Legal Scholar: Jim Crow Still Exists In America

NPR Fresh Air | 16 January 2012

The New Jim Crow

Mass Incarceration in the Age of Colorblindness

by Michelle Alexander and Cornel West

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ruth says that perhaps most fitting is his final paragraph which made him a pleasure to work alongside:

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

New Book: When American Religion Meets American Mass Incarceration

Sara Mayeux  | Prison Law Blog | 9 January 2012



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

How does this convergence of American religiosity with American imprisonment fit with the First Amendment’s ban on state-established religion? In her book Prison Religion: Faith-Based Reform and the Constitution (Princeton UP, 2009), Buffalo law professor Winifred Sullivan uses a recent lawsuit as a case study for considering this question. From the book’s introduction:

In December 2006, in Des Moines, Iowa, a U.S. District Court judge found unconstitutional a faith-based, in-prison rehabilitation program operating in the Newton Facility of the Iowa Department of Corrections, a program known as InnerChange Freedom Initiative (IFI). … Approximately a year after the District Court’s decision, the U.S. Court of Appeals for the Eighth Circuit found Prison Fellowship Ministries at the Iowa prison to be acting “under color of state law” in a program of conversion and discrimination. The Iowa Department of Corrections finally terminated its contract with InnerChange on March 10, 2008. (IFI programs are currently present in the prisons of five other states: Arkansas, Kansas, Minnesota, Missouri, and Texas. Private faith-based prison programs managed by other religious groups also exist in many states. Some states, including Florida, have initiated their own state-run, in-prison, faith-based programs. Because of variations in contracting arrangements, the effect of the Iowa court’s decision on these other programs remains unclear.)

AU v. PFM is acknowledged to be one of the most significant recent court cases considering the application of the establishment clause of the First Amendment to the U.S. Constitution to the new “faith-based” social services. A legal and social climate substantially more hospitable to government/religion partnership than in the recent past has made possible an increase in the number of government contracts with private, “faith based” social service providers, particularly those operating in prisons. … Notwithstanding the actual decision in the case, set in the larger context of religion in the United States, the trial testimony reveals a religious culture in which the sacred and the secular can be seen to be sinuously and ambiguously intertwined and support for religious authority more thoroughly located in the individual rather than in traditional institutions.

I look forward to reading the rest of Sullivan’s book and perhaps blogging about it further.
(h/t: Legal Theory Blog)

—

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

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

Don Weatherburn | SMH | January 10, 2012

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Harsh penalties for boat crew 'target wrong people'

Jared Owens | The Australian  | December 31, 2011

NINE Australian judges have now criticised laws imposing mandatory five-year jail terms on the crew of asylum-seeker boats, with the latest saying the harsh penalties target the wrong people, condemn their children to "extreme poverty" and have no deterrent effect.

Sentencing two impoverished Indonesian fishermen this month, Queensland Supreme Court judge Roslyn Atkinson said the laws were failing to catch the smuggling kingpins who move freely between Indonesian villages in search of more crew members to bribe on to the boats.

"Those people who employ men like you will just move to another village because they regard you as completely expendable, and people in small villages without newspapers or the means of modern communication are most unlikely to hear of a sentence imposed in an Australian court," Justice Atkinson said in Brisbane on December 2.

Since the policy was introduced under the Howard government in 2001, it has been criticised by at least nine judges in NSW, Western Australia, Queensland and the Northern Territory.

Northern Territory Supreme Court judge Judith Kelly -- sentencing Edward Nafi, 58, in May -- said the five-year penalty for the offence was "completely out of kilter with sentences handed down in this court for offences of the same or higher maximum sentences involving far greater moral culpability".

Other judges to complain of the laws include Northern Territory Supreme Court Chief Justice Trevor Riley and judges of the same court, Dean Mildren and Peter Barr; West Australian District Court judge Mary Ann Yeats, NSW District Court judge Brian Knox and Queensland District Court acting judge Brad Farr.

But Federal Attorney-General Nicola Roxon yesterday backed mandatory sentencing, saying through a spokesman it was an effective deterrent when combined with other measures such as education campaigns.

When The Weekend Australian presented Ms Roxon's office with a parliamentary petition she tabled in 2001 denouncing mandatory sentencing in the NT and Western Australia as racist and insisting on greater discretion for judges, the spokesman said the Attorney-General was unavailable to comment.

