Poor, Powerless and in Trouble with the Law” Are Part of Gary Sullivan’S DNA

Contents

Foreword 1 Executive summary 2 Recommendations 4 Prologue 6 1 Purpose of this Fellowship 8 2 Poverty and powerlessness 10 3 The courts 12 3.1 How traditional courts work 12 3.2 Problem-solving courts 14 3.3 Integrating problem-solving principles into our justice system 18 Recommendations 23 4 The infringements system 24 4.1 Infringements and the justice system 25 4.2 The growth of the infringements system 25 4.3 The spread of the infringements system 26 4.4 The implications of the expansion of the infringements system 27 4.5 How the infringements system can be improved 28 4.6 Collateral benefits of reform of the infringements system 29 Recommendations 29 5 The role of lawyers and community legal centres 30 6 Community legal centres 32 Recommendations 35 Appendix: Problem-solving courts in North America 36 References 49 Foreword

Those people in the community who find themselves “poor, powerless and in trouble with the law” are part of Gary Sullivan’s DNA. Gary has been my colleague and friend for thirty years; I could think of no person more qualified to be the author of this report. For those of us who have been privileged to observe and learn from Gary as he interacts with the community and the legal system, he is both champion, and challenger. I believe that the justice system, despite its enormous capacity to sort the problems of others, finds great difficulty in self-critique. Gary, who is a most solution focussed fellow, and a practical one, gives us opportunities to consider how the law can be more effective in working with the poor. Many of the recommendations of the report are delivered on the premise that courts exist in order to solve problems. Gary is hopeful that the system that he has spent many years negotiating is flexible enough to listen. His hopes echo the expectations of Anatole France, who says “The law, in its majestic equality, forbids the rich, as well as the poor to sleep under the bridges, beg in the streets, and to steal bread.” The great thinking and effort that has fuelled this report inspires me to also be hopeful.

Bernie Geary OAM Child Safety Commissioner

Victoria Law Foundation Poor, powerless and in trouble with the law 1 Executive summary

Serious criminal activity by professional criminals is a numerically small part of criminal behaviour. It is not inconsequential but the criminal justice system is constructed as if it is central to its operation. To put it another way, the justice system is distorted by a focus in its systems and processes on exceptional crime. The system acknowledges the threat of punishment, and utilises due process, via the adversarial system. People charged have rights, but the elimination of serious crime is the aim. This is an understandable focus but ultimately unachievable. Serious organised crime will never be completely eliminated, and the bulk of the criminal justice system’s work will be with high prevalence, unremarkable crime committed by the poor and powerless. The State is increasingly transferring minor matters from the traditional criminal courts into the inflexible infringements system. It imposes penalties without taking a person’s circumstances into account. Rich and poor are fined the same amount for the same infraction. The infringements system therefore impacts more heavily on the poor. After more than 30 years working in a legal service in a poor community, I have provided legal advice and representation to countless individuals and several gen- erations of families, and participated in reform activities in tenancy law, credit law, the Children’s Court of Victoria, the infringements system, consumer protection and police behaviour. I have also played a role in monitoring and improving the legal professional standards in community legal services. Over this period there have been significant changes in the nature of Australian society, welfare support mechanisms and legal systems. Apart from helping relatively few individuals among the poor and powerless, these changes have not had a major positive impact, and in some areas the impact is negative. Disproportionate to their numbers in the popu- lation, the poor and powerless continue to be gathered up in the justice system. Conditions of poverty generate a high incidence of low-level crime. This commonplace criminal activity is not adequately addressed. The relationship between poverty and crime is not so much ignored but tolerated in the justice system, reflecting a view that poverty is eternal and unchanging. Addressing this imbalance in the impact of the justice system on the poor and powerless requires a more comprehensive approach to rehabilitation that addresses the root cause of the criminality, while continuing to uphold a civil society. Such an approach, based on problem-solving principles, addresses the quiet desperation, chaotic lifestyles and multiple disadvantages that bring the poor and powerless into conflict with the broader community and the justice system.

2 Victoria Law Foundation Poor, powerless and in trouble with the law The justice system currently employs a poorly-structured approach for much of this work. I do not say that the justice system can eliminate poverty, but it has an explicit attribute which other structures, such as the education and health systems, do not have. It can enforce. Defendants can be redirected to education and health activities run by counsellors, educationalists and even police as part of their sentencing and rehabilitation. Such measures collaboratively confront the cycle of poverty and crime. Already, some courts are re-positioning themselves by following problem-solving principles. These courts are showing good results in terms of reduced recidivism. However, they are few in number, available to a limited number of defendants and have been fashioned in a way that requires significant resources to operate effectively. The principles can be applied more broadly through the justice system, with the potential for more effective longer-term outcomes. Problem-solving principles provide a framework. The poor will be able to access resources case‑ managed by courts, whether or not they have been sentenced in court or had fines imposed under the infringements system. This report proposes a number of small, but important, reforms to the operation of the courts and the infringements system, the conduct of police and lawyers and the role of welfare and support agencies which have the potential to spread the success of problem-solving courts across the system. They address the way in which the justice system interacts with individual defendants, placing a high priority on their statutory responsibility of rehabilitation. By embracing problem-solving principles, the justice system can also assist in achieving broad social change. This requires closer collaboration with welfare and support agencies and a reframing of the paradigm underlying the retainer between lawyer and client to allow them to better work in favour of improving the system for the poor and powerless, while still representing the interests of their individual clients. As in the past, community legal centres have an important role to play as a testing ground for such reforms and in advocating for their broader implementation.

Victoria Law Foundation Poor, powerless and in trouble with the law 3 Recommendations

1. Acknowledging that much court activity is not adversarial in practice, but a form of problem solving, the notion of court as ‘problem-solver’ should be encouraged and supported for appropriate matters. This may require the following changes. • Amendment to the Sentencing Act 1991, particularly for high prevalence crimes which make up most of the activity in the courts, to give rehabilitation its appropriate priority and to authorise the courts to manage rehabilitative resources. • Increased resourcing of the courts to effectively carry out their Sentencing Act 1991 obligation to rehabilitate, particularly for high prevalence crimes. 2. The operation of the courts should support their role as problem-solvers through consideration of and adherence to the following points. • Honouring the “principle of immediacy”; justice delayed is justice denied. The Magistrates’ Court should list matters within 72 hours of charges being laid and court days should be established around community timelines, not those who staff the court. • Provision by the police of detailed summaries of charges to defendant/lawyer within 24 hours of charges being laid. • A requirement for police informants to provide information to enable court prosecutors and staff to determine the conduct of the proceedings. This means that prosecutors, not informants, should settle the charges to proceed and the charges to be withdrawn, and the content of police summaries with defendants and their clients. • Availability of defence lawyers at all courts. • Bail conditions to be decided mostly by the courts, and not police. • Facilitating access and compliance through the courts. • Imposing penalties to commence as soon as possible, ideally on the day of court, and government and community agencies providing resources and programs at the court. • Structuring the court day so that, early in the day, information exchange between the police, prosecutors, defence lawyers, and agencies can occur through a discussion of cases on the list, and later in the morning, programs can be run for persons sentenced. • Arranging for the same magistrate to maintain the carriage of individual cases until resolution, in order to monitor adherence to the program and to implement immediate sanctions for non-adherence.

4 Victoria Law Foundation Poor, powerless and in trouble with the law 3. Specialist courts should sit away from courthouses from time to time, including for infringement matters. For example, a homeless shelter could host a court which adjudicates on proceedings brought against the homeless. 4. A ‘Victorian Centre for Court Innovation’ should be established in Melbourne. 5. To improve equity in the impact of infringements matters: • court registrars and deputy registrars should be empowered to adjust the amount of fines by taking into account a person’s circumstances • payments should be finalised in six months if a person’s income is low or is predominantly derived from Centrelink benefits • people should be permitted to ‘work off’ fines by means which assist themselves, their families, and their communities, potentially through programs run under the auspice of problem-solving courts. 6. Within community legal centres the changes below should be employed. • The retainer between lawyer and client should be structured so that work done has the capacity to achieve broader change and particularly for the poor and powerless; not just to assist the individual client. • As a preventative measure to encourage early engagement with legal assistance and to place their legal issues in their broader circumstances and life course, clients should be encouraged to access regular legal check-ups with their community legal centre. • Consistent with the intention to reduce the adversarial nature of the criminal justice system, community legal centres should continue to work closely with community organisations and the justice system, including police, with a view to undertaking joint preventative programs.

Victoria Law Foundation Poor, powerless and in trouble with the law 5 Prologue

Derek Edwards, in Discourse and Cognition, notes that “accounts of actions are invariably and at the same time, accounts for actions.” (1997, p. 8) Edwards acknowledges: “how convenient it might be if there was a one-to-one mapping between language, mind, and reality, or between rules and the actions they govern.” (1997, p. 18) Unhappily, there isn’t. I have worked with community legal services since the mid 1970s, as a law student at Springvale Legal Service, as a volunteer at the Tenants Union of Victoria, and since 1982 at West Heidelberg Community Legal Service. West Heidelberg Community Legal Service is based in the Banyule Community Health Centre, and enjoys a close relationship with La Trobe University. Law students are based at our centre as part of their courses. In describing the day-to-day work, I cannot improve on the words of its founder, Phil Molan: All the caring professions worked there. So for example there was someone who consulted the doctor because of sleeplessness and worry about her kids at school. It turned out that they were playing up because their dad had left home. So that then involved the youth worker. Then it emerged that she had financial problems because dad had left home. That then involved the credit counsellor, and it involved the lawyer to get the maintenance payments. It turned out too that the kids had really deep psychological problems because of the conflict between their parents. So then the psychologist was involved. We were able really to look at the total problems affecting that family. (Neal, 1984, p. 63) The model — a relationship between health centre, university and legal centre — has received considerable praise and is valued in the local community. However, it is unusual in Australia, and has rarely been replicated elsewhere. Partnerships such as these are imperative in tackling issues that arise from poverty. I have now worked for several decades for the poor and powerless in West Heidelberg, including representing clients in court, and initiating projects to bring about legislative and practice change in favour of the poor. While we have achieved some victories, progress has been slow and halting. Martin Luther King exposes subtleties about the law and how it is administered: “Sometimes a law is just on its face and unjust in its application.” West Heidelberg is a poor community on a large public housing estate in Melbourne’s north, where good health care, a decent education and gainful employment are difficult to access. The Australian census data reveals that life is not improving; the poor still die young. One hypothesis, often heard in my travels in the US and Canada, is that poor communities are now experiencing the long-term effects of deinstitutionalisation, the closing down of large public and religious establishments. People who historically would have been accommodated in state and private institutions, sometimes for very long periods, are struggling to manage their lives. There can be

6 Victoria Law Foundation Poor, powerless and in trouble with the law devastating effects on families when children are involved. Government promises to provide resources for the community after deinstitutionalisation were not kept. Limited resources are a reality. The notion that ‘something’ must be done, can lead to responding to the same problems day after day, and neglecting systemic solutions. Both may not be achievable at the same time, but the second will be unfruitful without the first. Nicole Rich, in her report ‘Reclaiming Community Legal Centres’, states: The ethical choice thus becomes clearer — a legal service trying to achieve power for its constituents now and into the future must, as a moral imperative, balance its commitment to the alleviation of present needs with a similar commitment to altering the political landscape of the poverty community. (2009, p. 18) The choice seems to be between rescuing those in trouble and broadly addressing systemic issues. I remain optimistic that it doesn’t have to be either-or. The criminal justice system can assist in implementing systemic change by better addressing individual problems through a greater focus on rehabilitation. Acknowledgements and thanks Thank you to the Victorian Law Foundation for funding my community legal centre, and allowing me to take leave to undertake the research for this report. I thank La Trobe University for making an office and associated resources available to me. Thank you to West Heidelberg Community Legal Centre for facilitating my release in what became a difficult period due to staff changes. Many thanks to my steering committee of Kerry Walker, Mary Anne Noone, Garry Rothman, Denis Nelthorpe and Jacqui Bell. Thank you to all those in Victoria and North America who gave their time and energy to talk with me about their work and views of the potential for our legal system to better address the issues of the poor and powerless. Thank you to Frances Essaber for editing suggestions. Last, but by no means least, I acknowledge Pamela Williams for her valuable travel assistance and support.

