Criminal justice, police powers and mental health

Former US Attorneys, DOJ Leaders, Attorneys, and Judges urge President Trump to release vulnerable individuals from custody due to COVID-19 concerns

Over 400 Former US Attorneys, DOJ Leaders and Attorneys, and Judges Urge President Trump to Release Vulnerable Individuals from Federal Custody to Avoid Deadly Outbreak of COVID-19

In a letter from 405 former DOJ leaders, attorneys, and federal judges , including 35 U.S. Attorneys, these criminal justice leaders urge President Trump to take rapid action to release medically at risk individuals from federal custody to protect them and our communities from the catastrophic spread of COVID-19 in federal facilities. The letter calls on President Trump to use his executive power to commute sentences for vulnerable individuals, urge policies to limit the number of new people entering federal custody, and secure emergency funding for reentry services and support of state and local efforts to similarly address the spread of COVID-19 in custodial settings. For more, read the release and letter.

The signatories to the letter, like other criminal justice leaders in recent weeks, came together in response to the current public health emergency. These former prosecutors, attorneys, judges and law enforcement leaders stressed the immense vulnerability of incarcerated and detained populations to the deadly COVID-19 virus due to dense living conditions, poor access to quality healthcare, and the increasing elderly population behind bars.

In the letter, they urge the President to support efforts to mitigate the spread of COVID-19 among those held in federal custody – as well as the many individuals who work in these facilities and return to their community at the end of each shift – by:

  • Using his executive power to sensibly commute sentences for the elderly, those who are medically vulnerable and individuals who have already served most of their sentence, provided that they do not pose a serious risk to public safety;
  • Encouraging and establishing policies to promote the limitation of new custody to only individuals who present a serious and demonstrable risk to public safety;
  • Creating a bipartisan emergency advisory group to quickly guide this process and ensure the most vulnerable are protected;
  • Urging the Bureau of Prisons to take measures to ensure correctional staff receive regular testing as well as health care support, including full pay if they become sick with the virus; and
  • Supporting emergency funding for prevention, treatment, reentry support, and incentivising state and local governments to address the public health concerns in their own jails and prisons. 

“We, as former United States Attorneys, federal judges, Assistant United States Attorneys, and DOJ lawyers and leaders, understand the obligation to protect the safety and wellbeing of everyone in our community….To prevent the rapid spread of COVID-19 in facilities under your federal control, we urge you to start commuting sentences immediately.”

From: fairandjustprosecution.org/


NSWCCL recently issued statements regarding COVID-19 concerns and the NSW prison/detention population -

Statement: Strong Leadership by NSW Attorney General on parole, steps needed for remand population


Reducing the risk of COVID-19: reducing the number of people in custody

 

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Statement: Strong Leadership by AG on parole, steps needed for remand population

March 27, 2020

Copies to:
NSW Attorney General, Mark Speakman SC
Anthony Roberts MP, Minister for Counter Terrorism and Corrections
Peter Severin, Commissioner, Corrective Services NSW
Gary Forrest CEO Justice Health

 

PUBLIC STATEMENT

The NSWCCL has written to the NSW Attorney General Mark Speakman SC to acknowledge the strong leadership shown by taking swift and decisive action to amend the Crimes (Administration of Sentences) Act 1999 to create a power for early release to conditional parole in some circumstances. If this power is exercised to substantially reduce the number of people held in detention in NSW, this will be a significant step towards slowing the spread of COVID-19 and saving lives.

We urge the Attorney General to also consider relieving the strain on prisons and consequential health risks caused by the burden of overcrowding by amending the Bail Act 2013. In 2013 the Audit Office of NSW identified that 33% of the NSW prison population were on remand. This proportion of the prison population can only be reduced through release by police or courts under the Bail Act.

The current bail framework can be applied to reduce the numbers. In particular the court can take into account the delays which will be experienced in finalising cases as a result of the impact of the pandemic and also vulnerabilities of the accused, for example their age, pre-existing conditions or if they are an Aboriginal or Torres Strait Islander person.

However, the Bail Act does not currently provide for the impact of the spread of the virus within the prison system on the community or other people detained or working or attending correctional or detention centres. An express provision in the Bail Act which provides that the court must take into account the risks posed by COVID-19 to inmates, correctional staff and other gaol workers, their families and the community more broadly, would send a clear message to police and the courts that Parliament acknowledges the serious and fatal risks posed by a spread of this virus.

 

Nicholas Cowdery AO QC

President, NSW Council for Civil Liberties

  

Rebecca McMahon & Eugene Schofield-Georgeson

Convenors, Criminal Justice Action Group

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Statement: COVID-19 and prisons

March 24, 2020

PUBLIC STATEMENT

Reducing the risk of COVID-19: reducing the number of people in custody 

The risk of transmission of COVID-19 in correctional centres and youth detention centres demands urgent action to reduce the number of people in those centres.

