To keep me safe from harm? Transgender prisoners and the experience of imprisonment

The experience of imprisonment for a transgender person is often a terrifying one. He or she is extremely vulnerable in such an environment from sexual violence from other prisoners. In addition, he or she may be exposed to inadequate or inappropriate medical care. Consequently transgender prisoners are often denied the protection offered by role of law. A significant reason for this treatment is the erasure of the transgender experience in informing the nature of the prison regime. In particular, the failure to give sufficient weight to gender self identification by transgender prisoners exposes them to risks which other prisoners do not have to endure. It is suggested that the only way to reduce such harm is through the cultivation of a prison regime based upon the lives of transgender prisoners.

Doing harder time : the effects of imprisonment as a factor in sentencing

A strong link between the offender’s ill-health and the likely adverse effects of imprisonment needs to be made if the court is to be persuaded that this should be a mitigating factor in sentencing.

(Particularly) Burdensome prison time should reduce imprisonment length — and not merely in theory

Imprisonment is the harshest sanction in our system of law. It is a sanction that isincreasingly imposed by the courts. The severity of imprisonment as a sanction stemsprincipally from the considerable restrictions it imposes on an individual’s liberty.However, the deprivation experienced by a prisoner can vary considerably, depending onthe strictness of the prison regime in which the prisoner is confined and his or her state ofhealth. Prisoners subjected to non-mainstream conditions almost invariably suffer morethan those in normal conditions. There is no settled approach regarding the extent towhich prison conditions should impact on the length of a prison term. The jurisprudencein this area is inconsistent. It is particularly unsettled when the additional burden stemsfrom subjective matters relating to an accused, such as ill health. In this article we makerecommendations regarding the manner in which prison conditions should impact on thelength of a prison term. The main recommendation is that prisoners who spend time inparticularly burdensome conditions should have their sentence reduced by a factor of0.5 days for each day spent in such conditions. In this article we also recommend thatAustralia should adopt a model similar to those which exist in some Scandinaviancountries, whereby the only deprivation stemming from imprisonment is the loss ofliberty. This would mean that few prisoners would ever be subjected to particularlyburdensome conditions. This would make many of the recommendations in this paperobsolete. However, there is no evidence that Australian prison conditions are about tofundamentally alter. Hence, the recommendations will remain pragmatically relevant inthe foreseeable future.

‘Cemented in their cells’: a human rights analysis of Blessington, Elliott and the life imprisonment of children in New South Wales

In 2010, two Australians, convicted in childhood of rape and murder, lodged a joint submission with the United Nations Human Rights Committee, claiming that successive changes to sentencing legislation in New South Wales breached their human rights by denying them any meaningful prospect of release. In this article, we examine the political, legislative and procedural moves that have resulted in Australian children being sentenced to life without parole or release. We argue that successive legislative changes in various Australian jurisdictions have resulted in a framework for sentencing decisions that is considerably out of step with international legal standards for criminal justice. These increasingly punitive legislative changes exacerbate Australia’s already declining record of cooperation with UN processes, and reveal Australia’s reluctance to respect the legitimacy and authority of international law. Against this troubling context, the views of the Human Rights Committee serve as a much-needed reminder about the importance of a principled approach to child sentencing that forecloses neither the goal of rehabilitation nor the prospect of release and reintegration.

No prospect of release: Kevin Crump and the human rights implications of life imprisonment

A NSW court last week dismissed Kevin Crump’s latest appeal against his natural life sentence. Crump, who has served nearly 42 years in prison for murder, has been formally denied any prospect of a meaningful life outside prison walls.

The decision provides a timely opportunity to reconsider the viability of terms of life without parole. It further entrenches the use of terms of life without parole in Australia despite moves overseas to restrict – and in some cases eradicate – them.

Home truths about home detention

The Victorian Parliament has recently introduced a Bill which implements home detention as a sentencing option. Home detention is an intuitively appealing reform. The logic behind the proposal seems obvious. Prisons are expensive to run. There are too many offenders in prison. So let's take the cost out of prison by turning the homes of offenders into prisons: classic, user-pays, cost-shifting economics. The level of superficial appeal of the argument in favour of home detention is matched only by the depth of the fallacies underpinning some of the fundamental premises. The most basic of which is the assumption that offenders who are candidates for the new sanction should be in detention (of any kind) in the first place. Further, the narrow objective of reducing imprisonment is misguided. It should not be elevated to a cardinal sentencing objective?otherwise total success could be achieved by simply opening the prison gates. There are also other concerns about the appropriateness of home detention. The degree of pain it inflicts in many cases is questionable and it may also violate the principle that punishment should not be inflicted on the innocent. After examining the arguments for and against home detention, this article suggests the approach that should be adopted to achieve enlightened and meaningful sentencing reform.

