting university students.

AUDIO: Concerns police will use capsicum spray more often (PM)

Police in Victoria have been using the spray on offenders since 1998.

Until recently the police manual provided guidelines for the use of capsicum spray, including when it should and should not be used on a person.

The manual used to state the spray or foam should not be used "when a person is passively resisting arrest such as hanging limp or refusing to comply with instructions."

But that guideline was removed from the police manual last year.

Melbourne lawyer Anthony Kelly, from the Flemington and Kensington Community Legal Centre, says he is concerned police will start to use capsicum spray more liberally.

"Our major concerns are that when capsicum spray was first introduced it was very clearly specified that it should only be used in really violent or confrontational situations of serious physical confrontation," he said.

"But more and more we're seeing the use of capsicum spray against people who are simply non-compliant with police orders - so against prisoners, against people in custody, but also against protesters who are peaceful and are engaged in what's sometimes called passive resistance or non-violent civil disobedience.

"Prior to February last year there were very clear guidelines that it should only be used in situations of violence and serious physical confrontation ... and those guidelines have now been removed from the recent edition.

"We're concerned that police are more likely to use capsicum spray against people who are engaged in non-violent protest, peaceful protest."

Bad evidence convicted Folbigg of killing children - academic

Stuart Washington | SMH | December 5, 2011

WHEN Kathleen Folbigg was jailed for 30 years, there was almost universal condemnation for a mother who had done the unthinkable: killing four of her children as they lay in their beds.

A headline after the NSW Supreme Court guilty verdict read: ''Incapable of love, compelled to kill: the diaries of a tortured mother.''

Now, after six years researching the case, a legal academic living in Canada believes Folbigg was wrongly convicted based on unreliable evidence from medical experts.

And Emma Cunliffe is calling for NSW to introduce the same ''last resort'' mechanism that was used in the Northern Territory to quash Lindy Chamberlain's murder conviction.

The attack on the reliability of expert evidence in Folbigg's trial follows a court ruling on Friday allowing Jeffrey Gilham a retrial on his charge of murder, and possibly even an acquittal, after evidence from experts was found to have been flawed.

The claims by Dr Cunliffe in her book Murder, Medicine and Motherhood stand against the combined weight of the jury verdict in Folbigg's 2003 trial and two unsuccessful appeals.

Justice Reinvestment Approach Increases Public Safety, Cuts Millions in Spending

Robert Coombs, Council of State Governments Justice Center | Capitol Ideas | Nov - Dec 2011

Using Data and Expert Assistance, North Carolina and Ohio Enact Bipartisan Legislation

In June, state leaders from across the political spectrum in both North Carolina and Ohio came together in their respective states to enact comprehensive, data-driven legislation using a justice reinvestment approach. Both states received intensive technical assistance from The Council of State Governments Justice Center, in partnership with the Pew Center on the States and the Bureau of Justice Assistance.

The bills in both states will increase public safety and reduce crime by making probation more effective, increasing sentence lengths for certain high-risk property offenders or the most serious and violent offenders, and expanding sentencing options for nonviolent and first-time felony offenders.

Ohio

Ohio’s criminal justice system faced population pressures that outstripped resources. The state’s prisons were 33 percent over capacity and projected to add another 2,800 people by 2015. Nearly half of prison admissions consisted of property and drug offenders who received short sentences followed by no supervision.

Outside the prison walls, Ohio’s probation system—a patchwork of 187 independent agencies—lacked consistent policies and minimum standards. No statewide data existed, making it difficult to know how many were on probation. Research showed some programs were increasing recidivism rates because they used no criteria to filter out participants who would not benefit from the intensive programs.

Over 18 months, a bipartisan, inter-branch working group reviewed exhaustive analyses prepared by the CSG Justice Center, and, drawing on that information, designed a 13-point policy framework to accomplish three core goals:

Require first-time property and drug offenders to serve probation terms and attend treatment;

Establish statewide criteria for community correction programs, prioritizing placement of people who would benefit most from community supervision and treatment; and

Establish statewide standards for probation to ensure consistency from county to county.
Sen. Bill Seitz sponsored the framework introduced as House Bill 86. The Ohio General Assembly passed the legislation with sweeping bipartisan majorities and on June 29, Gov. John Kasich signed the bill into law.