The NSWCCL strongly supports the ‘Open letter to Australian governments on COVID-19 and the criminal justice system’ https://www.abc.net.au/news/2020-03-20/open-letter-to-australian-governments-on-covid-19-and-the-crimi/12076342.

Overcrowding of gaols is a well-known condition which renders the prison population more vulnerable to the spread of infectious diseases. Many people in custody present with pre-existing and chronic health conditions which may increase the risk to their health if infected with COVID-19. 

We are deeply concerned that failing to significantly reduce prison numbers will lead to a rapid spread of the infection which would unacceptably compromise the health and safety of inmates, young people and the families and communities to whom they are released. This is particularly concerning for Aboriginal and Torres Strait Islander people who are overrepresented in the criminal justice system and who suffer poorer health outcomes. We are also concerned for the health and safety of corrections and justice health staff, lawyers, cleaners other gaol workers and the families and communities they go home to.

The risk of infection will inevitably be exacerbated by the significant delays in finalising cases which will result from important measures being put in place by the courts to limit face-to-face contact of court users, such as the suspension of jury trials. On 23 March 2020 a restriction was placed on new criminal cases commencing in the NSW District Court (other than sentences and appeals) and directed that trials currently listed be vacated and be re-listed after October 2020 (with the exception of Judge alone trials and current trials). The Supreme Court announced that from Tuesday, 24 March 2020 ‘there shall be no personal appearances in any matters save in exceptional circumstances’ 

Reducing prison numbers can be done by:

  • Urgently considering legislation to enable early release of prisoners who are not considered high risk or who are soon to be released as has been done in some other countries
  • Amending the Bail Act and the Crimes (Sentencing Procedure) Act to require courts (and police in relation to bail) to take into account the potential impact of COVID-19 upon the accused and the community.
  • Police and the courts taking into account the impact of COVID-19 upon the accused in the context of the current bail framework, including the accused’s potential risk of exposure, the length of time in custody (including the impact of the delays), the vulnerability of the person and the likelihood of a custodial penalty (which may more appropriately be a community based option if the person is vulnerable to infection by virtue of their incarceration or the person has a vulnerability which increases the risk to their health).

We urge that courts refrain from imposing sentences of full-time custody unless assurances are provided by corrective services that:

  • the offender will not be forced to share cells or spaces which are inconsistent with the government guidelines in relation to distancing; and
  • that offenders will not be exposed to persons who corrective services are aware may be infected or at risk of carrying the virus.

 

Transparency and Accountability 

The information currently available on NSW Corrective Services and NSW Justice Health websites is inadequate. Inmates, young people in detention, their families, the public, the legal profession and the courts are entitled to know essential information and policies including:

  • In what circumstances are inmates and young people being tested for COVID-19?
  • In what circumstances are staff being tested for COVID-19?
  • What arrangements are being made in relation to vulnerable members of the prison population: the elderly, those with pre-existing conditions, Aboriginal and Torres Strait Islander people?
  • What are the arrangements for isolating any inmates who test positive for COVID-19, including the length of time they are to be isolated and in what conditions?
  • How are accused persons who are arriving from overseas (such as those who may have been arrested for importing drugs) being isolated?
  • the impact on inmates who share a wing, pod or gaol with an inmate who tests positive for COVID-19 and what arrangements or changes will occur to the conditions of their incarceration?
  • the number of beds at Long Bay hospital that are available for treating any inmate or young person testing positive who requires hospital care;
  • what alternative arrangements would be available if Long Bay hospital reached capacity?
  • the arrangements, if any, for any inmates who are released in relation to testing and, if positive, whether inmates are provided transport and transmission to appropriate health services?
  • the availability or cancellation of rehabilitation programs as a result of the risk posed by COVID-19.

We urge NSW Corrective Services and NSW Justice Health to publish this information on their websites to ensure accuracy. 

As at 22 March 2020, NSW Corrective Services’ website indicated that “We have no confirmed cases of the virus within any of our correctional centres”. On 20 March 2020, The Sydney Morning Herald reported “two staff members at a high-security mental health facility in Sydney's south have been diagnosed with COVID-19 and dozens of staff and patients have been placed into isolation”. We urge NSW Corrective Services and NSW Justice Health to publish accurate information on their websites. It is understood that the forensic hospital is under the jurisdiction of NSW Justice Health, however, sections 55 and 56 of the Mental Health (Forensic Provisions) Act provide for transfer of persons between the hospital and correctional centres. For this reason, we urge disclosure on the NSW Corrective Services website. It should also be made clear whether there has been any potential transmission by Justice Health staff spending time in either the hospital or a correctional centre or whether any forensic patients have been transferred to correctional centres within the relevant time period. 