Justice Atkinson said the convicted men, the cook and deckhand aboard a boat intercepted in March last year, had four children between them aged between 17 and three, who would "suffer dreadfully" without their fathers.

Jufri, 41, the cook, was the sole income-earner for his family of four, who live in an 18-square-metre hut with a dirt floor. His wife now works shelling crabs for 1.5 cents an hour.

The other man, Nasir, 42, has two children aged 17 and eight who now have no breadwinner. Nasir is skimping on essentials such as soap and toothpaste so he can send some of his $8 daily prison allowance back home.

"The serious offenders at whom (mandatory sentencing) must surely be aimed are those who profit from people-smuggling . . . rather than people like yourselves who are certain to be caught and who live in such impoverished circumstances that the small amount of money you would make from a journey such as this makes it worth taking the risk," Justice Atkinson said.

Most frequent users of Legal Aid are under 18: study

Anna Patty | SMH | 27 December 2011

PEOPLE under the age of 18 are the most frequent users of Legal Aid services in NSW, research has found.

While the bulk of people who turn to Legal Aid for free legal assistance are adults charged with criminal offences, they usually only use the service once or twice.

Legal Aid NSW has profiled its most frequent users for the first time and has found that 90 per cent are children or young people under the age of 21.

The findings, published in its latest annual report this month, show the average age of young people making their first contact with Legal Aid is 13.

The study looked at Legal Aid clients who were returning for further help and who may not be getting their needs met.

Access to Legal Aid is means- and merit-tested for adults, but not for anyone under 18.

The study, which looked at the 50 most frequent users of the service between July 2005 and June last year, found one young person had used the service 159 times. More than three-quarters of frequent users of the service were Australian-born males.

''Not surprisingly, our high service users were concentrated almost entirely in our criminal law practice,'' the report said.

Three-quarters of the young people in frequent use of Legal Aid had been victims of neglect or had experienced violence in the home as children.

Almost half had been diagnosed with mental illness, a third had cognitive impairment and two-thirds had experienced being homeless.

''Too often, court is the critical and common intervention point,'' the report said.

''We share our high service users with many other agencies involved in the criminal justice and human services systems.''

The researchers suggested agencies including the Department of Community Services and Legal Aid could be working together more effectively to help resolve the complex needs of youth requiring frequent use of legal services.

The researchers said other studies had shown the number of children in out-of-home care had doubled between 2005 and 2010.

A review of the NSW juvenile justice system had said the increasing number of children and young people involved in child protection and out-of-home care systems suggests there will be an increasing number of children and young people at risk of entering the juvenile justice system in coming years.

A Human Rights Agenda for the new Attorney-General, continued

Human Rights Law Centre | December 2011

Australia’s new Attorney-General, Nicola Roxon, was sworn in on 14 December 2011.

We asked some of Australia’s leading human rights advocates, activists and academics to tell us, in less than 100 words, what the Attorney’s top human rights priority or initiative for 2012 should be. We’ll be sharing more of them with you in the coming days and weeks.



John Tobin is an Associate Professor at Melbourne Law School and a member of the HRLC Advisory Committee

The prioritisation of efforts to address human rights considerations is always fraught with danger. But the reality of limited resources means that prioritisation is a fact of political life. Given this reality, the top priority for the new Attorney General in 2012 must be ensuring the successful implementation of the Human Rights (Parliamentary Scrutiny) Act 2011. The requirement to scrutinize all new legislation in light of international human rights standards must not be reduced to a shallow process of compliance. Instead, the Attorney General must lead from the front and demonstrate that substantive engagement with international human rights standards leads to more effective and equitable legislative outcomes.

Lucy McKernan is Manager of Strategic Projects with the Public Interest Law Clearing House (Vic)

That a five year old girl can be lawfully refused admission to a government funded kindergarten on the basis of her parents’ same-sex relationship, is a disgrace. Even the Acting Bishop for the relevant Catholic diocese was ‘appalled’ by the discriminatory decision, yet Australian laws allow this form of discrimination by religious organisations.