Victoria Law Foundation Poor, powerless and in trouble with the law 7 1 Purpose of this Fellowship

My application for this Fellowship stated that its purpose was to undertake research to identify solutions, barriers and ways for mounting poverty as a defence. The research was to encourage lawyers to mount poverty as a defence and suggest legislative and administrative changes based on the research. The report was also intended to document the process of experiential exchange between experienced and less experienced lawyers on the poverty law defence, with a view to encourage such collaborations within CLCs. The aim was: • to encourage collaboration between agencies at court in supporting impecunious defendants • to reflect on and suggest improvements to sentencing options that suit the circumstances and rationales of sentencing so that the system applies fairly • to encourage new approaches to lawyering by lawyers in how they defend matters involving the socio-economically disadvantaged • to refashion the way defences are mounted to improve outcomes for the impecunious in court beyond imprisonment because they are too poor to pay • to activate the welfare agency sector • to improve social justice outcomes for people who by virtue of their inability to pay are forced into prison. I soon realised that the scope of the proposal was too ambitious. The idea that poverty itself could be used as a defence was unsustainable. However, there is much that the justice system can do to achieve fairer outcomes for the poor and powerless. This involves changes to the way courts work, provision of resources to courts and agencies who work with the courts, and changes to the way in which court ‘players’ do their jobs. It also involves the continued and enhanced work of lawyers within and outside CLCs to progress broader social reforms. This report seeks to provide practical suggestions for implementing problem-solving principles across our justice system that will result in fairer outcomes for the poor and powerless. In doing so, it seeks to build on the success of problem-solving courts in North America and in Victoria. As such, the report touches on all six objectives of the Fellowship, addressing them from a slightly different perspective than originally envisaged.The methodology underlying this report included: • a literature review • investigating the application of problem-solving principles in courts and legal services in Victoria and North America • developing practical suggestions for implementing problem-solving principles across the Victorian justice system.

8 Victoria Law Foundation Poor, powerless and in trouble with the law Interviews and research were undertaken in Melbourne in late 2010. I visited the US and Canada over a three week period in January and February 2011. The purpose of the visit was to observe a number of specialised courts in action and to interview professionals including district attorneys, defence lawyers, judges, police, probation staff, counsellors, and court staff. The courts are known variously as problem-solving courts, community courts or specialist courts. Victoria has embraced the trend with innovations like the Drug Court, a Mental Health List and a Special Circumstances List at Melbourne Magistrates’ Court. In Collingwood (inner-Melbourne), there is the Neighbourhood Justice Centre, based on a model pioneered in Red Hook, New York. These were also visited and meetings were held with stakeholders.

Victoria Law Foundation Poor, powerless and in trouble with the law 9 2 Poverty and powerlessness

Considerable disagreement exists about the condition of poverty. One of the founders of the Fitzroy Legal Service, Remy van de Wiel QC, had this to say in On Tap, Not on Top, a publication produced in 1984 for the 10th anniversary of the Fitzroy Legal Service: “Poverty is just a state of mind. You have got to give people the opportunity to control their own lives.” As applicable for Australia as it is for the US, Edgar and Jean Cahn in their seminal article ‘The War on Poverty: A Civilian Perspective’ assert that: “Poverty in America is not just a lack of material goods, education and jobs; it is also a sense of helpless- ness, a defeatism, a lack of dignity and self-respect.” (1964, p. 1321) Lawrence Friedman asserts that Americans: Believe that they live in a society with open doors, a land of endless opportunity. Those who fail deserve to fail. Government is demonised. People are expected to ‘make it’ on their own People do not need, or deserve, government help. Criminals are nothing but scum. Poor people are not much better. (2004–2005, p. 930) Australia’s legislative, justice and welfare framework is influenced by ill-founded perceptions of poverty, in part because the voices of the poor are rarely heard. In ‘Behavioural Poverty’, Lucy Sullivan attributed the woes of poverty to the social security system: Poverty in Australia today is not financial, but behavioural… It is now clear that the achievement of ever higher welfare incomes cannot alone solve the problems of ignorance, waste and shiftlessness which today define poverty in Australia (2000, p. 46) The implication is that poor families are receiving more than adequate income. The paper’s position seems to be that in a wealthy country like Australia the responsibility for poverty is to be apportioned between those who constructed the social welfare system, and its recipients. My assessment is that the poor do make bad financial decisions from time to time — but we all do. When people don’t have much money to begin with the margin for error is reduced. The poor in our communities are not just lacking in material wealth, but also have issues — such as mental health conditions, intellectual disability, drug dependency or health problems. This is partly due to the reduction in the safety net provided in the past by extended families and the closure of institutions such as orphanages, reformatory schools and mental health asylums. People whose needs in the past were addressed — for better or worse — within their own families or in institutions now mostly live independently in the community, as do their children.

10 Victoria Law Foundation Poor, powerless and in trouble with the law The deinstitutionalisation of communities has been significant, both here and overseas. People who would previously have lived in institutions have also become over-represented in the justice system. This exists in the US as well. The website of the Bronx Defenders, who I was delighted to visit, puts it this way in relation to the South Bronx community: What we have found is that the root causes of their involvement in the justice system are the same: poverty, substance and alcohol abuse, mental illness, family instability, and lack of access to critical support systems. Moreover, once in the justice system, they all face the same devastating collateral consequences: children removed from the home, eviction, termination of public benefits, deportation, and loss of employment. Like the South Bronx, the West Heidelberg community is a large public housing estate and a poor community. Academic research into the integrated programs run in the area confirmed high levels of poverty. The researchers, Noone and Digney, state: Recent research suggests the West Heidelberg area continues to be an area of significant social disadvantage. A report in 2004, measuring social disadvantage in Victoria and New South Wales (through a number of social indicators, including unemployment, low birthweight, child maltreatment, childhood injuries, education, psychiatric admissions, crime, income, dire shortage of income, mortality, sickness and disability support, imprisonment, early school leaving and disconnecting the domestic electricity supply) ranked the West Heidelberg postcode area in the top 30 disadvantaged communities in Victoria. (2010) Poverty and a sense of powerlessness contribute to much criminal behaviour. This behaviour is mostly at the lower end of criminality. However, the criminal justice system allocates much of its energy and resources to a small number of major offences.

Victoria Law Foundation Poor, powerless and in trouble with the law 11 3 The courts

3.1 How traditional courts work Victorians expect the criminal justice system to prevent crime and promote respect for the law. These expectations are reflected in the State’s Sentencing Act 1991. Society expects the criminal justice system to keep misbehaviour within boundaries, to stop it from getting out of hand and to control it. Because it continues, the superficial conclusion is that the justice system is failing. This supposition is flawed. A small proportion of young people will engage in hazardous and risky behaviour. Most of these will become law-abiding citizens. The justice system can hardly take credit because grey-haired retirees do not hoon around the streets of Melbourne in ‘hotted-up’ cars. The governing principles of the Sentencing Act 1991 are set out in Section 5(1). The introductory provision states that the following purposes are the “only” purposes for which sentences may be imposed: (a) to punish the offender to an extent and in a manner which is just in all of the circumstances; or (b) to deter the offender or other persons from committing offences of the same or a similar character; or (c) to establish conditions within which it is considered by the court that the rehabilitation of the offender may be facilitated; or (d) to manifest the denunciation by the court of the type of conduct in which the offender engaged; or (e) to protect the community from the offender; or (f) a combination of two or more of those purposes. While these terms are carefully construed and interpreted in the superior courts, they are infrequently referred to in the busy magistrates’ courts in which my clients usually appear. Extensive funding for the police and the prisons is a fact of the system. Unfortunately, rehabilitation is relatively underfunded and, as a result, the options of the court are limited. This means that the aims of the justice system are not always all achieved. Is a court to give equal weight to all matters set out in Section 5(1)? Punishment leads the list. Does that mean that a court must invariably punish? Punishment is to be imposed only to the extent that it is “just in all of the circumstances”. Problem- solving courts operate on the basis that punishment can be confined in certain cases to publicly denouncing behaviour and castigating the offender, and the court’s orders can be limited to rehabilitation. Sentencing an offender to rehabilitation can be regarded as the punishment.

12 Victoria Law Foundation Poor, powerless and in trouble with the law Parliament, and its executive, the Cabinet, authorises the administrative component of government, Victoria Police, to investigate crime and charge suspects. Parliament empowers the judicial component of government, the courts, to determine guilt and impose penalties. Courts have a range of options to consider, and must consider the crime itself and the defendant’s circumstances in determining the appropriate penalty. The courts are limited in their capacity to impose penalties in the nature of rehabilitation by the limited resources available to them. The real picture of crime emerges daily in the courts. Those who insist that all the people who break the rules are ‘crooks’ and proclaim that our justice system must obliterate misbehaviour, disregard the situations of the poor and the powerless. Cherie Robertson refers to the “adopted stance of passivity” of the average poor client, and their “self-perception of smallness.” (1997, p. 642) She argues that the legal issue, the ‘conflict’ “actually becomes commodified, like a piece of property... [and that] it is the lawyer who ultimately exercises ownership over it and makes a living from negotiating it.” (p. 644) Rehabilitative resources are limited and inaccessible to the courts. Conventional courts dispense detached justice. The court ‘players’ delay. Traditional courts are hidebound and slowed down by long-distance policing. Police at the courts are mainly prosecutors; their knowledge of the cases depends on insufficient information provided to them by informants who are hardly ever at court. Prosecutors do not have authority to finalise proceedings without explicit consent of informants, who are habitually inaccessible. Sentences are remote in time from the behaviour…which brings the person before the courts. Courts impose penalties which are disconnected from the lives of defendants. Lawyers are often briefed by clients at the last minute — at court. They appear as diffident observers looking to exploit systemic delay for their clients. An American author, Malcolm Feeley challenges the orthodoxy of due process: In theory, the due process model preserves the rights of all defendants. It insists on a standard of legal guilt as a basis of conviction, both to protect individual rights and as a means of controlling officials’ behaviour. For a great many cases in lower court, the pre-trial process model challenges these assumptions, since the exercise of these rights only increases net costs to the defendant. There is little incentive to invoke formally the rights loosely referred to as due process, and there is virtually no incentive or opportunity to test them by appeal…it is often more expensive to invoke rights and remedies than to suffer instances in silence. (1992, p. 33) The infringements system is an offshoot of court activity. Fines are a common penalty imposed in courts. Increasingly fines are imposed ‘on-the-spot’. This process bypasses the courts. Parliament has established precise amounts for fines through regulation so penalties are certain. No longer are fines merely for parking and speeding. Authorities have the option in more cases whether to take a matter to court, or hand out a fine on the spot. They usually issue a ticket. It has been estimated that, as a result of legislation in 2008, 90% of shoplifting cases will be transferred out of the courts. The infringements system is slowly displacing the courts.

Victoria Law Foundation Poor, powerless and in trouble with the law 13 Professor Pat O’Malley notes that fines are not to be used for crimes “that concern ‘the innermost and most basic aspects of the person’” (2009, p. 11) Cases such as murder and rape can be regarded as crimes that “concern the innermost and most basic aspects of the person”. Proof beyond reasonable doubt will continue to be the yardstick in those kinds of cases. There is a pattern emerging of minor criminal matters being effectively transferred to the infringements system. Current examples include minor dishonesty and weapons matters. I predict that low-level assaults and criminal damage cases will be next. More serious thefts will follow. These kinds of matters constitute a large proportion of the day-to-day work of magistrates’courts. The boundary between matters which must be dealt with in court and those which police can direct to the infringements system is shifting. The expansion of the infringements system changes the relationship between the administrative and judicial arms of government. The magistrates’ courts will become focussed on the more complex cases within their remit. Many years ago parliament decided to limit the number of criminal cases heard by judge and jury. Today a single magistrate sits as judge and jury. Parliament did allow defendants to elect to transfer indictable charges from magistrate alone to judge and jury. Few have elected. Similarly, infringement cases can be transferred into open court. The recipient of an infringement notice may elect to do so. This hardly occurs.

3.2 Problem-solving courts The purpose of my visit to North America was to study the relationship between problem-solving courts and their use of government and community resources. Those who initiated these courts had a background in policing and the courts: Problem-solving justice can trace its theoretical roots to innovations in policing, particularly community and problem-oriented policing, which attempted to replace traditional law enforcement focus on responding to individual offences with a focus on identifying and addressing patterns of crime, ameliorating the underlying conditions that fuel crime, and engaging the community as an active partner... The goal is to provide judges who preside over conventional court- rooms with access to the same sanctions, links to social services, and rigorous monitoring that are more commonly offered in drug, mental health, or community courts. (Wolf, 2007, p. 1) Wolf points out the complexity of the system, with courts at the hub. Although the various players have a role at court — police and prosecutors to bring cases, defence lawyers to sift through statements and protect the defendant’s rights, correctional staff to oversee the outcome: Courts traditionally behave as if they are more or less self-contained, focusing on the specifics of cases and less on the circumstances that bring defendants through the door or what happens after they leave. (p. 6) Wolf identifies six problem-solving principles: Enhanced Information, Community Engagement, Collaboration, Individualised Justice, Accountability, and Outcomes. These principles can be applied in the everyday work of the court in the sentencing of offenders, with the intention of paying more attention to rehabilitation and reducing recidivism. However, as I describe later, application of these principles also places the courts in a better position to support social change, initially through better addressing the problems of the individuals it deals with, but also through providing information and support for more effective responses to criminality.

