To lease or not to lease? The leasing of indigenous statutory lands in Australia: lessons from Canada

In Australia, land rights legislation provides statutory schemes for the transfer of land to Indigenous peoples. The first significant land rights legislation was passed by the Australian Commonwealth government in 1976. This was the Aboriginal Land Rights (Northern Territory) Act (ALRA) 1976 (Cth). In 2006, the Australian Commonwealth government passed significant amendments to the ALRA. One of the key amendments introduced the leasing of Aboriginal ‘township lands’ held under that Act. It is these leasing amendments which are a focus of this article. A primary motivation behind the amendments was to decrease poverty in Indigenous communities and to allow for economic development on Aboriginal lands. This article critiques the township leasing scheme under the amended Act. It questions whether the new leasing arrangements are the most appropriate forms of leasing to achieve economic development on Aboriginal lands and to benefit the Aboriginal communities who hold these lands. In 2008, leasing amendments were passed to Queensland's statutory land scheme in the Aboriginal Land Act 1991 (Qld) and these amendments are subject to review in this article. Furthermore, the article examines alternative forms of leasing used for economic development on Indigenous reserve lands in Canada and whether there are lessons that Australia could learn from these tenures and their modes of leasing.     

Delivering Justice in Indigenous Sentencing Courts: What This Means for Judicial Officers,Elders, Community Representatives,and Indigenous Court Workers

Indigenous sentencing courts are now an established form of innovative justice practice in most Australian jurisdictions. Whether such processes, which involve the participation of local community elders or representatives in sentencing an offender, provide a “better” form of justice is still up for debate. Recidivism analyses have yet to find that these courts are more likely to reduce reoffending than their mainstream counterparts. Some scholars argue that this is not the sole purpose of the courts and that other measures of “success” should be utilised when evaluating their performance. This article uses interviews with judicial officers, elders, community representatives, and Indigenous and non‐Indigenous court workers to explore what the courts are seeking to achieve and how that translates into a different form of doing justice.     

The meaning of anger for Australian Indigenous offenders: the significance of context

The problem of overrepresentation of Indigenous offenders in Australian prisons highlights the need for effective tertiary intervention programs within correctional settings as a way of reducing Indigenous reincarceration. This study seeks to explore meanings of anger within an Indigenous context that might inform the development of more acceptable and potentially more effective rehabilitation programs. A methodology that acknowledges the importance of narrative, context, and culture was devised to explore how anger as an emotion is understood and experienced by a group of Indigenous men in a South Australian prison. Although some of the major themes reflected experiences of anger common to many offenders, it was evident that for these Indigenous men, anger was experienced within a broad social and political context that imbued the experience of anger with layers of culturally specific meaning. It is suggested that these layers of meaning constitute sufficient difference to warrant further exploration.     

Reactions to Mandatory Sentences in Relation to the Ethnic Identity and Criminal History of the Offender

This study investigated the responses of 181 participants (87 men, 94 women), from Adelaide, South Australia, to scenarios describing mandatory sentences for perpetrators of a property offense committed in the Northern Territory, Australia. Four scenarios that were randomly distributed varied ethnic identity (White Australian, Aboriginal Australian) and criminal history (first-time offender, third-time offender). Participants completed attitude measures for both mandatory sentencing and capital punishment, a right-wing authoritarianism scale, and a scale concerned with sentencing goals (retribution, deterrence, protection of society, and rehabilitation). Results showed strong effects of attitude toward mandatory sentencing on scenario responses for variables such as perceived responsibility, deservingness, leniency, seriousness, anger and pleasure, and weaker effects of ethnic identity and criminal history. Participants were generally more sympathetic when the offender was an Aboriginal Australian. Results of a multiple regression analysis showed that attitude toward mandatory sentence was predicted by right-wing authoritarianism and by sentencing goals relating to deterrence and the protection of society.     

Aboriginal youth with foetal alcohol spectrum disorder and enmeshment in the Australian justice system: can an intercultural form of restorative justice make a difference?