Attorney-General Roxon should remove the blanket exceptions for religious organisations permitting them to discriminate on the grounds of sex and age. At the very least, the Attorney should prohibit discrimination by religious organisations in respect of their government funded functions and require greater transparency from organisations seeking to rely on the exceptions. Importantly, the Attorney should also show leadership by encouraging her State counterparts to follow suit.

Les Malezer is Co-Chair of the National Congress of Australia’s First Peoples

The priority for Aboriginal and Torres Strait Islander Peoples is to gain recognition and respect as first peoples, and acknowledgement and protection of Indigenous rights.

In 2012, the Attorney General must make the Human Rights Framework effective, leading cultural change across government. For Aboriginal and Torres Strait Islander peoples this includes giving the recommendations and reports of the Australian Human Rights Commission, including the ATSI Social Justice Commissioner, real authority, not just political lip service. The Government must implement and be accountable to reports on human rights by national and international authorities. There should also be a focus on judicial and legal education, to ensure legal professionals understand Indigenous rights and can properly and impartially resolve cases regarding those rights.

Lucy Adams is a Senior Lawyer with the PILCH Homeless Persons’ Legal Clinic

On census night in 2006, approximately 105,000 Australians were homeless, including approximately 7,480 families. Australia needs a human rights-based framework for addressing homelessness.
InVictoria, we have seen how legislative protection of human rights can work in practice through the Victorian Charter of Human Rights. The HPLC has relied on the Charter’s binding obligations on public bodies – to give proper consideration to human rights in decision-making and to act compatibly with human rights – to avoid the eviction of 42 people, including 21 children, from social housing into homelessness.

Enforceable human rights obligations, including national homelessness legislation that enshrines the right to adequate housing, are critical to Australia’s ability to effectively prevent and address homelessness.

"Panic" by David Marr: on John Hatzistergos

David Marr | SMH | 17 April 2008 

That this is the last civilised nation not to guarantee its citizens' rights counts for nothing. We don't have foot and mouth disease or video games for grown-ups. So what's to stop us quarantining Australia against bills and charters of rights?

The Attorney-General, John Hatzistergos, has been thundering against them lately in the best traditions of NSW Labor. Bob Carr was one of the wittiest and most determined opponents of handing out rights we could enforce in court. It's something one-party states never willingly allow.

"We do not live in a perfect society and never will," Hatzistergos solemnly informed the Sydney Institute last week. "There may well be laws perceived by some to be unjust in our community. It is however wrong to suggest that they can be remedied by enacting charters with wide-ranging values and all will be well."

If only our grim-faced Attorney-General had been around in 1791 to tug James Madison's sleeve and stop him making the historic mistake of presenting the US Congress with constitutional amendments guaranteeing free speech and a free press; the freedom to assemble and the freedom to worship; the assurance that life and liberty will only ever be infringed by due process of law - and, alas, the right to bear arms.

Two-and-a-bit centuries later in Australia, the courts are all but powerless to prevent these rights being legislated away. And a good thing too, says Hatzistergos: "Transforming social and political questions into legal ones … forces the courts to start making decisions … for which they do not have democratic legitimacy."

That's American talk. America gave the world the great model of entrenched rights and lately America has bred mighty rhetoric attacking the courts as undemocratic for protecting them.

The wisdom of experience? Yes and no. Hatzistergos and his tribe are mouthing the words of those sore losers whose democratic sensibilities are offended by the secular, decent revolution pulled off by the US Supreme Court in the last half century that began in 1954 with Brown v Board of Education of Topeka, ending racial segregation of schools.

RIP Sailesh Rajan

Reasonable Grounds today pays tribute to Aboriginal Legal Service solicitor, Sailesh Rajan, who  passed away this morning, after a thankfully short battle with cancer. He was only 29.

Sailesh arrived in the Redfern office of the ALS in 2006 as a PLT volunteer and quickly rose through the ranks as a solicitor, first in Western New South Wales, and later in Parramatta, before finally settling in Redfern. 

By 2011, he had ascended to being a senior solicitor of the Service, routinely appearing in summary hearings and committals, as well as District Court sentences and appeals. 

RG remembers him for his dedication, generosity, intelligence and endless curiosity.

He will be very sadly missed. Our sincere condolences go to his family, friends and colleagues at the ALS. 

Constitutional reform crucial to indigenous wellbeing

Noel Pearson | The Australian | December 24, 2011

There is an existential angst about the place of indigenous cultures in the Australian nation.