14 Victoria Law Foundation Poor, powerless and in trouble with the law In the context of dealing with individual cases, the problem-solving principles can be understood as follows. • Enhanced Information could be described as context, or background information, that improves the quality of sentencing. Courts must listen to experts about complex problems such as domestic violence and be advised about the physical and mental state of the defendants themselves. Courts can also learn from local communities as to whether the behaviour they have described to them in court each day is isolated or part of a pattern, and how concerned the community is about that behaviour. This active relationship between the courts and their communities leads to the next principle. • Community Engagement involves engagement between the courts and their communities. This enables the court to access richer information about the context in which the defendant committed the offence and how sentences can be most effective. • Collaboration acknowledges the unique position of courts: their authority and reputation for neutrality. Programs which are developed for use in the court environment have the authority and compulsion of the court behind them. Through working with community agencies that provide services, the courts can improve upon the sentencing options. • Individualised Justice acknowledges that while matters before the courts can be straightforward in outline, those who commit offences can lead complex and difficult lives, and that court dispositions can affect significant personal issues. Through using individualised approaches, the court has the opportunity to be more effective in addressing the defendant’s issues and reducing recidivism. • Accountability is based on the view that all criminal behaviour, no matter how seemingly minor, has impacts on others and on the wider community, and that the criminal justice process and the penalties imposed must ensure the offender understands this. It follows that services offered to an offender must be reviewed by the court to make sure that that rehabilitation is occurring. This means follow up by the court or court staff. Failure to attend will have consequences later at court. • Outcome focuses on measurements of success such as program completion and reduced recidivism. Data must be gathered and the impact of programs on the individual assessed and programs adjusted to make sentences more relevant to the lives of offenders.

Victoria Law Foundation Poor, powerless and in trouble with the law 15 Feeley asserts that a major principle of the problem-solving courts has been to focus on “due process plus fair outcome”. This approach has been criticised as tinkering with the role of lawyers and courts. For example I quote from an article in the National Black Law Journal: Clearly, some defence attorneys are not pleased with problem-solving courts. Law professor Kim Taylor-Thompson, in a roundtable discussion about the changing roles of lawyers in problem-solving courts, rejected the notion that defence attorneys should be more interested in getting drug-addicted defendants sober than limiting their client’s court involvement. “I take issue with the notion that defence lawyers should have a ‘yearning’ to do more than get their clients out of the system. When I get my client’s case dismissed, charges reduced, or sentence shortened, my yearning is satisfied. If the client needs or wants treatment, they should be able to gain access to it outside of the coercive atmosphere of a criminal proceeding. (2009, p. 42) The sentiments expressed by Professor Taylor-Thompson may fit the scenario where the defendant is one of the small number of people before the courts who see crime as their occupation, and make clear choices to commit crimes. The defendants who I have represented over the years are usually not functioning well. Many find it difficult to understand how they have ended up in the situation they have, don’t want to remain as they are, but cannot see how they can change. I observed courts in Victoria and North America that are putting problem-solving principles into operation. These courts are achieving success. Some programs are set up in a geographical area for the people who live there. They are the ‘large models’. Downtown Community Court in Vancouver and the Neighbourhood Justice Centre (NJC) in Melbourne are examples of this approach. Some programs are set up to deal with a particular problem or the problems of a particular group. They are the specialist models. Drug courts and the combat veterans courts are American examples of these. Others could be described as an amalgam of the above. The amalgams exist as a subset of traditional generalist court activity and have programs which are made available by the courts to those identified who may benefit. Problem-solving approaches have been evaluated as highly effective. Here are some international examples. In 2009, Midtown [New York, US] heard 18,668 cases (which consisted of 9,723 misdemeanour cases and 8,745 summonses). The most frequent misdemeanour charges were stolen property, vending violations, trespassing, panhandling, and marijuana drug possession... In 2009, 87% of defendants at Midtown completed their community service mandates, compared to approximately 50% of the defendants who were processed at the downtown criminal court. (Center for Court Innovation, 2007) Each year, the Justice Center [RedHook, New York, US] handles roughly 3,000 misdemeanour criminal cases, 11,000 summonses, 500 housing court cases, and 175 juvenile delinquency cases. Among criminal cases, the most frequent charges are drug possession, traffic violations, trespassing, public drinking and minor assault... More than three out of four Justice Center defendants complete their community service mandates compared to the 50% benchmark at comparable urban courts. (Center for Court Innovation, 2010)

16 Victoria Law Foundation Poor, powerless and in trouble with the law “Most evaluations found that drug courts [in the US], while not a cure-all, produce meaningful reductions in re‑offending compared with conventional prosecution”, (Cissner and Rempel, 2005). The [New York, US] youth court’s compliance rate with sanctions such as community service and letters of apology is unusually high — 70%. (Turgeon, 2006) Police and Crown counsel activities that take place prior to a court hearing are completed more efficiently in the DCC than in other courts. (Downtown Community Court, 2010, p. 50) An example of policy implementation by collective action, Proposition 36 demonstrates that considerable collaboration and resourcefulness are required to blend criminal justice principles of accountability with a substance abuse rehabilitative culture. (Evans and Dale, 2011) Homeless Outreach Court [Orange County, California, US] is an unfunded collaboration... In 2010, 273 people completed the program. During the year, participants completed 2,808 hours of community service. Since its inception, 998 people have completed the Homeless Outreach Court program, and have been helped to access the tools they need to regain their self-sufficiency. Of those who completed the program during 2008, only 26.4% have been arrested for other than traffic infractions within the next two years. (Collaborative Courts, 2010, p. 37) In 2011, the Victorian Auditor-General audited two programs [in Victoria, Australia] which are based on problem-solving approaches. One is the NJC, the ‘large model’. The other is an amalgam, known as the Courts Integrated Services Program (CISP). The Auditor-General’s report, Problem-Solving Approaches to Justice, concluded regarding the programs surveyed: Both the Neighbourhood Justice Centre (NJC) and the Court Integrated Services Program (CISP) were evaluated over a number of years to determine whether they have achieved their intended outcomes... Both CISP and NJC showed indications of having contributed to a reduction in reoffending... Each program has supported its client group and provided high-quality reports to the magistracy to assist their decision making. (p. 29) NJC has had a positive impact on its clients and the community. It has made a positive contribution to the City of Yarra by providing support and services to address the underlying factors that cause crime and disadvantage. (p. 35) In supporting the location of the NJC, the Auditor-General concludes that the: Site selection at Collingwood was also consistent with key success factors — identified from overseas experience — for establishing a community justice centre, namely, locating it in a densely populated area that has high levels of crime and disadvantage. (p. ix)

Victoria Law Foundation Poor, powerless and in trouble with the law 17 Problem-solving principles work well in the ‘large model’ approach. The problem- solving courts I observed required large buildings in which to operate. This is because programs and activities are run at the courthouse, and staff are based there. The Red Hook Community Justice Center, the Victorian Neighbourhood Justice Centre and the Vancouver model can be successfully replicated in areas of high‑ density, low-income, high-crime rate, with marginalised populations. For Victoria there are few places which have these ‘Red Hook characteristics’, except areas such as Collingwood. Much of Victoria could be described as low-density and low crime. Ideas from both ‘large’ and ‘specialist’ models can be applied in Victoria’s traditional courts. There are problems in setting up ‘large model’ problem-solving courts in other parts of Melbourne and throughout Victoria. Significant resources would be required and it would be necessary to significantly modify current courthouses to accommodate problem-solving programs on site. Melbourne is one of the most decentralised cities in the world. Melbourne’s public transport system is not equal to that of New York. However, problem-solving principles can be applied to Victoria’s criminal justice system. A court program run in a small number of magistrates’ courts in Victoria, the CISP has some features of problem-solving courts and is successful. The features of North American and other problem-solving jurisdictions which can be distilled and applied in Victoria, include: • all issues are decided within the court • people at the court in positions of responsibility — physically at the court — are given responsibility to determine progress and resolve matters • resources are available at court for judicial officers to engage for the benefit of defendants • matters settle promptly.

3.3 Integrating problem-solving principles into our justice system Generally, problem-solving courts don’t deal with the most serious crimes, or with pleas of not guilty. Unlike the conventional, but overstated, view of traditional courts with their adversarial approach in full flight, problem-solving courts do not proceed in the adversarial way. Victoria’s magistrates’ courts rarely do so either. Nearly all cases are finalised as guilty pleas. In magistrates courts, contests are unpopular with clients, Victoria Legal Aid, and the legal profession. Clients want their cases over and done with. Victoria Legal Aid does not extend significant extra payment to the legal profession to conduct contests. The profession looks to settle. Little activity in the problem-solving courts is undertaken until settlement of plea is finalised, usually with a guilty plea. If a defendant exercises his or her right to plead not guilty, or even not to enter a plea, the resources of the problem-solving court are generally not made available, and the case is referred out to the traditional courts. This aspect of problem-solving courts has caused some angst among traditional defence lawyers. They object that most clients have to plead guilty to access such courts. It has been prosecutors, judges and staff from government agencies, rather than defence lawyers, who have championed problem-solving courts. Detractors maintain that it is unfair to offer resources to someone who needs them, but only after they plead guilty, as this puts pressure on the person to plead guilty. But most defendants already plead guilty in most magistrates’ court matters.

18 Victoria Law Foundation Poor, powerless and in trouble with the law Some problem-solving courts in North America offer programmatic resources in advance of a plea being entered, which reduces the importance of the entry of the plea. However, conceptually this is confusing, as the programs could be regarded as both an inducement to a significantly reduced penalty, and as the ‘penalty’. I saw no evidence of people in problem-solving courts pleading guilty when they believed they were not guilty. American problem-solving courts make a virtue of moving cases on quickly. For example, an evaluation of New York’s drug courts found that: Drug court cases reach initial disposition more quickly than conventional courts. Participants in all six drug courts spent significantly less time from arrest to initial disposition/entry than comparison defendants. (Centre for Court Innovation, 2003, p. 10) Procedures following the initiation of charges vary. In courts I observed in the US and Canada, detailed material is compiled quickly and routinely by the police, and is made available virtually immediately to the defence lawyer, who can then obtain instructions from the client. Clients were more accessible to their lawyers; they were often detained in custody overnight. In Victoria a defendant facing similar charges will usually be bailed by the police to a court date about a month later. Why would a defendant choose a traditional court over a problem-solving court? Problem-solving courts have extensive, innovative and accessible resources. Who would want to go into the traditional court stream? This provides a fertile discussion. A Canadian defence lawyer had an effortless and provocative explanation, concept- ualising his job in court as: “Keep my client on the escalator; and wait for a good place to get off.” This is what the Americans described as the ‘time-served’ scenario. A number of adjournments occur while the defendant is in custody. Eventually the defence lawyer will ask that the matters be finalised that day on the basis that the person has been in custody for quite a long time, and that the defendant in effect be sentenced to the period of time they had already served in custody. A judge that I interviewed observed that this plan precludes clients from receiving longer-term benefits from attending one of the programs. It also defers decision-making and keeps clients in custody. In problem-solving courts I visited, programs are set up on the basis that there will be an ongoing need for them. Court staff don’t wait for the numbers to build and then organise activities. From the defendant’s point of view, the program referral may well be made on the day he or she attends court. The programs are set up in the environs of the court, usually within the courthouse itself. At Downtown Community Court in Vancouver for example, between two and six programs were planned for any one day of the week. These included programs such as “Crime Addicts Anonymous”, “Healthy Eating”, “Money Skills” and “ABCs of Leaving the Streets”. The program part of the court work is not engaged until a plea of guilty is entered by the defendant. This cannot occur without access to a lawyer, a discussion between lawyer and client about the case (which means that comprehensible prosecution material must be available shortly after the police processing of the client’s case is finalised), and agreement by the client. Some programs run for up to two years. These are assessed case by case.