The new law is expected to avert all projected growth in Ohio’s prison population through 2015, helping the state avoid an estimated half-billion dollars in spending. In addition, the new statute eases prison crowding as the population gradually declines to levels last seen in 2007, generating $78 million in savings by 2015.

Moreover, the adoption of statewide risk assessment instruments means community supervision and treatment resources will be consistently targeted toward offenders who need them the most. The state will reinvest $20 million over four years to improve felony probation supervision, providing incentive funding for agencies that reduce recidivism.

North Carolina

With an increasing number of probation revocations and various sentence enhancements, North Carolina’s prison population was projected to grow 10 percent by 2020. Detailed analyses conducted by the CSG Justice Center showed that only 15 percent of people leaving prison received supervision and many high-risk offenders returned to the community unwatched. Furthermore, community-based treatment programs were poorly targeted, minimizing their impact on public safety.

With guidance from an inter-branch working group established by the governor and state leaders, CSG Justice Center staff developed policy options that included a new habitual breaking and entering offense and required post-release supervision for everyone convicted of a felony. One recommendation was that the state prioritize supervision resources for high-risk individuals and empower probation officers to implement swift and certain sanctions. By focusing existing treatment resources on people who would benefit the most from them, the law concentrated on reducing recidivism.

Rep. W. David Guice introduced the policies as House Bill 642, The Justice Reinvestment Act, which passed with near unanimous bipartisan support and was signed by Gov. Bev Perdue on June 23.
Since then, the state has shuttered two prisons and expects to save more than 3,600 beds by the 2017 fiscal year. The reduction in the population translates into more than $560 million saved over six years, including $267 million in avoided costs and $293 million in savings from reduced costs. These savings position the state to reinvest more than $4 million annually to expand community-based treatment programs for people on supervision.

Looking Ahead

The CSG Justice Center continues to work with Oklahoma and Hawaii as Justice Reinvestment states. Like North Carolina, many offenders in Oklahoma go without supervision and the prison population seems poised to climb. Hawaii has set the goal of managing its prison population in order to move all of the state’s offenders out of mainland prisons and back to in-state facilities.

The CSG Justice Center’s Justice Reinvestment Initiative is a partnership with the Public Safety Performance Project of the Pew Center on the States and the Bureau of Justice Assistance, U.S. Department of Justice. The CSG Justice Center has provided data-driven analyses and policy options to state leaders in 14 states.

Interpreting The Constitution In The Digital Era

NPR Fresh Air | November 30, 2011



GPS monitors can track your every movement. Brain scans can now see lies forming in your brain. And advancements in genetic engineering may soon allow parents to engineer what their children will look and be like.

These new technologies are "challenging our Constitutional categories in really dramatic ways," says George Washington University law professor Jeffrey Rosen. "And what's so striking is that none of the existing amendments give clear answers to the most basic questions we're having today."

On Wednesday's Fresh Air, Rosen, the co-editor of the new book Constitution 3.0: Freedom and Technological Change, details how technological changes that were unimaginable at the time of the Founding Fathers are challenging our notions of things like personal vs. private space, freedom of speech and our own individual autonomy.

GPS Monitoring

Rosen points to United States v. Jones, a case the Supreme Court is currently considering. At issue is whether police need to have a warrant from a judge before attaching a secret GPS monitor to a car to track a suspect around the clock.

"The relevant constitutional text is the Fourth Amendment, which says, 'The right of the people to be secure in their houses, persons, papers and effects against unreasonable searches and seizures shall not be violated,' " he says. "But that doesn't answer the question: Is it an unreasonable search of our persons or effects to be monitored in public spaces?"

The government contends that the Fourth Amendment only bans warrantless searches of private spaces — and that a GPS device is just an extension of basic human surveillance. But some others disagree, Rosen says. Judge Douglas Ginsburg, a member of the U.S. Court of Appeals in Washington, D.C., argued that there is a difference between short-term and long-term surveillance, and that people have the expectation of privacy in both situations.