Aboriginal youth with Foetal Alcohol Spectrum Disorder (FASD) are overrepresented in the justice system. FASD results from prenatal alcohol exposure, and may lead to cognitive, social and behavioural difficulties that increase susceptibility to contact with the justice system. This paper explores the potential contribution of restorative justice in creating diversionary options for Aboriginal youth with FASD, and related cognitive impairments, to prevent enmeshment in the justice system. The lesson from work in Australia and New Zealand is that restorative justice and Indigenous justice are different, but not irreconcilable, projects. We suggest that there is the potential for creating rich intercultural engagement spaces ‘in between’ restorative practices and Indigenous processes: provided that restorative justice – as an essentially Eurocentric paradigm of the Global North – does not attempt to colonise Indigenous justice. An appropriate model would have Aboriginal people engaged in the planning and management of diversionary options, with greater focus on diversion into place-based, Aboriginal owned and managed services. Restorative justice needs to engage with the historical demands of Indigenous peoples for their land and their way of life; though constantly imperilled by forces of neo-liberalism and colonialism, Indigenous peoples remain resilient and provide a vision of an alternative to Euro-modernity.     

Does a therapeutic court context matter?: The likelihood of imprisonment for Indigenous and non-Indigenous offenders sentenced in problem-solving courts

A key aspect of the focal concerns perspective of sentencing is that time and information restrictions within the courtroom create the conditions under which perceptual shorthands may impact sentencing determinations. These shorthands are based stereotypes related to offender characteristics including minority group statuses (i.e. ethnicity, race, Indigenous status) (Steffensmeier et al., 1998). To date, sentencing scholars drawing on the focal concerns perspective have only considered the impact of minority group statuses on sentencing in the mainstream courts (Mitchell, 2005; Spohn, 2000). Utilizing multiple regression techniques the current paper explores the impact of Indigenous status on the decision to imprison in the problem solving courts of South Australia. Unlike the mainstream courts, sentencing determinations within the therapeutic problem-solving court environment involve a more extensive examination of offenders and their cases and by extension, perceptual shorthands should be less influential. Evidence supporting this argument is provided by the current research. Results show a direct relationship between Indigenous status and the likelihood of imprisonment, with leniency being extended to Indigenous offenders.     

Mapping the Racial Bias of the White Male Capital Juror: Jury Composition and the “Empathic Divide”

This article examines the nature of racial bias in the death sentencing process. After reviewing the various general explanations for the continued significance of race in capital cases, we report the results of an empirical study in which some aspects of racially biased death sentencing are examined in depth. Specifically, in a simulated capital penalty‐phase trial setting where participants were assigned to small group “juries” and given an opportunity to deliberate, white male jurors were significantly more likely to sentence black defendants to death than were women and nonwhite jurors. This racialized pattern was explained in part by the differential evaluation of the case facts and the perceptions of the defendant that were made by the white male jurors. We discuss these findings in light of social psychological theories of contemporary racism, and we conclude that the demonstrated bias in capital jury settings should be understood as an interaction of several factors, including individual juror characteristics, group‐level demographic composition, and group deliberation processes.     

Frauds and fakes in the Australian aboriginal art market

This article examines the topic of problematic art in the Australian Aboriginal art market. For Aboriginal people art plays an important social, economic and political role. It has also become a major source of income for many. Thus when the integrity of that art is challenged by allegations of fraud and deception it is imperative to explore the veracity of these claims and the responses made to them. In the article particular attention is devoted to those responses made through both the Australian criminal and civil systems of justice. This analysis shows that there are special problems associated with establishing the authenticity of Aboriginal works of art which tend to hamper the prosecution of fraud cases while a dearth of expertise and interest in art fraud at large among Australian law enforcement bodies is a further barrier to effective action. The conclusion is reached that at present the Australian legal system is poorly equipped to deal with frauds and fakes in the Indigenous art market—a situation which will take time and more imaginative solutions to remedy.     