Victoria Law Foundation Poor, powerless and in trouble with the law 19 Decisions about appropriateness for referral, that is, from traditional court to problem-solving court, or refusal to transfer, are not made by the police officer who charged the person, nor does that police officer have any power of veto. In Victorian courts, the evaluation as to whether and how cases will proceed is often made by people absent from the court, such as informant police or their sergeants. Settling which charges will proceed, and which will be withdrawn, and the form of the evidence itself, is regarded as the role of the District Attorney. The District Attorney is at the court, accessible to others at the court. Given that it was common to observe people whose matters had occurred overnight being dealt with at court, it was put to me that usually the charging police officer would have finished their shift anyway. Making decisions is the business of courts. Decision-makers rely on information from others. Delay means that courts are not adequately undertaking their constitutional function. Section 1(d) of the Magistrates Court Act 1989 requires the Court: “to abolish inefficient and unnecessary court process and procedures.” Section 1 (e) (ii) states that the court is to be managed in a way that will ensure “the prompt resolution of court proceedings.” The traditional court model pronounces guilt and usually imposes a minor penalty. Offenders are processed with little impact on them. The problem-solving court model in Vancouver provides quality care for low-level offenders. Problem-solving courts start from the premise that the defendant is unlikely to be evil. He or she may be a person who has struggled to manage his or her life, and has fallen into bad habits. He or she may have a disability. He or she may have a mental health condition, or be without work. This model repairs the traditional court system. It looks behind the offending, provides links, and imposes activities on the person for their benefit. The model implicitly acknowledges that the individual is unable rather than unwilling to organise these services himself. There are successful examples in Victoria. Paul O’Sullivan was employed by the Prostitutes Collective of Victoria (PCV). Paul had become disillusioned with the way matters were being dealt with by the courts. The offences were mainly loitering and minor drugs charges. He asked the Melbourne Magistrates’ Court to set up a special list for sex workers. Paul discovered that court staff and magistrates were more than willing to introduce the list. The court gained resources for the list. A bus was organised so that the women could easily get to court. They wanted matters to run in the early afternoon and have matters finished by the time the school day was ending. This was accommodated by the court. The names of those on the court’s list were provided to the PCV in advance, which made sure that the women remembered. But if there was a problem, say a clashing medical appointment, the court would hear about that from the staff directly, and I am advised that the magistrate invariably granted a short adjournment. This at least is adjourning for a purpose. Other agencies became involved, so other problems — health and financial — were also addressed. The project was reviewed with a written report. The women interviewed talked of how ashamed they had been and that their discomfort had often been part of the reason they had not attended court. They recounted that the court dealt with them in a respectful manner. The Magistrates’ Court Amendment (Assessment and Referral Court List) Act 2010 establishes for a trial period the Assessment and Referral Court List, or “ARC list”. Contested matters are not to be dealt with in this list; Section 4X(2) Magistrates’ Court Act 1989. Serious criminal matters are not to be dealt with; Section 4S(3). A person is eligible for the list if she or he meets diagnostic, functional and needs

20 Victoria Law Foundation Poor, powerless and in trouble with the law criteria; Section 4T. Individual support plans are to be established, and will run for up to 12 months; Section 4V(4). If the court is satisfied with the person’s participation in the individual support plan, it may discharge the person without any finding of guilt; Section 4Y(2). The Second Reading Speech on 10 December 2009 described the list as the “Mental Health list”, but the title of the list was amended by the Legislative Assembly on 23 March 2010. The then Shadow Attorney-General, Robert Clark, was troubled by the then government’s assertions about the operation of the Bill. He said: The risk and concern is that, despite all these bland words of comfort that we are being given, what will happen in practice is the persons referred to the list will be seen by a hardworking but severely overburdened general caseworker from CISP, who will do his or her best to put in place a plan for the accused, but will have neither the expertise themselves nor the resources to call in the necessary external expertise to properly assess the nature of the person’s impairment, and therefore to know what that person’s situation is and how best to respond. (Hansard, p. 931) There is some debate as to whether approaches reflecting problem-solving principles are effective. Robert V Wolf quotes a Denver district judge, Morris B Hoffman: In Denver, the number of drug cases nearly tripled two years after the implementation of drug court and prison sentences more than doubled. It is clear that the very presence of drug courts is causing police to make arrests in, and prosecutors to file, the kinds of ten- and twenty-dollar hand-to-hand drug cases that the system simply would not have bothered with before. Williams College Professor James L Nolan says drug courts also expand judicial authority “into the lives of drug court clients in unprecedented ways.” (2009, p. 40) These are matters comprehended in the problem-solving principles themselves. These are the sorts of issues that can usefully be discussed between court staff and the community. Both the state Liberal and Labor Parties used the expression “It’s time” in their law and order policies for the 2011 Victorian election. One asserted that it was time for the community to “get serious about intervening in the lives of offenders before they graduate to more serious crime.” The other said that it was time to say that enough was enough. Both parties promised more police. The effect of increasing police numbers will indeed mean more people being charged. Problem- solving principles will help to manage these developments. Problem-solving principles can and should be introduced into all our courts. Rehabilitation is court business. Section 5(1)(c) of the Sentencing Act 1991 requires courts to “establish conditions” within which rehabilitation must be facilitated. The courts must manage rehabilitative resources. Problem-solving principles will improve sentencing for offenders, speed up the business of court and reduce reoffending. In Victoria, the communication between the informant and the prosecutor has been increasingly conducted at arms-length. Since the introduction of the mention system, prosecutors handle all appearances without the informant police officer, including the plea, except in the very few cases involving bail contests and trial. Fewer and fewer police attend for interlocutory matters such as contest mention hearings.

Victoria Law Foundation Poor, powerless and in trouble with the law 21 With the introduction of problem-solving principles, police informants must bring more detailed information about cases into the court system in a timely fashion and must delegate making decisions about cases to prosecutors at court. Prosecutors must assume responsibility for the conduct of cases, and must acquaint themselves promptly with details of cases. Police must return to the courts the decision to bail persons charged. This will mean incidentally that persons initially charged will likely be held overnight after being charged and that as clients, they will be physically accessible to lawyers at court to interview and obtain instructions. Lawyers must be available at court to be informed of the detail of their clients’ cases, promptly obtain instructions as to how to proceed, and engage with officials and agencies at the court. Agencies, especially government-funded agencies, must organise resources at the court for defendants, or at least accessible to defendants. These programs must commence promptly and some should be listed for each day of court. Courts must adjust their timelines to facilitate exchange of information early in the morning before courts formally sit, meetings known as triage meetings, and complete formal sittings in the mid-afternoon so that at least some programs, for predictable matters, ordered by the court on the day can run the same day. Magistrates and judges must maintain a watching brief on cases before them. They must monitor a defendant’s progress and adjust programs as necessary, reserving short periods of incarceration as necessary for breaches. Courts don’t always have to sit in courthouses. From time to time they could sit at places convenient to defendants. The principle of Community Engagement describes actions such as setting up questionnaires, community gatherings and market research. Collaboration allows agencies associated with the court to test new approaches and find new ways to harness existing resources. Outcome posits that this knowledge will be passed on to the community. Community response will allow the court to assess the benefit to the community, and provide support to the more comprehensive implementation of those programs which are proved to be effective. In accepting and implementing problem-solving principles, the justice system will contribute to social change because it will have information about and experience with what works to reduce criminality. A significant group of people — who are being churned through the justice system, whose needs are currently poorly met — will be able to avoid harsher penalties. Welfare agencies are willing to participate in a problem-solving model. I asked the various agencies in Victoria that had regular contact with such people whether there were activities at their centre or school or hospital which would benefit the individual and the answer was always yes. Examples are the local Catholic primary school in West Heidelberg, St. Vincent’s Hospital, the Exodus community in West Heidelberg and the Brotherhood of St. Laurence. There was an in-principle commitment to supervision. This surprised me a little, as this would require quite a commitment. The view was that, given that the person already had a relationship with the agency and its staff and that such activities would be of benefit, offering programs and activities would certainly be considered. The proposals that I have outlined may be expensive to implement. There will be those who may argue that judges and magistrates are not the right people to determine the priority for services. A number of the North American models developed in a vacuum of services. By working with government and non- government agencies, problem-solving courts support rehabilitation so that people are assisted in their lives. What many people need in their lives is not chaos, but coordination.

22 Victoria Law Foundation Poor, powerless and in trouble with the law These problem-solving approaches are a work-in-progress, particularly if implemented across the whole court system, and not just within a particular centre or court. They need to be tested and developed in the context of the Victorian justice system and developments elsewhere. This can be achieved through participating in the international network of innovative courts, connected through the Center for Court Innovation in New York. Establishing the ‘Victorian Centre for Court Innovation’ in Melbourne would provide a focus for the implementation and continuous improvement of these approaches.

Recommendations 1. Acknowledging that much court activity is not adversarial in practice, but a form of problem solving, the notion of court as ‘problem-solver’ should be encouraged and supported for appropriate matters. This may require the following changes. • Amendment to the Sentencing Act 1991, particularly for high prevalence crimes which make up most of the activity in the courts, to give rehabilitation its appropriate priority and to authorise the courts to manage rehabilitative resources. • Increased resourcing of the courts to effectively carry out their Sentencing Act 1991 obligation to rehabilitate, particularly for high prevalence crimes. 2. The courts should operate as problem-solvers through the following. • Honouring the “principle of immediacy”. Justice delayed is justice denied. The Magistrates’ Court should list matters within 72 hours of charges being laid and court days should be established around community timelines, not those who staff the court. • Provision by the police of detailed summaries of charges to defendant/lawyer within 24 hours of charges being laid. • A requirement for police informants to provide information to enable court prosecutors and staff to determine the conduct of the proceedings. This means that prosecutors, not informants, should settle the charges to proceed and the charges to be withdrawn, and the content of police summaries with defendants and their clients. • Availability of defence lawyers at all courts. • Bail conditions to be decided mostly by the courts, and not police. • Facilitating access and compliance through the courts. • Imposing penalties to commence as soon as possible, ideally on the day of court, and government and community agencies providing resources and programs at the court. • Structuring the court day so that, early in the day, information exchange between the police, prosecutors, defence lawyers, and agencies can occur through a discussion of cases on the list, and later in the morning, programs can be run for persons sentenced. • Arranging for the same magistrate to maintain the carriage of individual cases until resolution, in order to monitor adherence to the program and to implement immediate sanctions for non-adherence. 3. Specialist courts should sit away from courthouses from time to time, including for infringement matters. For example, a homeless shelter could host a court which adjudicates on proceedings brought against the homeless. 4. A ‘Victorian Centre for Court Innovation’ should be established in Melbourne.

Victoria Law Foundation Poor, powerless and in trouble with the law 23 4 The infringements system

The ‘Infringements Court’ is an ‘e-Court’ — a product of the modern age. It does not sit and hear cases. Considering the colossal amount of tickets processed electron- ically, it receives little attention and few complaints, because in the majority of cases it works effectively. However, there are a small minority of poor and powerless people for whom the infringements system is ineffective and unfair. This section sets out the particular features of the infringements system. I consider the implications of the expansion of the infringements system. Finally I consider how the infringements system may be improved. Halsbury’s Laws of Australia explains: Regulatory legislation, where offences are created to regulate social or industrial conditions, public safety or protect revenue, is more easily regarded as imposing strict or absolute liability. [2005, p.130] Prosecuting is simplified. In my meetings in hospitals and schools around Melbourne in 2010, and with financial counsellors and community legal centre lawyers, every professional I interviewed knew of patients, parents, or clients who had unpaid fines and outstanding warrants. A minority of cases seemed to be a result of court cases in which an individual had been fined. I say “seemed” because it was possible that individuals may have had outstanding warrants as a result of a court fining them in their absence. People are understandably confused as to how warrants have come into existence. This burgeoning system of justice is like long-range bombing. Instead of bombs, letters bristling with legal mumbo-jumbo mysteriously land in the letterbox. Letters make reference to the transgression, and the date it allegedly occurred. (The event will have occurred weeks if not months earlier.) Persons targeted who crack the code learn that they have an obligation to pay the reckoning. The person identified in the correspondence is advised that he or she can return the paperwork and ask a court to determine the matter. Hardly anyone does that. Skirmishes follow. More letters arrive. Some may refer to a fresh matter. Some may reveal older matters. Combat ensues. Correspondence is fired off announcing that matters have mutated to the warrant stage. Heavy artillery is heard on the wind. There is very occasionally a whisper of imprisonment. This developing system of justice is not inconvenient for those who understand what is going on, have the capacity to pay, and take action as an alternative to attending court. With a sigh, they enter their bank details into their computer, and the low rumblings cease for them.

24 Victoria Law Foundation Poor, powerless and in trouble with the law 4.1 Infringements and the justice system Two monetary penalty systems sit alongside each other in the justice system. Fines are one of the sentences that a court may impose. The court must be satisfied beyond reasonable doubt that the act occurred and that the person intended to do the act. Cases in open court are governed by sentencing legislation. Courts are required to take the defendant’s circumstances into account in determining the appropriate penalty. Section 50(1) of the Sentencing Act 1991 states: If a court decides to fine an offender it must in determining the amount and method of payment of the fine take into account, as far as practicable, the financial circumstances of the offender and the nature of the burden that its payment will impose. In the event of non-payment, the person may approach the court and seek time to pay, or ask that the fine be converted to unpaid community work. Penalties are levied administratively through the infringements system. Cases in the infringements system are established on their facts alone. Mens rea, criminal intent, is irrelevant. The State has to prove that the act occurred. An offence which does not have a ‘fault’ element is described as a strict liability offence. In the infringements system, the regulations impose monetary penalties. Penalties are set at a level which will induce the ordinary person to avoid court and pay. The amounts do not vary and do not take account of personal circumstances. If matters are not resolved, a ticket can ultimately result in detention.

4.2 The growth of the infringements system On-the-spot fines are popular with those charged with enforcing the law. Police, parking officers, government administrators, Citylink officials, draft a ticket and hand it over, or send it out. Their job is done and the courts are relieved from wasting time on pesky minor matters. Generally, the public would rather pay than waste time in court. No conviction is recorded and the act of payment is not an admission of guilt. In most traffic cases — parking and speeding infringements — the State directs the paperwork to the registered owner of the motor vehicle. According to the Victorian Attorney-General’s Annual Report on the Infringements System 2009–10, over 120 government agencies issued 4.65 million infringement notices during that period. Victoria Police issued the majority; a little less than 60%. Local government was next with over 35%. While there is a right to elect to have matters taken to court, less than 1% does so. In 2009–10 it was 0.7%. About 5% of enforcement orders were revoked, the bulk by the Infringements Court. Internal reviews on the basis of special circumstances constituted only 0.16% in 2009–10. Approximately 40% of these internally reviewed matters were withdrawn, and write-offs by the state government were not included. The figure is likely to be high. It ought to be factored into consideration about the efficacy of the infringements system. I would foreshadow that this figure would reduce if problem-solving principles were introduced.