Regardless of what the Supreme Court decides, Rosen says, the "GPS case has the potential to be the most important privacy case of the decade."

"Will the justices be willing to look beyond the existing Fourth Amendment categories, which have been inadequate to confront these new virtual technologies, and take a leap of imagination?" he asks. "Really, the leap they're being asked to take is the one that Justice Brandeis took in the 1920s when the court decided for the first time the constitutionality of wiretapping."

In that instance, Brandeis wrote the dissenting opinion in Olmstead v. United States, a landmark case in which the court ruled that neither the Fourth Amendment nor the Fifth Amendment protects a defendant against having personal conversations wiretapped by federal agents.

"Brandeis noted that at the time of the framing of the Constitution, a far less intrusive search — namely breaking into someone's home and riffling through their desk drawers to identify a critic of King George III — was the quintessential example of an unreasonable search," Rosen says. "[Brandeis added] that it was now possible to invade the privacy of people of both ends of a telephone wire. And then ... Brandeis looked forward to the age of cyberspace. He said, 'Ways may someday be developed — without breaking into desk drawers — to extract papers from home and introduce them in court before a jury. ... The court should translate the Constitution and recognize that you don't need a physical trespass to create an unreasonable search.'"

Rosen says it took decades for the Supreme Court to embrace Brandeis' insights. In 1967, the high court overruled Olmstead v. United States in the case Katz v. United States, which extended the Fourth Amendment to include all areas where a person "has a reasonable expectation of privacy." Law enforcement agents were then required to obtain a warrant before wiretapping suspects.

The Constitution In The Year 2025

But how the Fourth Amendment — and the other amendments to the Constitution — should extend to quickly changing technologies is unclear.

Recently, Rosen and his colleague Benjamin Wittes asked leading legal scholars to imagine technologies that might be developed in the next few decades that would challenge current constitutional laws. Their hypothetical scenarios, collected in Constitution 3.0, address questions about a variety of topics, including security, free speech, privacy and the constitutional right against self-incrimination.

Rosen describes one privacy scenario, imagined at a conference by Google public policy chief Andrew McLaughlin, in which websites like Google and Facebook could someday potentially post video from live surveillance cameras online — and then archive those videos in a database.

Repeat felons to receive less prison time

Alex Freedman | Eyewitness 9 News, Greenville North Carolina | November 30, 2011 

Detention conditions: degrading, intolerable and inhumane

Phil Lynch | The Drum | 30 November 2011

Conditions of detention in Australia have been in the news for all the wrong reasons recently.

In April, an independent report tabled in Western Australia's parliament described prison conditions in that state as "degrading, intolerable and inhumane".

Recent reports from Victoria's Ombudsman have been similarly critical, variously describing conditions in youth detention facilities, police cells and the Melbourne Custody Centre as "appalling", "disgraceful" and incompatible with basic human rights.

Inhumane conditions of detention are not confined to correctional facilities. Nor are they confined to the mandatory immigration detention facilities so infamously described by Australian of the Year Professor Patrick McGorry as "factories for mental illness" and by the Australian Medical Association as "a form of child abuse".

Inhumane conditions also persist in many mental health and disability services. Indeed, investigations reported in The Age newspaper over the last two months have revealed the deaths of at least 36 people in Victorian psychiatric wards in the last three years, together with widespread allegations of physical and sexual abuse of patients.

This is just a snapshot of the developments that make Australia's implementation of the UN's Optional Protocol to the Convention against Torture and Ill-Treatment so imperative, and the two-year delay in ratifying that treaty since Australia signed it in 2009 so galling.

The Optional Protocol is an international treaty which aims to prevent ill treatment and promote humane conditions by establishing systems for independent monitoring and inspection of all places of detention.

It is not only in the interests of persons deprived of liberty, but also the broader community, that all places of detention – whether prisons, psychiatric hospitals, police cells or disability facilities – promote rehabilitation and reintegration and that all detainees are treated with basic dignity and respect. Independent inspections and oversight are critical in this regard.