I HAVE been close to the epicentre of indigenous policy for 20 years now. During this time I have dealt with premiers and prime ministers, ministers and public servants, both great and small, smart and dumb, committed and careless.

I think I have seen every permutation of policy and program, and the swings of the policy pendulum from left to right and back again. Real progress has been made in some areas, but the larger picture is one of waste and failure.

Like other Australians who take this policy scene to heart, my moods swing from ebullient optimism to deep depression. The small gains lift me but the entrenched failures stricken me.

My experience is less than half that of Lowitja O'Donoghue, Marcia Langton and Galarrwuy Yunupingu. I recall sitting on the beach at Yunupingu's Arnhem Land outstation with former minister Mal Brough and hearing Yunupingu list the names of the prime ministers and ministers he had dealings with since the days of the Gorton government. His story could have been titled Groundhog Day.

It is not for nothing that the one conviction I share with these leaders is that constitutional reform which properly defines the place of indigenous Australians in the nation is a matter of first importance.

Gay marriage debate has a long way to go

Frank Brennan | Eureka St | 6 December 2011

On the weekend the ALP party conference voted to amend the party platform on same sex marriage. The platform now states: 'Labor will amend the Marriage Act to ensure equal access to marriage under statute for all adult couples irrespective of sex who have a mutual commitment to a shared life.'

Churches and religious organisations will retain the freedom to perform marriage ceremonies only for a man and a woman eligible for marriage under the rules of the church or organisation.

The conference voted by 208 to 184 to allow Labor MPs a conscience vote on the issue. Tony Abbott continues to insist that Liberal MPs will not be granted a conscience vote. This will change. If it doesn't, several Liberals, including Malcolm Turnbull, will cross the floor. It could even become a leadership issue in the party.

Within the life of the present parliament, our elected leaders will probably be voting on the issue, and in all likelihood the members of all major parties will have a conscience vote.

How should the conscientious Catholic member of parliament vote? If I were a member of parliament, I would support a law for the recognition of civil unions similar to the present United Kingdom law, and I would vote against any bill extending the definition of marriage to include the union of two men or two women.


I would do so because I think the State should not discriminate against couples who have a mutual commitment to a shared life (whatever their sexual orientation), while affirming that the bearing and nurturing of the children of the union is a constitutive good of marriage (even though not all marriages produce children).

The cruelty and injustice of a poorly funded legal aid system

Elizabeth O'Shea and Nicole Papaleo | The Age | December 22, 2011

Imagine being jailed for something you didn't do and help is denied.

TERRY Irving found himself in the wrong place at the wrong time. In 1993, an armed robber held up a bank in Cairns and stole $6230. Meanwhile, Irving was at the nearby pub playing pool. A relaxed and generous man, he lent his car to a couple of blokes for the afternoon. He did not think further of it until he heard the police reporting information about the robbery over the radio, including his car registration. Irving was arrested and charged, despite not matching the physical description.

Irving's problems became a nightmare when his barrister failed to show up and he met his new one on the morning of the trial. Despite the hearing being listed for three days, he was convicted that afternoon and sentenced to eight years in prison.

Irving was denied legal aid funding for an appeal. He went on to represent himself and, unsurprisingly, lost.

Fortunately, Irving met legal aid solicitor Michael O'Keeffe while in jail. Many inmates will tell you they are innocent, but O'Keeffe was good enough to listen.

Together, they decided to take Irving's case to the High Court, a task that has cost countless hours of their lives. They applied for legal aid to do so. This was again denied; the reason is still unclear. When the High Court learnt of this, the judges immediately adjourned the hearing and ordered Irving to get legally aided representation.

With legal aid finally granted, the result was breathtaking. The chief justice at the time, Sir Gerard Brennan, expressed ''the gravest misgiving about the circumstances of this case … [It is] a very disturbing situation. And in all of this, the accused has been denied legal aid for his appeal.''

The conviction was quashed, unopposed by the Crown. A retrial was ordered, but Irving had to wait another year in limbo before the State of Queensland decided not to proceed with another prosecution.

Judge Williams steps down

Ira Glass | This Amercian Life | 20 December 2011

Judge Amanda Williams, who was the subject of our episode "Very Tough Love" has announced that she'll resign from the bench as of January 2nd. Because she's stepping down, ethics charges brought against her by the state's Judicial Qualifications Commission will be dropped.