Victoria Law Foundation Poor, powerless and in trouble with the law 25 4.3 The spread of the infringements system The infringements system in Victoria has recently had its scope broadened to include some indictable matters. This development has implications for the business of magistrates’ courts. Much of its day-to-day work is in sentencing in non-serious matters. The writer foresees that matters historically dealt with in the jurisdiction of the Magistrates’ Court will increasingly be transferred by Parliament to the infringements system. Examples already exist. The Infringements and other Acts Amendment Act 2008 empowered police to issue on-the-spot fines for matters including shoplifting cases where the maximum amount stolen is less than $600; Section 74A Crimes Act 1958. Other matters such as wilful damage, offensive behaviour and indecent or obscene language were also included. There was bipartisan support for the legislation. In his response to the Second Reading speech on 6 February 2008 the then Shadow Attorney-General Robert Clark stated: From the opposition’s point of view, we strongly support a sensible, measured and fair application of an infringement system where that system is genuinely and effectively directed towards cracking down on crime and is not motivated by revenue raising...there is the potential for these measures to help in law enforcement by saving police time in prosecuting offences by means of offering a lower penalty and the non-recording of a conviction for offenders who do not dispute the case. Some acts of dishonesty are regarded by parliament as suitable to be dealt with in the infringements system. The consequence is that police won’t have to waste time in court. Theft is today a matter which, to quote O’Malley again, does not concern “the innermost and most basic aspects of the person”. Efficiency trumps ethics. As a result of the successful passage of the Control of Weapons Amendment Act 2010, weapons possession can now be handled by the infringements system. A police officer may issue an on-the-spot fine for $1000, or more, depending on the circumstances. Such an infringement notice may be served on a person above the age of 16 (Section 11B (2) Control of Weapons Act 1990), in another words, a child as well as an adult. Such a penalty cannot be handed down in the Children’s Court. Parliament requires the police to ‘send a message’. The judiciary, the third arm of government, is snubbed. This is not to say that a person fined for shoplifting or carrying a pocketknife, for instance, will not have their day in court. But the penalty will already have been set. If payment is not made, the sheriff will appear. Section 160 (1) of the Infringements Act 2006 states: The Court may order that the infringement offender be imprisoned for a period of one day in respect of each penalty unit, or part of a penalty unit, to which the amount of the outstanding fines under the infringement warrant or warrants is an equivalent amount. The Act does give discretion to the court to discharge fines in full or adjourn for six months if it finds that the infringement offender has special circumstances.

26 Victoria Law Foundation Poor, powerless and in trouble with the law 4.4 The implications of the expansion of the infringements system The poor and the disadvantaged have most to lose with the expansion of the infringements system. In a 2008 paper published by the Law and Justice Foundation of New South Wales, Fine but not fair: fines and disadvantage, the authors Clarke, Forell and McCarron conclude: ‘Fines’ and penalty notices can have a significant and disproportionate impact on the lives of disadvantaged people. We particularly noted the impact on those who are homeless, young, on low incomes, who experience mental illness and/or have unstable or chaotic lives, including periods of imprisonment. Some disadvantaged people are more vulnerable to receiving fines, are more likely to accrue multiple fines, have less capacity to pay fines and can accumulate significant debt for unpaid fines. My interviews with people who work with the poor in Melbourne revealed frustration with the infringements system. The system is regarded as inflexible: the penalties were regarded as too high, particularly when there was more than one ticket, and further costs and charges had been added. In Melbourne I interviewed people who worked in schools and hospitals, and various welfare agencies. They said that the people they dealt with always had infringement notices and warrants. It was understood that Civic Compliance can grant arrangements such as instalment orders, and additional time to pay. These usually meant hoping financial circumstances would improve, but finding that circumstances did not improve. There was little confidence that the person or family would be able to maintain payments, particularly for longer than six months. While people generally wanted to do something about their fines, there always seemed to be reasons why undertaking unpaid community work would be problematic. Other matters in the person’s life took priority. I believe that people would be far more likely to make a commitment to activities, such as programs and courses, if the opportunity were given to them shortly after the commission of the offence. This is based on what I witnessed in my observations at the problem-solving courts overseas.

Victoria Law Foundation Poor, powerless and in trouble with the law 27 4.5 How the infringements system can be improved Parliament must decide what the proper function of the courts is in relation to the infringements system, particularly in cases of non-compliance. In debate on the establishment of the ARC list on 23 March 2010, Mr. Clark cautioned against indiscriminate use of on-the-spot fines: It is not an appropriate and effective response...to automatically hit people with fines time and again when they are mentally ill, homeless, cannot cope and cannot pay. (Hansard, p. 931) These sorts of situations constitute a tiny proportion of the total number of on‑the‑spot fines each year. Ultimately, some people do face jail a long time after tickets have been issued. Local court staff must be given clear guidelines to implement appropriate activities and programs instead of fines, and not be bound by the original amount of the fine or any additional fee. Senior court staff must have the power to make adjustments. Instalment plans must be for a maximum of six months for the poor. I have considered extending that period to two years for fines in excess of $20,000, but have since rejected it on the basis that if punishments are not timely then they lose their worth. The system itself is partly responsible for fines becoming so large by the imposition of additional fees for non-payment and this must be taken into consideration. Experts such as financial counsellors must be available at the local court. The person’s plan may be reviewed if their financial situation improves, but it must be understood that people in poverty may not be able to pay, especially if their only means of financial support is a Centrelink payment. These payments are made by the Commonwealth Government on the basis that they are for the ‘basics’. Currently, a single person without children receives a maximum of $469.70 per fortnight. That person will generally have no savings available. Court administrators should have programs ready for people who wish to register. Court staff would be able to convert fines and warrants under the infringements system to attendance at appropriate programs linked to the court, and the court itself could monitor compliance with these activities. If there are problems, the person would be required to face a court, which has power to implement whatever sanction it believes appropriate. If a reasonable system is set up to allow the poor to convert their fines to a reasonable amount, and a maximum period of six months is imposed, there should be far fewer outstanding matters. Non-compliance without excuse in a program tailored to the individual could result in the court considering imposing a short period of incarceration, or other forms of punishment. The imprisonment provisions of the Infringements Act 2006 come into operation when the options offered by Community Corrections, by way of unpaid community work, are not taken up. These provisions do not include poverty as a special circumstance. Work and safety issues can prevent a person from being found suitable. A person must be reasonably well to undertake unpaid community work. However, these concerns do not prevent the person from being jailed for non- payment of fines. Instead of being referred to court for a possible jail term late in the proceedings, people should be permitted to promptly take matters to court and ask to participate in court-structured programs, as an alternative to paying money they don’t have. Let the court decide in these cases, taking advice from the experts at court, who will have interviewed such applicants. The courts will always play some role. If the court is in doubt about a person’s circumstances, it should generate an inquiry before it incarcerates that individual.

28 Victoria Law Foundation Poor, powerless and in trouble with the law 4.6 Collateral benefits of reform of the infringements system The government quietly writes off millions of dollars in unpaid fines which have remained outstanding for a long period. But some of this money would be paid under a better system. The infringements system works for those who can pay, even if they do sigh a little. Changes making the system better for the poor will indirectly benefit the well-off. There will be benefits for all. There will be better behaviour on the part of the public as they see the quick government response to misbehaviour. There will be greater revenue, mainly from those who can pay, who pay more promptly, but also from the poor who do pay their debts when they can.

Recommendations To improve equity in the impact of infringements matters: • court registrars and deputy registrars should be empowered to adjust the amount of fines by taking into account a person’s circumstances • payments must be finalised in six months if a person’s income is low or is predominantly derived from Centrelink benefits • people should be permitted to ‘work off’ fines by means which assist themselves, their families, and their communities, potentially through programs run under the auspice of problem-solving courts.

Victoria Law Foundation Poor, powerless and in trouble with the law 29 The role of lawyers and 5 community legal centres

Lawyers conduct cases for individuals. The traditional role of lawyers is to seek the best result for their client while acknowledging that the legal profession must function within the rules. The justice system aspires to sophisticated ethical conventions, such as the precept that the lawyer’s duty to the court is higher than the duty to the client. These kinds of ethical conventions fortify the lawyer to the view that the justice system is fundamentally fair. The argument is that the adversarial system sieves the stories and the truth filters through — that it guarantees a reasonable outcome. However, the facts of a case are usually not in contention and the adversarial system is used in a small proportion of cases in the courts — most cases settle. A good result for a lawyer is assessed case by case. Lawyers are not inclined to speculate about whether their client may return to them in the future with a similar set of charges. The criminal lawyer is to achieve the best result possible for the client for their current charges. Individual court cases are treated in a vacuum on the basis that no client wants to have any greater involvement in the criminal justice system than they have to and it is the business of the client to sort out his or her life as he or she sees fit. Many people do not fully understand the true source of their legal problems because they cannot afford lawyers and they do not have a good understanding of the law. On the large public housing estate I work in, Noone and Digney discovered that public housing tenants did not associate their legal difficulties with their poor quality housing. They state: None of the above participants presented to [the Legal Service] about their housing even though their housing problems contributed to their legal problem. The participants did not explicitly ask [the Legal Service] to assist with their inappropriate transitional or public housing and their housing was only discussed (if at all) in relation to their presenting legal problem. It is likely that a resolution of the client’s housing problem would assist, if not solve, most of the participants’ presenting problems. (p. 90) Saul Alinsky puts it this way: If people feel they don’t have the power to change a bad situation, then they don’t think about it...why start figuring out how to spend a million dollars if you don’t have it? (1971, p. 105) The poor and the powerless typically have multiple legal problems. Proscribed behaviour by the poor can occur because of need. It is a mistake to conclude that those apprehended for fighting, stealing and prostitution want to fight, steal, and prostitute themselves. Poorly educated, unwell, unemployed people can make poor choices. Reflecting the High Court majority judgment in D’Orta-Ekeineke v Victoria

30 Victoria Law Foundation Poor, powerless and in trouble with the law Legal Aid; courts will only “quell controversy” for the poor when they resource them so that the likelihood of future controversy is reduced. This requires a change of approach from courts, but also from the poor. The poor have no stake in the legal system and prefer to avoid courts and lawyers so the legal profession and the courts must change if they are to forge effective legal solutions for these individuals. This presents the opportunity for the legal profession and the courts to achieve broad social change. The retainer is the relationship between lawyer and client. Having committed at the outset to listening to and understanding a client, the lawyer is entitled to ask for something in return. The retainer ought to include a proposed plan or strategy and be signed off once it is settled by lawyer and client. Marshall puts it this way: The retainer should reflect the project’s goals as agreed by the community and the lawyer. It should also outline the plan of action, [that is], the means for reaching those goals. The goals and means for achieving those goals should reflect the community’s values. The retainer should be specific, it should prioritise goals, and it should delineate what strategies, if any, are so repugnant as to be off limits. It should clarify the role that the lawyer is playing. (2000, p. 222) The retainer can also be structured to promote the interests of the client, while also enabling the lawyer to partner with the client and others in a similar situation to pursue broader legal reforms. This change to the retainer challenges the usual one‑off casework approach of lawyers, and it has the potential to be tested within the practice of community legal centres.