At the national level, the Optional Protocol requires that countries establish what is known as a "national preventative mechanism", or NPM. An NPM is an independent body with a mandate to conduct both announced and unannounced visits to places of detention, to make recommendations to prevent ill treatment and improve conditions, and to report publicly on its findings and views.

At the international level, the Optional Protocol establishes an independent committee of experts – comprising doctors, lawyers, social workers and academics – with a mandate to carry out country missions to monitor deprivations of liberty. The UN Sub-Committee on the Prevention of Torture, as it is called, is also tasked to work cooperatively with states and NPMs to provide advice and training on the prevention of ill-treatment in places of detention.

The whole system is premised on the evidence and experience that external scrutiny of places of detention can deter and, where necessary, help to redress torture and other forms of ill treatment. By making places of detention more open, transparent and accountable, it helps to ensure that persons deprived of liberty – whether people with psychiatric illness, prisoners, people with disability or asylum seekers – are treated with basic dignity and respect.

Existing systems for transparency and accountability of places of detention are manifestly inadequate in Australia. In Victoria, for example, the Office of Correctional Services Review is an internal business unit within the Department of Justice. It reports to the Secretary of the Department – the very secretary with responsibility for correctional management – and does not make its reports public. The problem of lack of independence is not confined to corrections. The 36 deaths in psychiatric facilities are being investigated by the Office of the Chief Psychiatrist, an office which, according to its own website "has responsibility under the Mental Health Act for the medical care and welfare of persons receiving treatment or care for a mental illness".

Australia signed the Optional Protocol in May 2009. Since that time, progress on ratification and implementation has been slow, with wrangling between the states and the Commonwealth about who is to foot the modest bill for detention monitoring and oversight. This is despite international evidence as to the very high social and economic costs of failing to prevent and redress ill-treatment. On any estimate, the costs of independent monitoring and oversight are absolutely dwarfed by the $23 million paid by the Commonwealth for the unlawful detention and ill-treatment of immigration detainees over the last decade, costs which could have been largely avoided with a functioning and effective NPM.

Despite its name, there should be nothing optional about Australia's ratification and implementation of the Optional Protocol. The prevention of torture and ill treatment is certainly not regarded as optional or negotiable by like-minded countries. The United Kingdom, for example, ratified the treaty almost eight years ago, while New Zealand has no less than five independent, publicly accountable bodies mandated to visit and report on places of detention.

The Commonwealth, state and territory governments should all prioritise and expedite ratification and implementation of the Optional Protocol to the Convention against Torture. Any further delay in the prevention of ill-treatment has intolerable social and economic costs and is simply not an option.

Phil Lynch is Executive Director of the Human Rights Law Centre. You can follow the HRLC on Twitter @rightsagenda.

The Certainty of Memory Has Its Day in Court

Laura Beil | New York Times | 28 November 2011

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

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

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

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

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

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

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

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

Prosecution claims insider trader's sentence excessive

Andrew Main | The Australian | 10 November  2011

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

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

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

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

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

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

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

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

Radio attack dogs fail to shake lawman

Sean Nicholls | SMH | 26 November 2011

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Nick Leys | The Australian | 22 November 2011

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

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

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

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

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

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

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

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

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

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

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

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

Hadley could not be contacted yesterday.

Listen to the interview here

and some more Hadley ranting on Smith the next day

Attorney-General Greg Smith stung by Ray Hadley

Andrew Clennell | The Daily Telegraph | 22 November 2011



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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ian Birrell | The Guardian | 20 November 2011 

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


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

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

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

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

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

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

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

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

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

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

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

Swearing at police is not a crime, judge rules

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

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

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

Policing unions said the ruling would undermine respect for officers.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

AG at Estimates: Bail

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

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

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

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

Another trend has been the increase in the number of juveniles being held in custody pending a court 

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

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

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

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

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

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

Occupying the First Amendment

Raymond Vasvaril | Slate | November 15, 2011

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

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

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

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

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