tag:theconversation.com,2011:/global/topics/courts-5462/articlesCourts – The Conversation2024-02-28T00:00:10Ztag:theconversation.com,2011:article/2245062024-02-28T00:00:10Z2024-02-28T00:00:10ZDoug Ford’s political judicial appointments: Good or bad for justice and democracy?<p>Ontario Premier Doug Ford <a href="https://www.cbc.ca/news/canada/toronto/ford-appointing-former-staffers-judge-selection-committee-1.7127050">has defended appointing two former senior political staffers to a committee that helps select provincial judges</a>, saying he would not appoint a Liberal or New Democrat.</p>
<p><a href="https://www.thestar.com/politics/provincial/doug-ford-defends-patronage-appointments-of-ex-staffers-says-he-wants-like-minded-people-selecting/article_85bcd434-d25b-11ee-b59c-bb5445f38856.html">The controversy</a> surrounds Ford’s intention to appoint “like-minded people” to <a href="https://www.ontariocourts.ca/ocj/jaac/">Ontario’s Judicial Appointments Advisory Committee (JAAC)</a>, which submits a shortlist of candidates to the Attorney General of Ontario for appointment as judges.</p>
<p>It is composed of seven lay members from the public (appointed by the government), three provincial court judges (appointed by the judiciary) and three lawyers from legal organizations (selected from lists submitted to the Attorney General).</p>
<p>Commentators expressed concern that patronage appointments to the JAAC could politicize the appointment system. Ford says he would seek to appoint “tough judges, tough JPs [Justices of the Peace] to keep guys in jail,” adding, “that’s part of democracy. You voted a party in.” </p>
<p>The Federation of Ontario Law Associations said Ford’s comments “<a href="https://www.theglobeandmail.com/canada/article-doug-ford-says-its-his-right-to-appoint-like-minded-judges/">reflect a juvenile understanding of the role of an independent judiciary</a>.” Liberal Leader Bonnie Crombie warned of a “<a href="https://twitter.com/BonnieCrombie/status/1761056753767063774">U.S.-style politicization of our courts</a>” and NDP Leader Marit Stiles also warned of <a href="https://www.thestar.com/politics/provincial/i-am-going-to-make-sure-we-have-like-minded-judges-doug-ford-doubles-down/article_11957aa8-d4b7-11ee-a4e5-03b6529e6fd5.html">“politicization of the judiciary.”</a></p>
<p>Do these kinds of appointments add a welcome dose of democratic input into the judicial process (by the appointment of judges who reflect the elected government’s worldview)? Or do they signify unhealthy politicization of the judiciary? Both perspectives have some merit. </p>
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<h2>Judicial legitimacy</h2>
<p>The judiciary relies on public legitimacy to undergird its decisions. A number of those decisions involve a degree of discretion and are not simply mechanical applications of the law, particularly in criminal law.</p>
<p>If the judiciary strays too far from the general currents of public opinion when making such decisions, confidence in the judiciary could be eroded. Therefore, appointing individuals to the JAAC who may have links to the party in power and are sympathetic to their politics isn’t necessarily troublesome.</p>
<p>If a new government appoints judges with a somewhat different worldview than the previous government, that is acceptable and even healthy — so long as the process emphasizes legal knowledge and fairness, and not partisan considerations.</p>
<p>Part of my concern, though, is that Ford’s comments about having high-profile Conservatives on the JAAC and appointing <a href="https://globalnews.ca/news/10318686/doug-ford-like-minded-judges/">“like-minded judges”</a> gives the impression that candidates affiliated with the provincial Progressive Conservatives may be favoured in the appointments process.</p>
<p>Injecting partisan considerations into the appointment process has a number of negative consequences. The appointment system can be viewed as unfair and high-quality candidates may be overlooked or even discouraged from applying. </p>
<p>While appointees linked to the party of appointment can be excellent judges, <a href="https://doi.org/10.1017/S0008423910000648">research suggests</a> that partisans tend to make up a higher portion of appointees perceived to be of lower quality. Making partisanship a priority <a href="https://doi.org/10.1017/S0008423917000014">may reduce the potential to diversify the bench</a>. This, in turn, could reduce how representative of broader society the bench is, and limit the range of experiences that breathe life into the law. </p>
<p>These problems have been pointed out in regard to patronage in judicial appointments by the <a href="https://nationalpost.com/feature/exclusive-data-analysis-reveals-liberals-appoint-judges-who-are-party-donors">federal Liberals</a> and <a href="https://www.theglobeandmail.com/news/politics/stephen-harpers-courts-how-the-judiciary-has-been-remade/article25661306/">Conservatives</a>, along with the fact that they rarely appoint individuals linked to opposition parties.</p>