Victoria Law Foundation Poor, powerless and in trouble with the law 31 6 Community legal centres

Community legal centres have regarded themselves as providing a different form of legal service to their poor and powerless communities. This is characterised in the following ways. • Providing a service for clients who would have no other feasible option of receiving legal advice due to their lack of ability to pay. The increasing availability of legal aid through private solicitors and the government legal aid bodies has challenged this specific purpose of legal centres, and there is debate about the impact of providing such services for free. • Providing legal advice in a more accessible and empathetic format that can reflect upon the broader circumstances and life course of the client. In essence, this reflects a focus on problem-solving principles. The effectiveness of community legal centres in this respect is affected by their location (both geographically and in relation to other services); their access criteria (that is, generalist versus specialist); the quality, experience and training of their staff; and their ability to influence those broader circumstances in collaboration with other services. The willingness of the client to see the legal centre as a partner, rather than something to depend on, in their dealings with the justice system is very important. • Using the information and experiences gained through this work to identify and publicise the issues affecting their clients, as a means of progressing law reforms to benefit the poor and powerless. Legal centres are proud of their record in law reform, often through capturing those few moments when political and social forces are aligned. While undertaking these roles, community legal centres have struggled to relate to the justice system. Simon Rice, today an academic, but with a long-standing passion about community legal centres, stated: “CLCs have for many years — longer than you may think — been either unconcerned, or concerned but confused, about their identity.” In the 1960s Martin Luther King warned the civil rights movement against “the tranquillizing drug of gradualism.” Are community legal centres enthusiastic supporters of an unjust system? Has government funding cowed the centres? Jeff Giddings cautions that community legal centres not assist “an unjust system to process the cases which are put before it.” (1992) Simon Rice warns the community legal centre movement of the dangers of becoming “part of the system”. In 2010 he proffered a provocative and challenging analysis in his address to the National Conference of Community Legal Centres:

32 Victoria Law Foundation Poor, powerless and in trouble with the law The State either absorbs revolutionary proposals for change — and their advocates — into its own system of its decision-making, or it stigmatises the proposals and their advocates as extremist and sectarian. Either way, the revolutionary voice is ‘finished’ as a voice for change… The solution is to avoid being defined in or out, and thereby to remain unfinished, to be neither brought into accord nor rendered irrelevant, but to remain in a state of competing contradiction. He argues that if the movement is satisfied to be “merely reformist”, this tension will not exist in the first place. He avers that community legal centres: Have been almost enthusiastic to be defined in to the state’s systems… There is no radical goal, no aspiration to challenge, fundamentally, the principles, presumptions and structure of the legal system... It was as if they had nothing more to say. This assessment was forecast by one of the founders of Fitzroy Legal Service, Peter Faris QC: Band-aid work was my preference. Because it was useful. I was wary of reform and taking on society. I thought you could achieve reform by a massive band-aid system. It was too much to try to take on the monolith. (Neal, 1984, p. 57) In the early days community legal centres were regarded as radical, partly a product of their newness. David Scott explains what he calls the “life stages” of an organisation. They are, in order: An exciting and enthusiastic establishment, often initiated by one or more charismatic people or a dramatic response to a breakdown in existing services; dynamic growth and a period of building new programs, capacities and clientele; stabilisation, adaptation, a period of levelling off and maintaining the status quo over a long period of time; demise and irrelevance or revival and redirection. (Neal, 1984, p. 34) Community legal centres were part of a broad movement which sought to develop a strong relationship between groups of people who were being unfairly treated in society. The movement looked at educational, health, housing and legal matters, to name a few, and trade unions, charities and religious groups figured prominently. Are poverty lawyers dreaming of utopia today? The American research by Ann Southworth noted that the early aim was to achieve a transformative experience for poor clients with the eradication of poverty, but that poverty lawyers today have a bleaker view of achieving radical reform through their labours. They “understood that litigation would achieve far more limited results than social reform litigation’s early champions had hoped.” (1998, p. 502) She quotes Diller: Most poverty lawyers are sceptical of the original core promise of the legal services program — that legal representation can play a major role in ending poverty in America...most contemporary lawyers have much more sober assessments of its potential. (1998)

Victoria Law Foundation Poor, powerless and in trouble with the law 33 While community legal centres have realised that major change is by definition difficult to achieve, they now know more about poverty and powerlessness. Nicole Rich’s assessment in 2009 is this: CLCs have not created major transformations in our social structures towards eliminating poverty and disadvantage from the community. However, this does not mean that CLCs’ law reform and policy work has not been effective. (2009, p. 54) One issue is the fact that poor clients cannot pay. How are they regarded, and how do they view themselves? How does an impoverished client appraise their own status vis-à-vis the lawyer? The pro bono legal relationship has elements that can potentially make the client feel disempowered. Legal work for the poor is typically described as a service. Representing someone charged with criminal offences may succeed in keeping the person out of jail, or a debt may be written off, but as Edgar and Jean Cahn warn, service-oriented programs can be: A means of perpetuating dependency rather than terminating it...this is perhaps the most serious cost of a service orientation: it neglects the poverty of the spirit in ministering to the needs of the flesh. (1964) Edgar Cahn wrote in the University of the District of Columbia Review that, when a person declares that a service provides free legal services, that person implies that the service wants to “help”: “But the message received may be very different. It may be: ‘You are getting it free because you have nothing I need, want or value’” (2000, p. 110) This approach has the potential to compound the client’s sense of disempowerment. However, this is a minor risk compared to denying access to legal representation. For community legal centres, the challenge is to clearly understand their place in a system that can provide free legal advice through multiple channels. In some cases, a client can be just as well served by a private lawyer or a Victoria Legal Aid duty lawyer. Defending people charged with crimes is defensive and reactive, but essential legal work. I would prefer that community legal centres undertake offensive work, at least in a conceptual sense. Hard work by a community legal centre lawyer and a commitment by the client will often achieve a good result for the client in court, potentially superior to that available through use of non-legal centre representation. This is because the community legal centre seeks to offer a higher quality of advice and engagement through empathy, accessibility and a long-term relationship, reflective of problem-solving principles. There is also the potential for the client’s situation to inform broader legal reform, a potential that is only realised when the client willingly partners with the legal centre. The implementation of problem-solving principles that reflect on the broader circumstances and life course of the client in the context of casework law is not easy. Lawyers marshal arguments in favour of propositions, and anticipate arguments in rebuttal. Thinking about casework and legal problems in an adversarial way is the lot of caseworkers. Thinking creatively about how people’s circumstances can be ameliorated is more demanding than thinking about an individual client’s immediate legal issues. Noone and Digney found that: There is an unstructured interviewing style in legal interviews at [the Legal Service], which positively results in a joint understanding and identification between lawyer and client of other problems linked to presenting legal problems.” (2010, p. 137)

34 Victoria Law Foundation Poor, powerless and in trouble with the law A mechanism for changing the retainer between lawyer and client that could be tried by community legal centres is the rigorous implementation of a regular legal check-up. Based in a community health centre, I have observed at close range the changes to delivery of primary health and medical services in Australia. The advent of Medicare permits the poor to at least consult a doctor from time to time, to check up on their overall health. The same concept could be applied in community legal centres. Currently, our clients visit us only when they perceive they have a major problem, when it is often very late in proceedings. If we have established a long- term relationship with the client then we have an opportunity to deal with that problem in its broader context. It is possible for the community centre lawyer to encourage clients to periodically visit a lawyer for a legal check-up. It is better for the client to deal with what is going on in his or her life sooner rather than later. Community legal centres can get out into the community, and encourage individuals in the community to come and see us occasionally for a preventative check-up. Through this, we can operationalise a changed retainer relationship between the lawyer and client. It also provides an opportunity to see patterns in our work. The broad implementation of problem-solving principles will establish a more just system. The poor, and those who are acting for them, need to continue to forge relationships with the existing structures such as the courts, government agencies, the universities and welfare organisations.

Recommendations Within community legal centres these changes should be employed: • The retainer between lawyer and client must be structured so that work done has the capacity to achieve broader change and particularly for the poor and powerless; not just to assist the individual client. • As a preventative measure to encourage early engagement with legal assistance and to place their legal issues in their broader circumstances and life course, clients should be encouraged to access regular legal check-ups with their community legal centre. • Consistent with the intention to reduce the adversarial nature of the criminal justice system, community legal centres should continue to work closely with community organisations and the justice system, including police, with a view to undertaking joint preventative programs.

Victoria Law Foundation Poor, powerless and in trouble with the law 35 Appendix: Problem-solving courts in North America

Selecting the destinations I was sitting in the Orange County Collaborative Court. The last case was announced: a “graduation”. A handsome young African-American man walked from the back to the well of the court. The lectern was turned around so that the young man could address the body of the court. It was packed. Court staff, including the judge, sat at the bar table on either side of him. The young man read an essay, which recounted his pre-court circumstances, as he deteriorated into more and more serious drug use. His time with the court covered nearly two years. He described a bleak existence, without hope, slowly transforming into a purposeful and active life. He warmly thanked the court for giving him an opportunity and for its support over the journey. On completion of his speech the judge returned to the bench, and announced: “Two felonies! Two misdemeanours! Gone!” And she banged her gavel. It has been said that an explanation is partly a confession. My reasons for choosing to visit three places in North America over three weeks in early 2011 — New York, Vancouver and Orange County, Santa Ana — are elusive. New York had not only the Centre for Court Innovation but the Red Hook area of New York. Red Hook is regarded as the model for the Neighbourhood Justice Centre in Collingwood. My impression of the impact of the courts I observed in New York is that defendants in the problem-solving courts do receive justice and they receive it locally and quickly. Instead of being held in jail for a long sentence they get out of jail quickly. They are engaged by attending programs within the court process for longer. This may well involve wearing bright blue vests and tidying up their community as part of their community work obligations. They return regularly to court for progress to be monitored. Traditional lawyers and their traditional clients stick with the standard outcome. It is predictable and known. Even if it means a bit more jail time, there is no ongoing obligation like in the problem-solving courts. I wanted to visit Vancouver, Canada, mainly because of its exemplary reputation. Their justice system is most like ours and they appeared to be the most advanced. I wondered if this could be true? California seemed to be slowly bankrupting itself with its obsession with locking up ordinary folk who had committed reasonably minor offences. I had read about a judge in Orange County who had set up a specialist court, the Combat Veterans Court. It seemed to me that those who had set up the Combat Veterans Court were not only smart, but brave. Here were street-smart and savvy Americans tackling their nation’s ‘lock-‘em-up’ mentality. The defendants were returned soldiers, trained by the country to cause detriment to others, but now back home, some were quite messed up. This was not necessarily the thinking of those who applied

36 Victoria Law Foundation Poor, powerless and in trouble with the law themselves to setting up this court, but while I was contemplating where to visit that’s what struck me. What swayed me was discovering that unlike some specialist courts which accept only the most minor and low-level crime for their remit, the Combat Veterans Court dealt with crimes of violence — including domestic violence. I got to go to other places as it turned out, such as a homeless shelter which provided lodgings to a court on its premises from time to time, but there’ll be more about that later.

New York Youth Court My visit to New York was coordinated by the Centre for Court Innovation (CCI). Red Hook was my goal, but wisely my guides left that to the very last day. Actually the heavy snow in January was the real reason I didn’t visit it till the very last part of my time in New York. Having arrived on the previous weekend, and learning that Brett Taylor from the CCI was away from New York during that week, we had a meal together. Brett is the Deputy Director, Technical Assistance, at the CCI, and a “longtime defence attorney in his previous life”, according to his boss at the CCI. Brett brought along a young friend, Johnny, and this was a valuable contact too. Johnny is keen on baseball and is hoping to play professionally after he leaves school. Johnny is one of many young New Yorkers in a jury pool for the Youth Court. I was able to learn a little about Youth Court from them both. Matters dealt with in Youth Court are low-level matters determined by a jury of peers. Punishment may be writing an essay, improving school attendance or making an apology. There is close supervision of the jurors. What I found most interesting was the personal time commitment the jury members make and how much training was provided. Those who were selected for jury duty could likely be leaders in their own communities in civics. I gather that the powers-that-have-been in Victoria are not keen on a youth court. I wonder if they have focussed too much on the young offender and not enough on the benefits that come from training enthusiastic young people about the role of justice in our society. How many young people understand and tell their peers about what the ‘Rule of Law’ actually means? Midtown Community Court On Monday 24 January 2011 I attended the Midtown Community Court. Danielle Malangone is the Deputy Project Director and originally trained as a psychologist. The court is located in the entertainment area of Manhattan Island but, because of the comprehensive underground rail network, it is accessible to clients from all over New York. Having been established in 1993 it is regarded as the forerunner of the problem-solving courts. Its brief is described as “quality-of-life offences” such as prostitution, fare evasion, unlicensed vending, vandalism and shoplifting. The court has undertaken innovative work within the community. One matter Danielle mentioned was meetings between defendants and representatives from local business. She gave the example of unlicensed vending, which was regarded as a victimless crime. At the meeting, the shopkeepers explained that when someone sells CDs a few yards from a record store, they are not paying rent for the space like the proprietor who then needs to charge more and loses business. Defendants learned something about how businesses work, and the shopkeepers got to have a say and incidentally learnt something about the workings of the justice system, at a local level.