Popping the cultural bubble of violence risk assessment tools

Violence risk instruments are administered in medico-legal contexts to estimate an individual’s likelihood of future violence. However, their ostensible limitations; in particular their mono-cultural and risk-centric composition, has drawn academic attention. These concerns may facilitate erroneous risk evaluations for certain non-white populations. Yet it remains unaddressed how cultural differences will be appraised in a risk assessment framework and which specific cultural factors should be considered. Provisions under the Canadian Criminal Code allow for Gladue Reports, to be sought by judicial officers prior to sentencing Indigenous people. Gladue Reports provide insights into an Indigenous person’s unique circumstances that may have led to their offending as well as community-based options for rehabilitation. We proffer that there may be value in augmenting the risk evaluation with culturally relevant Gladue style considerations identified by relevant Indigenous people to provide a more holistic account of an Indigenous individual’s circumstances.     

Questioning Blackmun's Thesis: Does Uniformity in Sentencing Entail Unfairness?

It is commonly believed among criminal justice scholars that sentencing guidelines increase uniformity in sentencing at the cost of fairness. They reason that guideline systems rarely take all relevant case characteristics into consideration, and as a result, impose sentences in particular cases that are biased relative to the ideal or best sentence. This bias effect is one of the primary theoretical and practical challenges faced by courts and sentencing commissions in the last 30 years, and provides one of the strongest arguments against mandatory sentencing guidelines. This article identifies a second effect of guidelines on fairness, which has not been sufficiently acknowledged by the scholarly literature: the variance effect increases the fairness of sentences directly by increasing uniformity. This article uses statistical simulation to examine the relationship between the variance effect and the bias effect. The results provide substantial evidence that the variance effect is comparatively large, and that it may often outweigh the negative effects of bias. Under these conditions, sentencing guidelines will both increase uniformity and increase fairness.     

Rhythms of Law: Aboriginal Jurisprudence and the Anthropocene

On 1 December 2019, over one hundred Aboriginal nations performed ancestral and creation dances in synchrony across the Australian continent. One of the communities that danced was the Anaiwan nation from the north-eastern region of New South Wales, Australia. Since 2014 I have been working with Anaiwan people in a collaborative activist research project, creating and maintaining an Aboriginal community garden on the fringes of my hometown of Armidale as a site for land reclamation and decolonising, multispecies research. The community garden is adjacent to the site of the old East Armidale Aboriginal Reserve, where over one hundred dispossessed Aboriginal people were forced to live on the municipal town garbage depot in the mid-twentieth century. This paper positions both the Nation Dance 2019 movement, and the Armidale Aboriginal Community Garden, as rhythmic events that activate Aboriginal Law and sovereignty that is held enduring in the land but that has been buried alive by the settler-colonial state. Focusing on the tensions between deep Indigenous ancestral temporality and colonial territoriality, I argue that the emergence of the Anthropocene reveals a dangerous dissonance between the rhythms of Aboriginal Law patterned through present-day Australian environments and the grid-based structures of colonial governance imposed upon them.

     

RACE,RACIAL THREAT,AND SENTENCING OF HABITUAL OFFENDERS*

As legislatures proliferate novel “enhancements” to criminal sentencing, such as “three-strikes” and related provisions, and as criminologists debate their effects, the role of existing enhancements, such as habitual offender statutes, has received little empirical attention. This article explores the effect of race in the decision to prosecute and sentence eligible defendants as “habitual” offenders. During FY 1992–93, 9,690 males admitted to prison in Florida were statutorily eligible (two prior felony convictions or one prior violent felony conviction) for sentencing as “habitual” offenders. Approximately 20% received that disposition. They will serve at least 75% of their enhanced sentence as compared with the state average of about 40%. Logistic regression, controlling for prior record, crime seriousness, and other relevant factors, shows a significant and substantial race effect. The disadvantage of black defendants is particularly strong for drug offenses and for property crimes that have relatively high victimization rates for whites (larceny, burglary). Race is less consequential for violent and weapons-related crimes. Race effects are more often significant in sentencing contexts that are low in terms of percent black, racial income inequality, drug arrest rates, and violent crime rates. The relevance of these findings for a “racial threat” interpretation of sentencing outcomes is discussed.     