Unprecedented times require the courage to make decisions which are consistent with evidence and the wellbeing of the whole community. We call on the government to urgently reduce the number of people incarcerated to lessen public health risks. We call on NSW Corrective Services and NSW Justice Health to provide clear and detailed information to the public.   

 

Nicholas Cowdery AO QC

President, NSW Council for Civil Liberties

 

Rebecca McMahon & Eugene Schofield-Georgeson

Convenors, Criminal Justice Action Group

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Statement: Minister for Police and Community Services, David Elliott

11 March 2020

PUBLIC STATEMENT

NSW Council for Civil Liberties considers the Minister for Police and Community Services, David Elliott, should stand down while a NSW police investigation into whether he has committed a criminal offence is ongoing.

Ministers have a responsibility to maintain the public trust that has been placed in them by performing their duties with honesty and integrity, in compliance with the rule of law.

It is untenable for the Minister for Police, with responsibility for the conduct of the NSW Police Force, to maintain public confidence in the NSW Police Force while he himself is under investigation for a serious offence, in this case an offence which carries a maximum penalty of 14 years imprisonment.

While Mr Elliott is entitled to the presumption of innocence and says that he acted in good faith and fired a semi-automatic weapon and pistol "under the strict supervision of the range master",  that does not properly address the question of whether the public can have confidence in the integrity of the police investigation while Mr Elliott remains Minister for Police.


NSWCCL contact: Stephen Blanks, Treasurer - office@nswccl.org.au

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Strip search inquiry cut short

NSWCCL condemns the premature closure of the inquiry into potentially illegal strip searches conducted on minors by police in NSW. The Guardian has revealed that the Law Enforcement Conduct Commission (LECC) confirmed it will no longer hold further hearings as part of the inquiry, which last year uncovered evidence of the widespread misuse of strip search powers by police in NSW.  

The LECC had been due to hold more public hearings in either late January or February into the psychological impacts of strip searching on minors, but in a brief statement a spokeswoman for the LECC said it now had “no intention to call further evidence at this stage”.

The decision to cut the inquiry short comes just a month after the NSW government announced it would not renew the term of its chief commissioner, Michael Adams QC, which prompted accusations his removal was a “cynical” attempt to cut the inquiry short.

Held in October and December, the public hearings revealed a disturbing pattern of police misusing strip search powers on minors, as well as evidence that many police do not understand the laws governing strip searches. Police data referenced at the inquiry shows that routinely, strip searches are not being used only in 'serious and urgent circumstances', indicating widespread contravention of the law.

Evidence tabled shows that when 30 teenagers were strip searched at an underage Sydney music festival in February 2019, just five had an appropriate adult present. Presence of a parent/guardian is mandatory under the Law Enforcement (Powers and Responsibilities) Act for anyone aged between 10 and 18.

In one case a 16-year-old girl was fearful and in tears after she was forced to strip naked and squat in front of a police officer who then “looked underneath” her at the Splendour in the Grass festival in 2018.

NSW Council for Civil Liberties Vice-President, Dr Eugene Schofield-Georgeson states, "This inquiry was key to uncovering processes and investigating questionable practices. Reform is needed, both internal police practice, as well as legislative reform. Clarification of strip search powers in both the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), and in regulations, was recommended by UNSW law academics Dr Michael Grewcock and Dr Vicki Sentas in Rethinking Strip Searches by NSW Police. It's important people, particularly minors, are aware of their rights when asked by police to submit to a strip search." 

This issue is "about changing the conversation about policing in NSW," explains Redfern Legal Centre head of police accountability Samantha Lee. "It's a conversation that talks about minimising harms, securing dignity and still keeping the community safe."

Strip search practices raise major issues of police accountability. Strip searches are on the rise in New South Wales, with searches increasing by 46.8 percent over four years and on average, in 64 percent of cases, nothing unlawful is being found. Find out more in Rethinking Strip Searches by NSW Police, commissioned by Redfern Legal Centre and published by UNSW Law.

- NSWCCL President, Nick Cowdery AO QC

Contact: office@nswccl.org.au


NSWCCL, Redfern Legal Centre and 2SER are collaborating on Strip searches and the law: Project Podcast. The episodes will cover issues such as what to do if you, your family or friends are approached by police and or drug detection dogs, and what powers police have to search, seize, detain and arrest.

Will you help us make Project Podcast happen? We are looking for community support to produce the episodes. For an organisation like ours that relies on members and supporters to further our work, every dollar counts. 

Please support this project with a donation today.