Victoria Law Foundation Poor, powerless and in trouble with the law 37 I observed the Midtown Court in action. It is a busy and noisy court; prosecutors, District Attorneys, sitting on the side of the Bench, not directly facing it. Defence lawyers didn’t have any seat, this was explained in part because of how fast they spoke and how little they actually said. The most unusual aspect, to an Australian lawyer, was the fact that the person who announced “Case dismissed!” in such matters was not the judge himself but a person in front of him wearing a police or security uniform; a member of the judge’s staff I assumed. Midtown is a fast- moving court. The Community Court requires a plea of guilty before it functions. Approximately 30% of matters are redirected to the traditional courts because the defence do not enter a plea of guilty. This may be because lawyers and their clients are looking to receive a “time-served” order. “Time-served” means that a court agrees to order the release of a defendant, that person having served the time up until then on remand. This is easier for the lawyers, and the client does not have to confront their under lying issues, just remain in custody for a period of time. Prostitution cases are an exception; those cases remain at Community Court whether or not the client entered a plea of guilty or not guilty. The Community Court operates with reference to the “principle of immediacy”, which is designed to encourage compliance with any orders of the court. The court also accompanies all clients through the court process personally so they don’t get lost, or depart the building before matters are finalised. Volunteers are recruited for the purpose. The principle of evidence-based practice was raised many times by many different people in my travels. The purpose of many of the Midtown Court programs is not to solve, but to “motivate and inform”. An example of a program is a 90-minute talk on the dangers of drug use, an order commonly imposed on minor drug users. Some at the court speculated that it ought to look at the behaviour more closely to become aware of the deeper reasons for it. However, this is difficult, particularly because the offence itself is usually a minor one in the criminal calendar, and it is therefore difficult to justify a significant time and resource commitment by the defendant and the government. Another difficulty is that many judicial officers are yet to be persuaded of the efficacy of that approach. In material provided by the Center for Court Innovation: Eighty-seven per cent of defendants at Midtown completed their community service mandates, compared to approximately 50% of the defendants who were processed at the downtown criminal court. Although Midtown is less likely to use jail as an initial sentence, Midtown is more likely than the downtown criminal court to impose jail as a secondary sanction on those offenders who fail to comply with initial court orders. That afternoon I visited the CCI and had meetings with staff. I was informed that defence counsel have not always been involved in initiating problem-solving courts. The notable exception was the Bronx Defenders who I was to visit the following day. The courts operate with an emphasis on establishing value for money. I take this to mean that courts can assess the benefit, within the community, of programs established to address problems which manifest themselves in criminal behaviour.

38 Victoria Law Foundation Poor, powerless and in trouble with the law Bronx Defenders The following day I visited the Bronx Defenders, and their local courthouse in the South Bronx, which reminded me of large public housing estates endlessly connected to other large housing estates, and a host of tired buildings. Seann Riley is the Deputy Director. The genesis of Bronx Defenders is that, after government funded legal aid lawyers went on strike about 15 years ago, the then Governor of New York became annoyed. He offered contracts to anyone who wanted to do the work. The founder of Bronx Defenders, Robin Steinberg, saw an opportunity and the rest is history. As I toured the building, I thought about the history of my own workplace. The health and legal parts of the West Heidelberg Centre had similar resources when the centre was established, but funding to the health component of the centre today far surpasses funding to the legal component. The staffing of Bronx Defenders is considerable, with teams of professionals working closely together — not just lawyers, but other professionals such as college students, retired police officers — and there is no physical barrier to entry. Morale among staff is high and they impress as knowledgeable and enthusiastic, and thinking innovatively. The place is welcoming and community members can come in and make a phone call or get a cup of coffee. I was given a different perspective on problem-solving courts while at Bronx Defenders; the problem-solving courts were regarded as “too treatment and rehabilitation focussed”. Bronx Defenders were troubled that service providers reported directly to the court, particularly in the event of client ‘failure’, for example; clients slipping back into drug use for a period of time. Bronx Defenders want the experts working directly with them to better use their expert knowledge. Bronx Defenders’ position was that a person coming off an addiction will not usually be successful immediately, but rather will progress through trial and error. This view is backed up by medical experts. The Bronx court I observed is the Arraignment Court. There were a considerable number of defendants in custody, being released on bail by the court, a large number of cases, and all moving quickly. I witnessed the phenomenon of the judge calling lawyers up to the bench for a discussion. I was to the side of the bench, where the defence counsel were based; their staff busy keeping track on their computers. One matter in particular took my attention and made me wonder what those in the body of the court may have been thinking as events unfolded. The defence lawyer pointed to his client’s wrist, which had been plastered, and alleged that the injury had occurred while his client was in police custody, and further, that it was a result of misbehaviour by the police. He and the District Attorney approached the bench. There was a quiet discussion between all three and when everybody resumed their places, the judge announced that the defendant was to be bailed. In my opinion such practices undermine an essential strength of courts — that justice must be transparent and open to the public.

Victoria Law Foundation Poor, powerless and in trouble with the law 39 Drug Courts, Staten Island Youth Justice Centre, Harlem Community Justice Centre Australia Day, 26 January 2011, comprised a series of meetings in the morning at the CCI, followed by a visit to the Harlem Community Justice Centre. The drug courts have been incorporated into many traditional courts. Valerie Raine is the Director of Drug Court Programs at the CCI. In New York State alone there are nearly 100 drug courts. A five year long research project evaluating drug courts is due to report soon and it is likely to conclude that they do reduce recidivism and substance abuse. The question as to whether the drug courts address poverty appears to be resolved in the negative. The research underlines the complexities of addressing poverty. Life without drugs is an achievement. But the absence of offending, and drugs, after a life in which drugs has played a significant part, does not necessarily mean that the individual will be able to compete on equal terms against others. Life without drugs does not guarantee success in a competitive world. Martin Luther King uses the metaphor of a sporting competition: “He who starts behind in a race must forever remain behind, or run faster than the man in front.” (1967, p. 120) This is understandably difficult for someone who has turned to drugs as a way of dealing with life’s travails. There is an appreciation that drug courts have to protect people’s constitutional rights and the defendant ought to have access to relevant resources, regardless of their plea. The role of prosecutor as gatekeeper was discussed. In New York, a prosecutor may not object to a case going to the drug court. Training for those on the bench is two days, focussing on the psycho-pharmaceutical; that is, the effect of drugs on the brain. Melissa Gelber is the Project Director of the Staten Island Youth Justice Centre. At the centre, mistakes and misdemeanours by young people are responded to through an approach of learning and training. Perhaps this is not the perspective of the young person who has to front a group of his peers and answer for his or her behaviour. A jury of young people between 14 and 18 years of age deal with matters relating to young people who are 15 and under. Any young person may be selected for jury service, including young people who may have been respondents in the past. A small honorarium is paid to jury participants. It is a peer-led process, based on restorative justice and repairing harm to the community. Referrals may be made by the Department of Probation, the criminal courts, or the police. Sanctions, essentially a discretionary process, may include a reflective essay, a written apology, or community service such as cleaning graffiti. Workshops addressing behaviour modification, decision-making and goal setting, were also available. These activities are not treated as punitive. A second program, “Project Ready”, targets ‘open delinquent’ cases. These matters are referred by court. The court takes the plea, hears the case, and determines whether to refer it to Project Ready. When Victorian children’s courts impose a probation order, for example, that decision finalises its involvement with the child. In Project Ready cases, the court maintains the matter and determines the disposition. The court may be informed in a particular case of mental health condition or drug issue, or academic failure. Curfews and conditions are imposed, including attendance at after-school programs, compulsory school attendance, being at home by a certain time each evening. These conditions are monitored by means of telephone calls to the child’s home to speak to the child and their parent or guardian directly. Calls are also made to the school. These conditions operate for a maximum of four months.

40 Victoria Law Foundation Poor, powerless and in trouble with the law The third program, offered in conjunction with the agency New York Foundling, is used when a family can no longer cope with a child. A referral is made for a 21-day period to a foster home. Therapeutic programs are set up for the child and their biological family. There are invariably established problematic behaviours to respond to. While it is early days in this program and the numbers of participants are still low, all have been reunited so far with their family. The key benefit of this program is that it places the young person in the context of a family, and supports for their own family are instituted alongside working with the young person. A fourth program involves after-school activities for targeted individuals with programs scheduled at a time of day when a young person is perhaps more likely to get into trouble. Significantly, the young people themselves seem invariably happy to attend these programs. The Harlem Community Justice Centre, based in East Harlem, is striking, majestic and historic. While problem-solving courts pay their way and are claimed to be cheaper and more effective than the alternative, they do require large premises. The initial outlay is the big cost with problem-solving courts. John Megaw, the Deputy Project Director, escorted me around the building, and I was able to observe the court in operation, and speak with the Presiding Judge, Ruben Martino, as well as lawyers who act for defendants and the city. The discussion confirmed that a charge against a juvenile is not laid at the option of the police officer who deals with it, but rather follows involvement by both the probation service and the District Attorney. The charge will not be laid unless all agree to do so. I came away with the view that in comparison with Victoria’s Youth Justice System, this probation service has a far more significant and beneficial role, because it participates virtually from the outset of police involvement. Red Hook Community Justice Center On 28 January 2011 I visited Red Hook Community Justice Center, which is housed in a former school and had been derelict before it was chosen to be the location for the Community Justice Centre. Artwork was a feature of the center, and the responsibility of managing it was that of one staff member. This shows their commitment to creating a pleasant space. Julian Adler is the Project Director. The center’s criminal jurisdiction covers three precincts, approximately 200,000 people and the housing jurisdiction is limited to the district of Red Hook. I met Judge Alex Calabrese initially in Chambers, and later in court, where he asked me to sit beside him on the bench. He runs his court in a genial way. Like other courthouses I visited, there was very high morale, staff were comfortable with each other and knew each other well. While I cannot describe the clients as invariably sunny in disposition, they were purposeful and engaged, admittedly a peculiar term to use for defendants in court. There was a powerful connection to the local community and the model struck me as interventionist. I gained the impression that the community of Red Hook had gained socially and economically from the decision to open a problem-solving court there. Like all of the communities I visited, the visits were very short, and I cannot conclude that while there have been remarkable improvements, the problem-solving courts are the sole reason for such changes.

Victoria Law Foundation Poor, powerless and in trouble with the law 41 Vancouver, Canada Downtown Community Court, The first week of February 2011 was spent at the Downtown Community Court in Vancouver. Vancouver is regarded as the city with the best weather in Canada. It boasts a liberal lifestyle. I wondered if this is the reason why so many drifters and street people are visible in the downtown area of Vancouver. This characterisation of the clients at Downtown had been shared with me: “60% have mental health issues, 70% are drug addicted, and 100% aren’t sleeping.” This seemed to me to be a universal categorisation. I could not but help think of my own clients who, if queried, invariably acknowledge a lack of sleep. Vancouver hosted the Winter Olympics in March 2010, and I understand that the city built additional accommodation. Perhaps that attracted more people to Vancouver. As a Melbournian I felt comfortable in Vancouver; it rained. One of the housing agencies partnered with the Court rejoices in the name Rain City Housing. “Best weather in Canada” doesn’t actually mean ‘good’ weather. My guide for the week was Allan Shoom, who is the coordinator of the Court. Allan combines knowledge and history with reflection. He and a prosecutor were tasked with the responsibility of setting up the court. Downtown Community Court is located in a large building; a converted remand centre. No doubt it presented quite a problem for the architects. It was described to me as a “1970s boutique jail”. Prisoners are held in the floors above the court in 16 cells. While Australian and Canadian courts can be busy, they are no match for New York courts in terms of noise. This court was formal in the way of Australian courts. Matters before the court seemed to include mid- and high-range offences. The court had contested bail matters before it, again reinforcing the similarities with the Melbourne courts I have appeared in. Over the period, I had the opportunity to observe and interview Judge Tom Gove and Judge Elizabeth Burgess. I also joined a session for about a dozen people and interviewed a lawyer who is a stern critic of the court. I gained a sense of the court day. It is quite different from the one I was used to. Our court days are not so much for the public who are required to attend court, but for the court personnel — the professionals and staff who have a formal role to play in court. The activities at Downtown Community Court are structured for clients. It means an early start to the day. Ethical, practical and organisational issues receive an airing between the professionals in order that the court can achieve finality in sittings on the day. In describing downtown Vancouver, Allan Shoom asserted that there were no street gangs to speak of. He described the area serviced by the court as “including our skid row”, and that seven disparate communities had been identified. He explained, “You have to understand your neighbourhood before you change [it].” In the establishment of the court, there was debate over which should come first, the establishment of the court, or the facilities and agencies around it? Some argued for resources first which is no surprise given the chronic shortage. The establishment committee decided that it was to be “court first”. The decision was also made that the resources brought into the court would only be used for those people who were appearing before the court.

42 Victoria Law Foundation Poor, powerless and in trouble with the law The Downtown Community Court is very accessible to the city centre. On arrival, there is substantial security screening to go through before being able to get into the court. There had been debate about this security, with some arguing that it would put a few people off from accessing the services. Incidentally, the Neighbourhood Justice Centre (NJC) in Melbourne is the clear winner in this regard; I commend its entrance layout which you enter in a zigzag way, through glass walls. Security staff are positioned to observe each person as they enter, but in a discrete way — a big tick to the Melbourne NJC architects. For those brought to Downtown, the court seeks to provide all services in a timely way and inside the court itself. The aim is that those who are in custody are to be brought before a court on the same day; those who are not in custody, within five days. The key to managing this rapid process is a meeting of a range of people each morning at court at 8.30 am. This includes probation, health, forensic, income assistance, police, and victim services, together with lawyers. The meeting reviews five databases, including probation and police histories. A profile is created without the need for a direct interview with the individual. “Tombstone information” was the term used to describe the data obtained. Earlier, the person being processed is spoken to by a number of people, starting with a defence lawyer who explains the process and seeks consent. If consent is not given, matters do not proceed in this way and the person’s case is transferred out. The court does not run trials, but sentences can be as long as 18 months. Problem-solving courts are not soft on crime. Court personnel meet by 8.30 am and the courts aim to complete ‘open court’ business by 3 pm. Programs and activities such as Healthy Eating, Literacy, Money Skills and Life Skills are planned in three-month blocks at the court; I had the offer of attending the acupuncture class — I declined. I learned that volunteers take people around the court, and to programs, so they don’t get lost. Staff mentioned that court conditions don’t as a rule include urinalysis, for a couple of reasons, including cost, and the likelihood that a user will lapse from time to time, particularly in the early stages. In any case, court conditions don’t usually include abstinence. I was permitted to sit in on an 8.30 am meeting, known as a triage meeting. Triage is a medical term, and in that context means deciding which people get treatment first, according to the severity of their presenting condition. These meetings were an attempt to anticipate the kind of supports the various persons would need, and how they were going on their programs. Importantly, this is a group of professionals drawn from quite different areas of practice, all of whom could and did have a say. On the other hand a private lawyer who is part of the court roster argued that the court was coercive in nature; that clients on welfare and with significant forensic history were punished by the court for failing to attend programs, that clients may have a defence, but abandon the defence, so that they can stay in this court system. She argued that there was no space available for the profession and, linked to that, no confidentiality. The lawyers who worked in the building were “captured” by the system, she asserted. Finally, she considered that the court imposed too many bail conditions on defendants.