Earlier this month, the Commission added two charges to the original 12 counts it filed in November. One of those counts accused Judge Williams of allowing her lawyer in the case, John Ossick, to represent litigants in cases she was still presiding over from the bench. The other accused her of putting a man into drug court even though there were no drug charges against him, because he was the nephew of attorney Jim Bishop. When a drug court staffer questioned the decision, according to the charges, Judge Williams replied "Jim Bishop has been there for me for years and years and years. He has never asked me for anything, ever, in the entire time I have been on the bench, to use my power in any case to do anything for anybody and he's asked me to do this. ... And it's that damn simple." She also said, according to the filing: "It's called being a Bishop. And I don't want to have any more conversations about it. I know I'm doing the wrong thing, "

Jim Bishop has denied asking for any favors from Judge Williams.

Judge Williams will be stepping down after 21 years on the bench. In a consent order, she agreed not to seek other judicial offices.

The JQC's jurisdiction is limited to removing judges from the bench. Judge Williams can still face criminal charges for some of the JQC's allegations.

Here's the AP story about Williams' resignation.

Link to the original podcast of "Very Tough Love"

Is Prison Culture Killing Our Children?

A. Scott Washington, J.D. | Hip Hop Justice | December 2010

A factor that cannot be ignored when discussing urban violence is over reliance on incarceration in this country. To ignore the causal connection between contemporary criminal justice policy and the rise in youthful urban violence is turning a blind-eye to factors that are rotting the foundation of contemporary urban society.

There are nearly 2.4 million persons incarcerated in state or federal prisons in this country. Half of those persons are African Americans. Obviously, identifiable behavior patterns are associated with African Americans being disproportionately incarcerated. On the other hand, the intersection of public policy and poverty has collided with the forces of history, race, economic theory and human vulnerability to create a social pathology like none seen before in this country. As a result, “prison culture” is now firmly embedded in inner city America.

Following 35 years of tough on crime policy, the affect of generational incarceration and recidivism has created an environment ripe for this new subculture within the inner city. This subculture is fueled by the extremely violent and brutal customs and values that were born within the concrete walls of this country’s correctional institutions.

Prison culture, which is now abundantly present in the inner city, is directly connected to the extreme and pervasive violence we are experiencing in the African American community. These conditions grow exponentially, parallel to the prison population in this country. This phenomenon is cyclical and, as the statistics suggest, actually increase violent criminal activity in both the inner city and suburban communities. Therefore, community safety is significantly compromised by the tough on crime mentality associated with contemporary criminal justice policy; particularly, this country’s drug control efforts that have become the fundamental premise of our national crime policy.

Our children have become the collateral damage of contemporary American criminal justice policy. For many inner city residents and African American children in particular, criminal justice policy and poverty have contributed to a blurring of cultural, as well as social values. During the welfare reform era we spoke about children raising children. What prison culture has resulted in today is children raising themselves. A significant proportion of our inner city youth today are the children of prisoners that inhabit this nation’s prisons. When these children reach adolescence they are typically raising themselves in the bowels of contemporary urban America.

What criminal justice policy and poverty have perpetuated in this country is the social disenfranchisement of African American children. The forces of public policy, poverty, and human vulnerability have conspired to create this new and peculiar universe within the inner city. The apparent evolving nature of this new inner city subculture and its intersection with poverty and social pathology has created an environment ripe for youthful urban violence to flourish.

The questions that must be raised here are: 1) what are we going to do with the massive numbers of unskilled, undereducated, and often, recalcitrant felons that will be returning to our communities over the next several decades (98% of the 2.4 million prisoners in this country will be released)? 2) When will policy be implemented to deal with the flaws and inadequacies in current drug control policy? 3) When are our lawmakers going to present concrete solutions for problems that cannot be conquered by locking up millions of Americans?

A. Scott Washington, J.D. is a formerly incarcerated person who has earned a Bachelors Degree in Urban Studies with an emphasis on contemporary urban problems and a Juris Doctor Degree from the University Of Dayton School Of Law. Also, he is Assistant Professor of Criminal and Social Justice at the University of St. Francis in Joliet, Illinois. A. Scott Washington also co-hosts a radio program entitled, “Hip Hop Justice Radio” which airs Tuesdays & Wednesdays from 6-8 PM CT on Party 934 and 94.9 FM, Hudson Valley New York.