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Correspondence with the NSW AG

In August CCL wrote to the NSW Attorney General on a number of matters relating to the administration of justice. We recently received a response from the Attorney General

We remained deeply concerned that, despite the Government Commissioning reports to address the overrepresentation of Aboriginal and Torres Strait Islander people in custody, the statistics remain shamefully high. We remain uninformed about the details of the specific additional funding/initiatives. It is important that these initiatives are detailed to the community so that the community, in particular the Aboriginal and Torres Strait Islander community, are in a position to evaluate government action in relation to this crucial issue.

We call upon the government, as a starting point to:

  • Fund the Walama Court (specific sentencing court for Aboriginal people); 
  • Fund residential drug and alcohol rehabilitation centres in a regional areas (noting many regional areas simply do not have a residential rehabilitation facility, making it difficult if not impossible for people to access the assistance they need thus leaving individuals, families and communities vulnerable to the devastating impacts of serious addiction)     
  • Establish a committee led by the advice and knowledge of Aboriginal and Torres Strait Islander justice and health professionals to implement the recommendations of the ALRC pathways report (insert link). The committee should include Federal and State representatives to ensure there is a whole of government response to addressing this important issue.

 

NSWCCL letter to Mark Speakman, Attorney General (26th August 2019)

Return correspondence from the Attorney General (Dated January 2020)

 

NSWCCL Action Group Convenors, First Nations Justice - Rebecca McMahon, and Criminal justice, police powers and mental health, Dr Eugene Schofield-Georgeson

 

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NSW mobile phone detection bill seriously flawed

A NSW Parliamentary Committee has recommended the Legislative Council should proceed to consider the Transport Amendment (Mobile Phone Detection) Bill 2019, including any amendments in relation to the reverse onus of proof, the use of artificial intelligence and privacy.

NSWCCL agrees strongly that mobile phone use whilst driving is a serious issue which needs to be addressed to protect the safety of the community.

We do not, however, support this Bill on the basis that it unjustifiably reverses the onus of proof and fails to provide adequate protections to assure the public that the information captured by the cameras is used for the sole purpose of prosecuting mobile phone offences.

NSWCCL also has concerns about the inherent risks of using AI to identify criminal behaviour given the lack of transparency as to the underpinning algorithms driving the assessment.

We welcome the Committee’s recognition of these concerns in their report and single recommendation.

The Bill should be amended significantly to address these problems before the Legislative Council approves it.                                                   

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NSW Council for Civil Liberties condemns unjust detention of innocent people, urges return to 2013 bail law reforms

17 June 2019

Statistics released by the NSW Bureau of Crime Statistics (BOCSAR) have shown a significant increase since 2014 in the number of people refused bail, and then later found innocent. There has been an increase of 30 per cent in people denied bail, held in prison, and then later being acquitted.  In 2018, this meant 204 people, including 21 children.

Since 2014, there has been a significant increase in the number of prisoners held on remand, from a quarter of prisoners in 2012, to a third in 2018. Some adults had to wait over 500 days. The children had to wait an average of 124 days last year.

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NSW Council for Civil Liberties urges reform of NSW strip search laws

5 June 2019

The NSW Council for Civil Liberties (CCL) calls for the urgent reform of strip search laws in NSW.

CCL President, Pauline Wright, said “A strip search is an incredibly distressing experience and should only be used as a last resort. Unfortunately, strip searches are increasingly being used by police in NSW as a more or less routine procedure. Many innocent people are being hauled aside and subjected to this indignity with deep and lasting feelings of shame and trauma being suffered by some individuals.”

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The High Court rejects appeal to re-try Bowraville murders case

26 March 2019

The High Court of Australia has refused to hear an appeal from the NSW Attorney-General in relation to trying the man suspected of murdering three Aboriginal children in Bowraville. The saga of the Bowraville murders has lasted for almost 30 years, beginning with the deaths of the children over a period of five months from 1990 to 1991. The disappearances were originally treated with minimal concern by the police, who suggested the children had gone “walkabout”. The police failure to gather evidence in the crucial early period doomed the attempt to gain justice for the children. In 1994, a man was tried for the murder of one of the children, Clinton Speedy-Duroux. He was acquitted.

According to Professor Larissa Behrendt, the police began to rebuild their credibility with the local Aboriginal community by appointing detective inspector Gary Jubelin to investigate the case. He gathered new evidence to try the same suspect, and presented it before a coronial inquest in 2004. It was regarded as compelling, and this led to a new trial of the suspect, this time for the murder of one of the other children, Evelyn Greenup. Once again, the man was acquitted. The prosecution argued for admitting the new evidence in relation to the deaths of the other children, but this submission was rejected.

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