Excessive force used in making an arrest: does it make the arrest ipso facto unlawful?

The purpose of this article is to consider whether or not the use of excessive force in effecting an arrest makes the arrest ipso facto unlawful at common law. With a dearth of appellate court authority on point in either Australia or the United Kingdom, the question is presently open. It is my argument that as force is not a minimum condition of an arrest, its excessive use will not, therefore, make unlawful an otherwise lawful arrest. This conclusion is a matter of some import. It exposes an arrester to civil and possibly even criminal liability for assault but not to an action for false imprisonment. It may also have practical repercussions for the possible discretionary exclusion of evidence on public policy grounds. In theory, it should not matter whether excessive force made an arrest unlawful or not, for the public policy discretion permits a judge to exclude evidence illegally or improperly obtained. But common sense suggests that a judge may not be so likely to exclude evidence when the relevant conduct amounts only to police impropriety not illegality.

R v Scobie, finally taking the Royal Commission into aboriginal deaths in custody seriously?

Royal Commission into Aboriginal Deaths in Custody examined in the context of R v Scobie - the use made of the Commission's recommendations by Justice Gray in R v Scobie - questioning the value of imprisonment for certain types of offenders.

The need for a higher custody threshold for indigenous offenders in Victoria

Over-representation of indigenous persons in the criminal justice system has changed little since the Royal Commission into Aboriginal Deaths in Custody (RCIADIC) - claim by the Victorian Department of Justice that a key recommendation of RCIADIC had been implemented, namely that imprisonment should be a sentence of last resort for indigenous offenders - how to ensure that imprisonment is a sanction of last resort when indigenous prisoners present for sentence.

Australian sentencing : principles and practice

Australian Sentencing: Principles and Practice explains the rules, principles, policies and practices that underpin the manner in which people are punished for criminal behaviour in Australia. As well as dealing with sentencing law today, the book provides an extensive analysis of the wider policy, moral, and political consideration which shape sentencing law. It analyses and evaluates existing standards and practices, and suggests how sentencing law should be reformed so that it operates in a fairer, more efficient and effective manner.

Content: Part A: 1. The nature of sentencing and theories of punishment; 2. Plucking figures from the air: the instinctive synthesis; 3. The objectives that are attainable through sentencing; 4. High Court sentencing jurisprudence; Part B: 5. The principle of proportionality; 6. Aggravating factors; 7. Mitigating considerations; 8. The relevance of a guilty plea to sentence; 9. The relevance of prior criminality; 10. Aboriginality; Part C: 11. The nature of criminal sanctions; 12. Imprisonment; 13. Intermediate sanctions; 14. Discharges and bonds, fines and disqualifications; Part D: 15. The way forward ? strategic sentencing.

Excess and mimesis in organization theory: emancipation from within?

In organizational analysis it can be argued that 'radical separatism'—in the guise of the original 'agenda' for Radical Organization Theory (see Benson, 1977a; Burrell and Morgan, 1979; Clegg and Dunkerley, 1980) or more recently that for Critical Management Studies (see Alvesson and Willmott, 1992; Fournier and Grey, 2000; Casey, 2002; Grey, 2004)—has failed to breach the hegemony of functionalist orthodoxy, and notably so when it comes to practice. Given this failure, we speculate, upon the potential for a different emancipatory approach, one based theoretically on the fluid process of 'undecidability'. Unusually our approach attempts to undermine the conventions of functionalist organization theory from within. In brief, we speculate upon the adoption and enactment of Luce Irigaray's (1985, 1991) strategy of mimicry as a means to illuminate the notion of 'excess' in organization theory. To liberate the feminine, Irigaray mimics the symbolic representation of the female body to excess so as to expose the contradictions of phallocentric discourse. When applied to organization theory, this sees a deliberate mimicking of critiques of radical separatism so as to make explicit the latter's imprisonment within functionalism. Through excessive mimicking of the functionalists' critique, the radical/critical organization theorist may become cognizant of, but perhaps not so subjugated by, the hegemony of functionalist discourse.