Aboriginal crime and punishment: spending on jails but not outcomes

Inga Ting | Crikey | 16 December 2011

The rise of a punitive "law and order" culture in Australia has had a profoundly racial dimension, manifested in soaring rates of indigenous incarceration. The number of indigenous adults held in the nation's jails has increased for the 11th year in a row -- as Crikey revealed in part one yesterday -- while over the past decade the indigenous imprisonment rate has outstripped the non-indigenous rate by a factor of 11, ballooning more than 47%. The non-indigenous rate grew 4% in the same period.

This shift towards the use of crime and punishment as a tool of social control -- known as "governing through crime" -- has led to the rise of a "risk agenda" that concentrates on the risk of crime occurring, not just actual crime. In this society of heightened fear and increased surveillance, punishment is increasingly targeted at those on the periphery. And no group lies more at the periphery than indigenous Australians.

That outcomes for Aboriginal Australians are deteriorating in all but a select few areas has been confirmed by virtually every government report released this year. Here is an extract from just one -- the Productivity Commissions latest Closing the Gap report, Overcoming Indigenous Disadvantage: Key Indicators, released in August:

"Nine years after this series was commissioned, there is still a considerable way to go ... Wide gaps in average outcomes remain across most indicators. Of the 45 quantitative indicators in the report, for example, available data show improvement in outcomes for only 13 indicators ... For 10 there has been no real improvement, while for another seven, including social indicators such as criminal justice, outcomes have actually deteriorated."

Some of the most shocking indicators are in the area of health, where hospitalisation rates are vastly higher for indigenous men and women than for other Australians.

Ratio of indigenous to non-indigenous rates of hospitalisation

Reason for hospitalisation                                            Women               Men

Injuries caused by assault                                             31                        7

(i.e. hospitalisation rate for indigenous women 

31 times higher than the rate for 

non-indigenous women) 

Injuries caused by non-fatal family violence assault      31                        25

Mental and behavioural disorders                                  1.5                      2.2

Chronic disease:

End-stage renal disease                                                 15                        8
Diabetes                                                                        5                         3.5
Circulatory                                                                    2                         1.5

According to the same report, indigenous adults indicate having a disability that profoundly or severely restricts core activity at around twice the rate for non-indigenous people. They are also twice as likely to be recent users of illicit substances as other Australians and four times as likely to be homeless.

David Woodroffe, managing solicitor in criminal law at the North Australian Aboriginal Justice Agency in the NT, says the Northern Territory intervention has invested heavily in institutions focused on punishing criminal behaviour, while providing minimal services to help those who turn to crime in the first place.

"There’s more policing in communities -- more police stations and police posts -- so more people will come to the attention of police, will be charged, get into the [criminal justice] process. But there’s no corresponding in relation to other services ... there’s no youth diversion programs, there’s no rehabilitation services, etc. So basically, government’s providing an impetus for detecting crime and prosecuting crime but there’s not the services there for reducing crime or turning people away from it. And that’s why we see, with the lack of services like that, people becoming entrenched in the criminal justice system."

A Human Rights Agenda for the new Attorney-General

Human Rights Law Centre | 15 December 2011

Australia’s new Attorney-General, Nicola Roxon, was sworn in on 14 December 2011.

We asked some of Australia’s leading human rights advocates, activists and academics to tell us, in less than 100 words, what the Attorney’s top human rights priority or initiative for 2012 should be. We’ll be sharing more of them with you in the coming days and weeks.



Catherine Branson QC is President of the Australian Human Rights Commission

My hope is that the new Attorney-General’s priorities will include bringing along her fellow ministers and parliamentarians in making the new human rights scrutiny processes effective and seeing through the consolidation of federal discrimination laws process to create an effective national equality law. She should also ensure the ratification of the Optional Protocol to the Convention against Torture and establish a national system of monitoring places of detention. Finally, the Attorney must ensure that human rights considerations inform policy in all areas of her portfolio, for example in security policy where there is an urgent need for a system enabling review of adverse security assessments.