<p>Even if the Ford government’s goal is not to appoint party affiliates, but simply individuals perceived to be “tough on crime,” his failure to emphasize that those judges would still be required to apply the law fairly and impartially can undermine faith in the judicial process.</p>
<h2>Assessing the impact</h2>
<p>Despite the serious reservations identified above, I remain less concerned than some others about how this will play out. Judges and lawyers compose nearly half of the JAAC, making it unlikely that unworthy candidates will be shortlisted for appointment. </p>
<p>Moreover, judicial independence does not require that the selection process be independent from government. Having a selection committee composed of members of the legal community and lay people is a positive development, as they can help emphasize quality and provide some buffer against a politicized appointment process. </p>
<p>However, the core of judicial independence requires governments not being able to punish or reward judges for their decisions once on the bench — something that is robustly protected in Ontario. Trial court decisions can also be appealed to a higher court and judges themselves are subject to an <a href="https://www.ontariocourts.ca/ocj/conduct/do-you-have-a-complaint/">independent complaints system</a>.</p>
<p>Finally, the Ford government will likely find that choosing judges who decide cases consistently in a certain direction is a difficult task. Not only do judges have guarantees of independence, but once appointed, professional norms tend to lead judges to impartially apply the law (as best they understand it) to the facts. </p>
<p>Often, the requirements of legislation or precedents will require a decision that governments (or even the judges) do not like. In cases where judges have some latitude (excluding evidence, bail, sentencing, etc.), <a href="https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=3711&context=ohlj">research on judicial behaviour below the Supreme Court-level</a> suggests that one cannot assume former prosecutors or Conservative appointees are going to be “tough on crime” as envisioned by Premier Ford. </p>
<p>Overall, if there is some incremental change in outcomes from newly-appointed judges in line with shifts in the electorate, that is a healthy feature of our liberal democratic system of government. This holds true provided the judges were recommended by a selection committee; there is a strong system of judicial independence and judicial decisions are constrained by fair and impartial application of the law. My guess is that progressives and conservatives would both agree with that, depending on who is in power at the time.</p><img src="https://counter.theconversation.com/content/224506/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Troy Riddell does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Appointing individuals who may have links to the party in power is not necessarily troublesome, as long as the process emphasizes legal knowledge and fairness, and not partisan considerations.Troy Riddell, Associate Professor and Chair, Department of Political Science, University of GuelphLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2205982024-02-22T22:32:57Z2024-02-22T22:32:57ZDo pre-sentencing reports really help Black offenders in Canada’s justice system?<figure><img src="https://images.theconversation.com/files/577425/original/file-20240222-28-fnla2o.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C4898%2C3255&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Impact of race and culture assessment reports (IRCAs) are meant to give judges context with the aim of ultimately creating a more equitable and fair criminal justice system.</span> <span class="attribution"><span class="source">(Shutterstock)</span></span></figcaption></figure><p>Canadian courts are increasingly applying <a href="https://www.legalaid.on.ca/irca/">Impact of Race and Culture Assessment reports (IRCAs)</a>, otherwise known as Enhanced Pre-Sentence Reports, when sentencing offenders. IRCA reports help sentencing judges better understand how systemic racism has influenced and even limited the offender’s life choices and trajectory. </p>
<p>Their use has been much debated among academics, lawyers, parole and probation officers, community workers, social workers, other clinicians and offenders. These reports are said to <a href="https://theconversation.com/equitable-sentencing-can-mitigate-anti-black-racism-in-canadas-justice-system-217515">address anti-Black racism in the justice system</a> by outlining for the courts <a href="https://ccla.org/wp-content/uploads/2021/12/Anti-Black-Racism-Fact-Sheet-2021.pdf">the myriad ways in which systemic anti-Black racism</a> has influenced the life of the offender. </p>
<p>They are meant to provide judges with context and insights with the aim of mitigating sentences and ultimately creating a more equitable and fair criminal justice system.</p>
<p>As an author of the <a href="https://www.canlii.org/en/on/onsc/doc/2018/2018onsc5186/2018onsc5186.html">IRCA report</a> that helped set a precedent in Ontario for their use, I present a critical perspective on the issue with IRCAs, their potency and their potential. </p>