Kumarangk (Hindmarsh Island) and the Politics of Natural Justice under Settler‐Colonialism

This article examines the impact of the application of apparently impartial principles of procedural fairness and natural justice on the construction of “authentic” and “inauthentic” knowledge of Aboriginal culture. It discusses the progression of the Kumarangk (Hindmarsh Island) court cases and the legal construction of public participation in the making of political decisions affecting Aboriginal interests in land. In examining the politics of competing interests in land, this article reflects on the tension between Indigenous interests in land and settler developmentalism in relation to the Australian jurisprudence of procedural fairness and natural justice. The arguments running through the article concern the questions of the ways in which the liberal restraint on power is embodied in the impartial principles of administrative law, where that power creates rather than infringes upon rights, why it generates a particular legal construction of Aboriginal interests in land and cultural heritage, and the extent to which this plays a role in the maintenance of relations of settler‐colonial dispossession.     

The Deep Colonizing Practices of the Australian Royal Commission into Aboriginal Deaths in Custody

This paper demonstrates how legal processes utilized by institutions established to reverse the effects of colonization, can continue the colonizing agenda. The processes reflect 'deep' rather than 'de-'colonizing practices. The Australian Royal Commission into Aboriginal Deaths in Custody (RCIADIC), which tabled its National Report over a decade ago and which was heralded as the inquiry which would transform race politics for Indigenous Australians, is used as an example of a 'decolonizing' institution that inadvertently adopted deep colonizing practices. Using data from interviews with 48 Indigenous and non-Indigenous people who were associated with the RCIADIC, this paper expands Deborah Bird Rose's theoretical construct of 'deep colonizing practices' and illustrates how difficult it is to shift hegemonic legal processes and beliefs, despite intentions to empower and embrace Indigenous views.     

Too Many Black Men: The Sentencing Judge's Dilemma

Legal reform sometimes has unanticipated, even ironic, results. A good example is federal legislation adopted in the 1980s that was supposed to enhance equity in sentencing. Congress, like many state legislatures in this period, reduced judicial control over sentencing by adopting presumptive sentencing guidelines for all serious criminal offenses and mandatory sentences for some specific crimes. Reformers did succeed in reducing judicial discretion in the sentencing process, but racial disparities have gotten much worse. Unprecedented numbers of minorities, particularly black men, are going to jail for long terms. The situation leaves trial judges in a difficult position. They are legally bound to implement a sentencing regime that many of them believe is racially discriminatory. Herbert Jacob's work on criminal trial courts provides a framework for investigating this problem. As Jacob's organizational approach predicts, judges were initially more troubled by the diminution of their powers than by the emerging pattern of increased minority incarceration. Nevertheless, some judges have criticized the racial implications of the sentencing law, protesting in various, resourceful ways. Judicial resistance to a law on moral grounds, though rare, is significant because it represents a break in the ranks of officialdom that enhances the moral credibility of critics of the current law.     

Public Attitudes and Sentencing Policies Across the World

Many Western countries have experienced a boom in prisoners rates, characterised as “carceral hyperinflation” or “new punitiveness”. Politicians and opinion makers assume that this reflects the demand of the public for more severe sentencing. This article analyses data on the attitudes of the population towards punishment from over thirty different countries taken from the International Crime Victim Surveys of 2004/2005. First, some key findings on punitivity are presented showing that in many countries the public prefers non-custodial sentences for recidivist buglars. Next, results are presented from a multi-level analysis of the correlates of punitiveness at both the individual and country level. This multi level analysis shows that individual characteristics explain very little variance in country differences in punitiveness. On country level, the level of common crime and the Gini coefficient, a measure for income differences in the country, have significant explanatory power. The often mentioned tougher attitude towards sentencing in the English speaking/common law countries is fully explained by this. Finally, the relation between the publics attitude towards sentencing and a measure of actual sentencing severity showed a weak and inverse relationship at country level.     