Nicolas Patrick is a Partner and Head of Pro Bono with DLA Piper

I would prioritise the human rights of people in places of detention. A significant proportion of Australia’s prison population suffer from mental illness. There is a causal and consequential link between imprisonment and mental illness. Australia is warehousing people with mental health problems in prisons, where mental health care is entirely inadequate.

The number of juveniles in detention is also a major concern, along with the over-representation of Aboriginal and Torres Strait Islander peoples. These issues raise significant concerns with respect to Australia’s obligations under the Convention against Torture, the Convention on the Elimination of Racial Discrimination and the International Covenant on Civil and Political Rights and require the urgent attention of the Australian Government.

Professor David Kinley is Chair in Human Rights Law at Sydney Law School

Dear Attorney,

Pay very close attention to the newly established parliamentary human rights scrutiny committee. This is a sleeping giant, whose potential power and range is underappreciated; indeed largely unnoticed. Having authority to scrutinise all bills for compliance with all Australia’s international human rights obligations goes far beyond the scope of any equivalent mechanism overseas, and it will embarrass and expose. So, heads up for the enhanced human rights scrutiny of the next wave of immigration, anti-terrorism or workplace relations proposals.

PS. Don’t take up smoking this year.





Ed Santow is Chief Executive Officer of the Public Interest Advocacy Centre

Over the last few years, the Australian Government has made progress in improving the protection of our basic rights. However, Australia still lacks a comprehensive human rights law. This increases the vulnerability of already disadvantaged people — like Indigenous Australians, people experiencing homelessness and people with a disability. To rectify this, the new Attorney-General should take the lead in fully implementing the recommendations of the 2009 National Human Rights Consultation, including by enacting a comprehensive Human Rights Act.

Nicky Friedman is Head of Pro Bono & Community Programs with Allens Arthur Robinson

The new Attorney should ensure that asylum seekers can access and exercise their legal rights.
Since the High Court’s decision in M61, which confirmed that review by the courts is available to asylum seekers who are processed offshore, legal assistance providers have been hit with floods of applications for legal representation in judicial review proceedings. Despite the huge increase in demand, no extra funds have been provided and legal aid and community legal centres are turning away desperate people. The Attorney should provide funds to boost the capacity of refugee and immigration community legal centres and legal aid commissions to deal with these matters immediately.

Professor Sarah Joseph is Director of the Castan Centre for Human Rights Law

There are many human rights priorities for Australiain 2012, such as properly implementing the new Human Rights (Parliamentary Scrutiny) Act and vastly improving this country’s impoverished refugee debate. As the number one priority, however, I would say that the Australian Government must take the lead in vigorously supporting amendment of the Australian Constitution to better recognise and protect the rights of Indigenous peoples, and to educate Australian people about the need for such amendment. A campaign against Constitutional recognition has already begun (see eg, J Albrechtsen inThe Australian on 14 December). The government and the opposition must get on the front foot to counter the scaremongering.

Aboriginal crime and punishment: incarceration rates rise under neoliberalism

Inga Ting | Crikey | 15 December 2011

The number of indigenous adults held in the nation’s jails has increased for the 11th year in a row, despite the nation’s prisoner population falling for the first time in a decade.

According to the latest Australian Bureau of Statistics data, the indigenous prisoner population increased by 1% in the year to June 2011 while the total prisoner population dropped by 2%. The gap between indigenous and non-indigenous imprisonment rates grew by 0.1%, with indigenous Australians now 14.3 times more likely to be incarcerated than non-indigenous Australians. Today, about one in four prisoners are indigenous even though indigenous Australians make up just 2.5% of the general population.

While the reduction in the national prisoner population makes a welcome change, the fact remains that it has expanded by 30% over the past decade despite falling crime rates across the nation. At first glance, this doesn’t make sense: crime rates have decreased dramatically in the past decade (see the complete data) while incarceration rates — especially indigenous incarceration rates — have continued to climb.

The problem lies in the common assumption that punishment is a direct outcome to criminal behaviour, says Chris Cunneen, Professor of Justice and Social Inclusion at James Cook University and a criminologist with more than 20 years’ experience in indigenous criminal justice. “Sentencing and imprisonment is not related to crime. It’s a function of government policy,” he told Crikey. “The fact that we’re locking up more people is … really about changes to law and practice.”

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.