Is a 24 hour ban such a bad thing?

A key element in Australian policing in recent years is the growth of police-imposed discretionary summary justice. The rise and impact of on-the-spot fines, infringement notices, exclusion orders and move-on powers enable police-initiated resolutions and punishments to be imposed, often without legal or judicial intervention. These operational policing mechanisms reflect underlying pressures to reduce costs, ease the burden on the court system, and speed up the decision-making process, but when viewed from a human rights perspective the potential consequences are significant. Focusing on the legislative development of banning notices in Victoria, this article highlights the impact of such a police-imposed punishment upon individual due process procedural protections. Banning notices deny the recipient the right to conduct a defence, undermine the presumption of innocence, and conflate notions of pre-emption and punishment. The rhetoric upon which the banning notice legislation is predicated obviates meaningful scrutiny of the diminution of individual rights that are implicit in its enactment. A perceived ‘need’ to control disorder and ‘re-balance’ justice to prioritise community protection is used to legitimise any consequential impact upon the principles of criminal law, due process and human rights.

An examination of stakeholder attitudes and understanding of therapeutic jurisprudence in a mental health court

Mental health courts represent a key component of contemporary responses to mental illness and disability in the criminal justice system, and yet there is uncertainty about how these courts should balance their punishment and treatment roles. This paper reports an analysis of interviews with court professionals which considers their understanding of the rationale underpinning an Australian mental health court, its effectiveness in achieving its criminal justice and clinical goals, and of broader notions of therapeutic jurisprudence. This reveals considerable support for diversionary mental health court programs of this type and professional confidence that this type of program is effective. However, the analysis also highlights conflict in the practice frameworks of the different professional groups who regularly contribute to the operations of the court. Suggestions to enhance service delivery are offered.

Performance assessment, vulnerability, human capital, and the allocation of aid among developing countries

Developing country performance with respect to economic policies and institutional behavior is a common criterion for the allocation of aid among recipient countries. This paper examines how performance is used, arguing that performance is too narrowly defined. A more appropriate definition is one that controls for the economic vulnerability and human capital of developing countries. Econometric analysis of cross-section and panel data is presented that supports this contention. The paper also contends that performance and exogenous economic shocks are likely to be pro-cyclical. This implies a double punishment when aid is allocated according to performance. Evidence of such punishment is also provided. The paper concludes by arguing that economic vulnerability and human capital variables should augment performance measures in aid allocation decision-making.

A rational (unapologetically pragmatic) approach to dealing with the irrational - the setencing of offenders with mental disorders

People with mental impairment are so heavily over-represented in prisons and jails that jails have been labeled “warehouses for the mentally ill.” In many parts of the United States, there are more mentally impaired offenders in prisons than in hospitals for the mentally unwell. Offenders laboring with impaired mental functioning are often regarded as being less morally culpable for their crimes and hence less deserving of punishment. However, the reduced mental functioning of offenders does not diminish the harm caused to victims. People are no less dead if mentally unwell offenders kill them rather than offenders who are mentally sound. This tension has proven an intractable problem for sentencing law and practice. There are no clear, fair, and effective principles or processes for accommodating impaired mental functioning in the sentencing inquiry. It is an under-researched area of the law. In this Article, I explore this tension. Key to ascertaining the proper manner in which to incorporate mental illness into the sentencing system is clarity regarding the importance of consequences to the offender, as opposed to moral culpability. I analyze current approaches to sentencing offenders with mental health problems in both the United States and Australia. Despite the vastly different sentencing regimes in these countries, both systems are deficient in dealing with mentally ill offenders, but for different reasons. I propose a solution to administering sentences to offenders with a mental disorder that is equally applicable to both sentencing systems. Mental impairment should mitigate penalty. However, in determining the extent and circumstances in which it should do so, it is cardinal not to lose sight of the fact that those who are sentenced for a crime are not insane, and they were aware that their acts were wrong--otherwise they would not have been found guilty in the first instance. I argue that a standard ten percent sentencing discount should be accorded to offenders who were mentally disordered at the time of sentencing. There should be an even more substantial discount when it is likely that offenders will find the sanction--in particular imprisonment--more burdensome due to their mental state. This difference would ensure some recognition of the reduced blameworthiness of mentally impaired offenders and the extra hardship that some forms of punishment inflict on mentally *2 ill offenders, while not compromising the important objectives of proportionality and community protection. The only situations when mental disorder should not mitigate penalty are when the offender is a recidivist, serious sexual or violent offender. In these circumstances, the interests of the community are the paramount consideration. The analysis in this paper applies most directly when a term of imprisonment is imposed. However, the reasoning also extends to the threshold decision of whether or not a term of imprisonment should be imposed in the first place.

Queer penalities: the criminal justice paradigm in lesbian and gay anti-violence politics

Building upon the renewed attention to the ways in which criminology may be ‘queered’ (or not), this article explores how a criminal justice paradigm has influenced lesbian and gay politics through an investigation of anti-homophobic research and lobbying focused on violence and harassment. It asks: What place does criminal justice occupy within sexual politics? Using the Australian state of Victoria as a case study, the article examines how the lesbian and gay anti-violence movement has utilized criminal justice theories, methodologies and approaches to explain and attempt to remedy ‘homophobic hate’. It provides three inter-connected examples of the permeation of criminal justice logics: (1) the victimization survey method, (2) the focus on police reform, and (3) elements of a punitive public discourse surrounding homophobic hate crime. These examples are nevertheless complicated by the persistence of institutionalized violence and state failure to ‘protect’ lesbian, gay, bisexual and transgender (LGBT) lives. These discursive practices contribute to ‘queer penalities’, a term used to describe the ways in which lesbian and gay movements shape and contest the social meaning of terms such as ‘crime’, victimization and punishment.