Arie Freiberg

Penal populism, sentencing councils and sentencing policy

1. Penal populism: sentencing councils and sentencing policy, Arie Freiberg and Karen Gelb 2. Sentencing policy and practice: the evolving role of public opinion, Julian V. Roberts 3. Penal populism and penal scandal in New Zealand, John Pratt 4. Dealing the public in: challenges for a transparent and accountable sentencing policy, David Indermaur 5. Myths and misconceptions: public opinion versus public judgment about sentencing, Karen Gelb 6. The role of the public in sentencing policy development under the Minnesota Sentencing Guidelines, Richard S. Frase 7. The failures of the United States Sentencing Commission, Judge Nancy Gertner 8. English sentencing guidelines in their public and political context, Andrew Ashworth 9. The New South Wales Sentencing Council, The Hon Alan Abadee AM RFD QC 10. The Sentencing Commission for Scotland, Neil Hutton 11. The Victorian Sentencing Advisory Council: incorporating community views into the sentencing process, Arie Freiberg 12. A perspective on the work of the Victorian Sentencing Advisory Council and its potential to promote respect and equality for women, Therese McCarthy 13. Sentencing reform in New Zealand: a proposal to establish a sentencing council, Warren Young 14. Proposals for a sentencing council in South Africa, Stephan Terblanche 15. A federal sentencing council for Australia, Australian Law Reform Commission 16. Institutional mechanisms for incorporating the public in the development of sentencing policy, Neil Hutton 17. Does it matter? Reflections on the effectiveness of institutionalised public participation in the development of sentencing policy, Rob Allen and Mike Hough

Psychiatry, Psychology and Non-Adversarial Justice: From Integration to Transformation

This article discusses the nature of interdisciplinary studies and the contribution that they have made to the development of law and legal practice. It discusses transitions from innovation to institutionalization in organizational structures and how individual disciplines can merge or coalesce to form new fields of learning. It explores two of the new perspectives that have emerged from interdisciplinary studies, in particular, therapeutic jurisprudence and non-adversarial justice. It argues that there a need to move from a ‘law and’ (another discipline) approach to understanding and solving problems to a more integrated approach to legal theory, practice and education.

Post-Adversarial and Post-Inquisitorial Justice: Transcending Traditional Penological Paradigms

Criminal justice systems are under constant strain. Rising case loads, crowded court dockets, growing prison populations and high recidivism rates have resulted in growing frustration with systems that have been criticized as being expensive, out of date, complex, unfair, slow and lacking regard for victims of crime and for the public generally. One consequence of these criticisms has been a search for different and innovative methods of dealing with crime and associated social problems. In a number of common law countries, theories and practices of restorative justice and therapeutic jurisprudence have developed, creating more inclusive, optimistic and positive frameworks for justice systems and transforming the ways in which dispute resolution systems are conceived of and operate. In these jurisdictions, the growth of interest in different modes of dispute resolution reflects a deep disenchantment with the traditional, confrontational techniques that are inherent in the common law adversarial system. Though therapeutic jurisprudence and restorative justice are the best-known of such theories, they are not the only ones to have been developed, articulated and practised. The purpose of this paper is to suggest that some of these innovations could be considered by inquisitorial systems, albeit with due regard to the historical, political and cultural differences between the two systems. It argues that adversarial and inquisitorial justice systems should be transformed rather than hybridized, hence the terms ‘postadversarial’ and ‘post-inquisitorial’ justice.

Disbelieving Suspense: Suspended Sentences of Imprisonment and Public Confidence in the Criminal Justice System

Abstract This article examines the ambivalent nature of suspended sentences of imprisonment and public reactions to them. In Australia, and elsewhere, they have created confusion, have been in and out of political and judicial favour and have been repeatedly modified. The article discusses the Victorian Sentencing Advisory Councils review of suspended sentences, with particular reference to public perceptions of the sentence and the councils various proposals for reform. It examines, in particular, four issues relating to this sanction: (1) the meaning of punishment, (2) the severity of punishment, (3) truth in sentencing and the nature of substitutional sanctions and (4) the appropriateness of the sanction for specific offences. The article concludes with a discussion as to whether public perceptions matter in the broad sentencing context and notes that public perceptions are only one of a number of factors driving sentencing reform.

The Four Pillars of Justice: A Review Essay

Review(s) of: The Four Pillars of Justice by J.V. Roberts, L.J., Stalans,D. Indermaur and M.Hough (2003) Penal Populism and Public Opinion: Lessons from Five Countries. New York, NY, Oxford University Press. 244 pp, ISBN 0195136233. Includes references. Includes endnotes.

Measuring jurors views on sentencing: Results from the second Australian jury sentencing study

This paper presents the results of the Victorian Jury Sentencing Study which aimed to measure jurors’ views on sentencing. The study asked jurors who had returned a guilty verdict to propose a sentence for the offender, to comment on the sentence given by the judge in their case and to give their opinions on general sentencing levels for different offence types. A total of 987 jurors from 124 criminal trials in the County Court of Victoria participated in this mixed-method and multi-phased study in 2013–2015. The results are based on juror responses to the Stage One and Stage Two surveys and show that the views of judges and jurors are much more closely aligned than mass public opinion surveys would suggest.

Penal diversity within Australia

In this article, we start from internationally developed models explaining growing punitiveness and increasing imprisonment rates, to analyse the penal situation within Australia. While the eight Australian jurisdictions share many of the characteristics that have been identified as being important determinants of the size of the prison population, local features of these societies result in significant differences in punishment. The aim of the article is to describe the main drivers of penal policy in four Australian states (New South Wales, Victoria, South Australia and Western Australia). Specific attention will be paid to the situation of Indigenous peoples and the impact of the country’s colonial history. It will be argued that the explanatory models can explain the trend in the Australian imprisonment rates, but not the different levels between these rates.

Ranking offence seriousness in reviewing statutory maximum penalties

Some ranking of the relative seriousness of criminal conduct for the purpose of allocating statutory penalties is needed. A number of different approaches are possible. This article examines those based on assessments of harm and culpability; analysis of current judicial sentencing practices; and public opinion research. It discusses problems inherent in each of these approaches. A combination of techniques is applied to some 500 Victorian offences, both serious and trivial, in order to produce a revised ranking of statutory offences for the purpose of rationalising their accompanying sanctions.

Reward, Law and Power: Toward a Jurisprudence of the Carrot

Positive sanctions play an important but underestimated role in societal regulation. This article examines reward in political and legal theory and explores the conceptual and practical dimensions of reward in the civil and criminal law. It argues that the mechanisms and ideology of reward have facilitated state intervention into private and corporate activity, delayed or denied due process and maintained social inequality. Possible changes in the nature of social control, from punishments to institutionalized rewards through the welfare state, are observed and the implications of such a change for sanction theory are discussed.

Drug Courts: Sentencing Responses to Drug Use and Drug-Related Crime

Victoria’s specialist drug court represents a move away from a focus on individuals and their criminal conduct to offenders’ problems and their solutions. Victoria’s first drug court opened its doors at the Dandenong Magistrates’ Court in May 2002. It is the fifth such court in Australia.1 Drug courts were opened in New South Wales in 1999, Queensland in 2000, South Australia in 2000 and Western Australia in 2001. The Northern Territory has announced its intention to open a drug court in 2003 and the Queensland court will soon be extended to two more locations in Northern Queensland. Two specialist youth drug courts have also been established. The New South Wales Youth Drug Court commenced in July 20002 and, in Western Australia, a youth drug court scheme operates under the Young Offenders Act 1988 (WA).