Rational-choice gun use in armed robbery: The likely deterrent effect on gun use of mandatory additional imprisonment

Conclusion The Western Australian findings suggest that a sentencing policy targeted specifically at the use of guns in committing robbery could be effective in discouraging the choice of this weapon. The proposed sentence is a mandatory minimum period of twelve months for the first offense. Sentencing for the principal, or focal, offense of robbery would be governed by existing law. A second, or even later, gun-using offense should carry a greater mandatory additional sentence. At the same time, given the social and experiential factors that have brought offenders to the point of choosing a weapon and a modus operandi, any such policy must be applied humanely. Rational-choice theory does not deny that there may be unequal opportunities to exercise choice; it does, however, assert that decision making can be influenced by an appropriate sentencing strategy.The implementation of any such policy should be carefully evaluated both in aggregate studies, as has been done in Canada, and in individualized, rational-choice research. The evaluation should address not only the efficacy of the broad strategy but also the narrower question of whether the suggested mandatory sentences are optimal.Although this article has offered theoretical and statistical support that the proposed sentencing strategy is likely to reduce the incidence of gun use in robbery, some offenders may be discouraged from committing further robberies altogether, inasmuch as victim management in certain kinds of robbery may be sensibly attempted only through the use of a gun. Deterred from using guns, some offenders may look for a different career altogether, whether criminal or not.This article is based on a report entitledWeapon Choice by Violent Offenders in Western Australia: A Pilot Study, co-authored with Ann Blake. Copies are available free of charge from the Administrative Secretary, Crime Research Centre, University of Western Australia, Nedlands, W.A. 6009, Australia.The original research for the report was funded by Grant No. 5 of 1988 by the Australian Criminology Research Council. These funds were supplemented by the Crime Research Centre of the University of Western Australia. This article was written while the author was on sabbatical leave at the Centre for Criminological Research, University of Oxford.L.L.B., University of London 1960; L.L.M., Columbia University 1962. I would like to express my thanks to Dr. Roger Hood, Director of the Center for Criminological Research, University of Oxford.     

Minnesota Sentencing Guidelines: A Structure for Change

Minnesota's sentencing reform took place many years ago but its evolution continues. It is not possible for any sentencing system to remain static in the highly political and emotionally charged arena of crime. Goals and principles that were considered firmly established when the Sentencing Guidelines first went into effect have been reordered and expanded, practitioners have cut through the hard edges of the policies and softened their impact, and specific sentencing policies have moved in the direction of harsher penalties for violent and career criminals and drug dealers. While political and practical forces continue to evolve the sentencing guidelines policy, it is the structure itself that provides the essential rational framework for decision making. This article examines some of the forces of change in Minnesota and illustrates how the structure of sentencing guidelines, nevertheless, has managed to retain a rational sentencing policy.     

Liberal Forms of Governing Australian Indigenous Peoples

This article considers three different historical events from the point of view of their connections to aspects of the history of liberal political reason: the actions of the British in New South Wales in the early nineteenth century in their claim to sovereignty over Indigenous lands; the establishment of Aboriginal missions and subsequent removal of Aboriginal children in the early twentieth century; and the Northern Territory Emergency Response and suspension of the Australian Commonwealth Racial Discrimination Act (1975) early in the twenty‐first century. The aim is to point to gaps between present claims about liberalism and ‘actual existing liberalism’, review the basis for examining accounts of governance deploying ‘authoritarian liberalism’ and ‘race war’ as central concepts, and call into question the Northern Territory campaign as an ‘exceptional’ event.     

被害人参与量刑程序：现状、困境与展望

被害人参与量刑程序是量刑程序改革的重要组成部分,对于化解社会矛盾、促进社会和谐具有重要意义。从当前试行效果看,这一制度设计在实践中遇到一些困境。2012年修改后的刑事诉讼法为被害人参与量刑程序、发表量刑意见预留了足够空间。未来应区分＂被害人影响陈述＂与被害人的量刑意见,处理好被害人的量刑意见与检察机关的量刑建议的关系,进一步完善具体的制度设计。