Victoria Law Foundation Poor, powerless and in trouble with the law 43 My observations of the court proceedings reinforced the hereditary relationship between the Canadian and Australian court protocols. But I did notice something which would not occur in Australian courts. A defendant was called up to the bench after matters had been resolved, and the judge quietly and comprehensively explained directly to the young man what was going to happen, and what was expected of him. I later raised this practice with the judge in Chambers who regarded it as a deliberate and effective practice in the court. The client session I sat in on, “Smart Recovery”, started incongruously. One participant had gained the impression that I was a Canadian lawyer attending the session because I had a drinking problem — he seemed quite relaxed about that — and a second person thought I was a “Narc”, a narcotics agent. He was not so relaxed. He interrupted quite a few times as others were speaking, and was eventually asked to leave by the coordinators. It was put to him that he was clearly affected by something (he did not disagree) and he could return the following week. The focus of the session was that addiction is not so much a disease but a bad habit. I was impressed with the approach and the session. My observations of court later that day were punctuated by cases where persons were charged in relation to being on railway premises. I was puzzled by this, thinking it must be a specific charge such as begging, or aggressive begging but the cases were in effect trespass cases. The persons were released on the basis that they not attend particular stations. I must also mention that there was a contested bail case where the judge did indeed impose a sobriety condition as part of bail, over the objection of defence counsel. While this challenged an earlier conclusion, it is a segue into the next place I visited, which embodies that approach.

California Orange County Collaborative Court I spent the second week of February 2011 in Orange County. The court has facilities for various services, and is a converted department store. There was formal security at the entrance, and a single courtroom. When I entered the courtroom I noticed to the left-hand side of the court a large cage in which defendants in orange boilersuits were sitting. They remained in this area impassively until their cases were called. I did notice a couple released into the open body of the court; they had been bailed by the court. I gained the impression of meticulousness by the court. The member of the court staff who showed me round on my first day, Jim Mahar, explained: “We will have an impact — in order to have a positive outcome.” Programs run for anything up to two years. This initially came as a surprise. Charges appeared to be at the low end of the criminal range. The court sits in a state which has jailed many of its citizens. Judges had to be persuaded of the efficacy of the court’s programs. Judge Wendy Lindley of the Orange County Collaborative Court told an audience that, some years earlier, a judge from a different jurisdiction had described her dismissively in a judges’ meeting as “a social worker in a gown.” The sentences handed out in this court are not insignificant. I observed bail conditions for a relatively minor offence that were, according to the judge, more onerous than would occur on a sex offender program. One person was told: “no drugs, no alcohol, and no bad friends, all right?” Another told the court that he had been in custody “for forty days already.” A person was removed from his program because he had “picked up” new charges. The fact that these appeared to predate his involvement in the court’s programs was irrelevant.

44 Victoria Law Foundation Poor, powerless and in trouble with the law Having arrived in sunny California from the snow-covered streets of New York and the rainy weather in Vancouver, I recalled a couple of lines from the poet, e e cummings: “yes is a pleasant country; if’s wintry” There were no “ifs” or “buts” in this court. My time at the Orange County Collaborative Court led me to the conclusion that sympathy and compassion is not to be mistaken for faintness of heart. The court is hardnosed in its approach. Success is a wall in Chambers crammed with photos of babies in good health. These were healthy children of defendants who had successfully completed court programs and were no longer dependent on drugs or alcohol. Like Red Hook Community Justice Center in New York, there was some magnificent artwork on the walls. The court has a number of innovative divisions. They include the Combat Veterans Court, the Opportunity Court, the Recovery Court, the Outreach Court, the Drug Court, the Driving Under the Influence Court, (DUI Court), and the Whatever It Takes Court, (WIT). The court names give some sense of the court’s methodology. While the WIT Court does deal with matters up to felony level, the charge must not be an offence involving violence, and a significant history of violence will also exclude the person. The person must be assessed as being homeless or at risk of homelessness, and be diagnosed as severely and persistently mentally ill. The program runs for a minimum of 18 months. The partners to the program are the Health Care Agency, the Mental Health Association of Orange County, the Public Defender, the District Attorney, probation, and the court itself. The program offers individual and group counselling and support services, including housing and medical referrals. Substance abuse is directly targeted. A Personal Service Coordinator is appointed for the duration of the person’s case. A statement in the court’s literature in relation to the Drug Court explains the Court’s approach. It affirms: The mission of the Orange County Drug Court is to provide a non-adversarial judicial response to selected non-violent offenders charged with drug use — providing a comprehensive treatment and supervision program that includes drug education and treatment, as well as vocational and employment components so that each participant develops a level of self-sufficiency and becomes a productive, responsible member of the community. It is difficult for me to adjust to the notion of a court being “non-adversarial”. It is similar to the inquisitorial system. It is generally accepted in the inquisitorial system that there is not a presumption of innocence. In these cases, the court does not deal with defendants until there has been a plea of guilty. There is no “search for evidence” supervised by the court, as there is in the inquisitorial system. The judge nonetheless has an active role. I was able to sit in a couple of the specialist courts. I have earlier noted that the Homeless Court was held in a homeless shelter. It made me reflect on my irritation about court attire. I can put up with the suit and tie for court officials such as judges and lawyers, but not wigs and gowns. The deployment of the gown at the homeless shelter was significant. The judge arrived, chatted to a number of people, then walked to the front of the room, and donned the robe. This had the effect of formalising proceedings from this point of time, and matters proceeded in a suitably respectful manner.

Victoria Law Foundation Poor, powerless and in trouble with the law 45 The sentences of the Homeless Court are usually focused on activities run in the homeless shelter, such as life skills programs, self-help meetings such as Alcoholics Anonymous and Narcotics Anonymous, job training and literacy skills. Attendance at activities in the shelter replaces the traditional court penalties such as fines. To a middle-class generally well-organised person, regular attendance at programs may seem hardly a penalty. But for some, attendance is not effortless. Assistance, a focus and a sense of purpose are essential. There were a range of people on hand at the shelter. One person deals with anxiety and depression issues, another prepares tax returns. Two people work with veterans, and another organises showers, meals and employment. There were lawyers, housing services, and a job coach who helped the homeless prepare job applications. Rounds of applause were given on quite a few occasions for the defendants. The Combat Veterans Court was quite an experience for me. For a start, I did not expect to see so many young faces among the various defendants. There was an older man who told the court that he had been in jail for 47 years in total, relating to six court cases. He seemed to me to be the exception. Most were much younger. There was unexpected humour during proceedings. At one point the judge was asking a defendant whether he had maintained the same group of people as when he had been offending, and he responded: “No, they are not part of my support network, judge!” Another told the court that he was well advanced in his preparation for running a marathon. Again, there were quite a few rounds of applause from the floor. There is always one exception. He had returned a “dirty test” for alcohol the day before and was told in a matter-of-fact way by the judge that he was in custody to be released the following morning at 6 am. Two meetings the following morning were then set up by the court. The judge described such court intervention as “flash incarceration”, with the focus being on quickly addressing poor decision-making. The person was placed in what looked like a jury box to the side of the court room. Handcuffs were placed on him behind his back. The person whose words completely prevented me from continuing to take notes was an older man who told the court: “I have had to change.” He presented quite well to the court. He quietly declared: “I have discovered that I am a nice guy.” Interestingly, the court had debated whether to include domestic violence cases, and had agreed to do so after consulting with experts, who pointed out that combat veterans came from a violent world. In such cases, the court also has a hearing with the victim. As something of a related issue, in an interview with a member of the court staff later in the week, I was told that more and more police are being picked up and charged in relation to domestic violence in Orange County. The inference was that it has been a long-standing issue, but that in the past, police didn’t charge police. It made me wonder about escalated levels of violence by the police in their private lives, given the court’s reasoning about combat veterans. I attended an experts meeting which was for the group of defendants not before the court that day, but the following week’s list. Lawyers and the judge were present, and played a significant role as they listened to various representatives describing how the defendants were progressing on their programs. There were questions from the floor, one about persons using narcotics for pain relief, and another about medical marijuana. It was clear that all mind-altering substances that showed as a dirty test would be taken into account.

46 Victoria Law Foundation Poor, powerless and in trouble with the law In California, the term “jail” is used for locally run detention centres, and are for sentences up to a year. The State runs the rest. It is not unheard of to have a person up to 30 days in jail, that is, in the local area, in order to ‘dry out’. Jails are more sterile, a more controlled environment and, as in Australia, a high proportion of inmates have mental health conditions. Interestingly, reflecting expert advice, the court avoids dealing with particular kinds of mental health conditions, especially those with personality disorders and those who exhibit narcissistic behaviour because they are often not successful in the various court programs. The activities were regarded as too easily disrupted by one person, whose needs were too great for group activities. (I would imagine that those people were more likely to be considered for Vancouver programs.) For those who attend the results were good; more than 70% do not reoffend. On the Thursday of my week at Orange County I sat in on the standard meeting of professionals prior to the Drug Court. It was attended by about 10 people, including the judge and lawyers. It seemed to me there was much negotiation about who would be included in which court, and possibly which programs they could be placed into. Although I had been advised that people with certain psychiatric assessments were excluded, I observed that a couple of people with personality disorder-type diagnoses were considered for the various courts. I gained the impression that these people were likely to be monitored more closely to see how they were faring. I struggled with the terms and the numbers which ricocheted around the room. I present the following direct exchange, by way of illustration: (District Attorney): “It’s a 10-WF, a 10-90!” (Judge): “He has a TD.” (Public Defender): “It’s a C-55!” Those attending the meeting all knew what it meant, bar me. My guess is that the exchange was an attempt to finalise the charges that would be proceeding in open court. The equivalent in the jurisdiction I work in would be say whether an assault was a “reckless conduct” assault as against a “common assault”. The first is a Crimes Act 1958 matter, the second a Summary Offences Act 1966 matter. The seriousness of the penalty is reflected to some degree by which provision proceeds as the major charge. There was discussion, again including the judge, about how to characterise a particular set of offending involving introducing drugs into what was indeed described as “the Cage”, referred to earlier. The person representing the probation service initially asserted that the behaviour seemed “sophisticated” but changed her mind after discussion. My final court observation was at Drugs Court. The first thing I noticed was the large number of people quietly waiting inside and outside the court, some 30 minutes before the court commenced proceedings. It became clear once court began that a small number of them appreciated that they would be shortly placed in custody overnight for certain behaviours.

Victoria Law Foundation Poor, powerless and in trouble with the law 47 One defendant told the court that she had “completed the Twelve Steps…and I’ve met my great-grandfather!” Another said to the court: “I’m not going too well, your Honour”. The representative from probation told the court that that defendant had been “working long hours, and has only missed one session.” After inquiring about the defendant’s interest in doing community work, this was agreed and so ordered. The next case moved quickly. All I discerned was the judge saying: “You will be in custody till 6 am tomorrow. See you back on the 24th” The next person told the court that he had had a job interview that morning and declared: “I wasn’t the best dressed, but I was the most personable. And tomorrow your Honour, I am having lunch with my father. I haven’t seen him in 16 years.” Another answered his name, and was almost immediately placed in “the Cage”. Again, it appeared to be an infraction, because he was to be released at six o’clock the following morning. There was no hesitation, no discussion between the bar table and the bench, and no argument. A man presented an essay to the court, punishment because he had arrived six minutes late for a session. After court rose, I spoke with a clinician who was in attendance at the court meeting in the morning and who played a role at court, explaining how various defendants had been going in their lives, and on their programs. He said he had been part of the traditional system, that there were ethical issues for the professionals to work through with the Collaborative Courts, that defendants have the court process explained to them, and that those who participate: “choose the court, with all its implications.” He declared: “I have seen both systems. This one works.”

48 Victoria Law Foundation Poor, powerless and in trouble with the law References

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