<p><a href="https://www.justice.gc.ca/eng/fund-fina/gov-gouv/supporting-soutien.html">Given the relative novelty of IRCAs in Ontario and the investments made in them</a>, we need to ask whether they are in fact doing, systemically, what they were developed to do. Moreover, we should also question whether it is even possible for IRCAs to function in the transformative manner advocates have envisioned.</p>
<h2><em>R. v. Morris</em></h2>
<p>In 2017, through a series of interviews, document reviews and research, I conducted an assessment on Kevin Morris, then an inmate at Maplehurst Correctional Complex in Milton, Ont. awaiting his sentencing hearing. <a href="https://www.cbc.ca/news/canada/toronto/r-v-morris-anti-black-racism-ontario-court-1.6205252">He was convicted</a> for possession of a restricted handgun and carrying a concealed weapon.</p>
<p>At the prison, I sat with Morris as he explained his family history, upbringing, traumas and values. Among other things, he described his experiences as a young boy in school, in his neighbourhood, with the Children’s Aid Society and his identity-shaping interactions with teachers and the police. </p>
<p>This guided tour through his life revealed how anti-Black racism shaped his life, his outlook and his self-concept. Systemic and economic inequities characterized the poverty his parents faced. In addition, his father’s death left him fatherless at a very young age. As a single parent and sole provider, his mother was also often absent from the home, working long hours for minimum wages, which in turn impacted how Morris was parented. </p>
<p><a href="https://www.ohrc.on.ca/en/interrupted-childhoods#4.2.Black%20children">Black families are more likely to be reported to and investigated</a> by the Children’s Aid Society, and so it was no surprise that Morris experienced several child welfare interruptions throughout his childhood.</p>
<p>These were initiated by the school he attended where, Morris shared, he came to see himself as not smart, not worthy, not civilized, not wanted and not destined for success by any measure.</p>
<p>Morris’s social history was consistent with the experiences of many Black Canadians in the following ways:</p>
<p>▪ <a href="https://www.povertyinstitute.ca/bhm2023">According to the 2021 Census</a>, 12.4 per cent of Black Canadians were living in poor households, compared to just 8.1 per cent of the total population. In Toronto, Black people have long been over-represented in neighbourhoods <a href="http://3cities.neighbourhoodchange.ca/wp-content/themes/3-Cities/pdfs/three-cities-in-toronto.pdf">most plagued by poverty</a> and the associated violence, heightened surveillance and other forms of disadvantage.</p>
<p>▪ Black students are <a href="https://theconversation.com/the-crisis-of-anti-black-racism-in-schools-persists-across-generations-120856">largely disengaged by the Canadian curriculum</a> which does not reflect their identities or affirm their presence in an integrated, positive or substantial manner.</p>
<p>▪ Black students are <a href="https://theconversation.com/to-resolve-youth-violence-canada-must-move-beyond-policing-and-prison-190825">significantly more likely to be expelled</a> than their white counterparts or other racialized students. </p>
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Read more:
<a href="https://theconversation.com/the-crisis-of-anti-black-racism-in-schools-persists-across-generations-120856">The crisis of anti-Black racism in schools persists across generations</a>
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<h2>Response to the decision</h2>
<p>The case set a legal precedent when Superior Court Justice Shaun Nakatsuru made the groundbreaking decision to use the IRCA to significantly reduce Morris’s sentence. The Crown had sought a prison sentence of four years. However, after considering the IRCA, Justice Nakatsuru sentenced Morris to 15 months. This was then reduced to 12 months because the police breached his Charter rights. At the time of his sentencing, Morris had already served all but one day in pretrial detention and was released the next day. </p>
<p>The Crown <a href="https://www.cbc.ca/news/canada/edmonton/black-indigenous-offenders-gladue-enhanced-pre-sentence-reports-1.5951638">appealed the decision</a>, and in 2021, the Ontario Court of Appeal <a href="https://www.canlii.org/en/on/onca/doc/2021/2021onca680/2021onca680.html?resultIndex=1">doubled Morris’ sentence</a>. Although the sentence was eventually stayed, it sent a clear message: decisions like Justice Nakatsuru’s, that actually attempt to factor in the consequences of anti-Black racism, would not be tolerated. </p>
<p>As part of its decision, <a href="https://www.theglobeandmail.com/opinion/article-ontarios-top-court-says-anti-black-racism-should-be-considered-in-the/">the Court of Appeal declared</a>: </p>
<blockquote>
<p>“Frank acknowledgement of the existence of, and harm caused by, systemic anti-Black racism, combined with a careful consideration of the kind of evidence adduced in this case, will go some distance toward disassociating the sentencing process from society’s complicity in anti-Black racism.” </p>
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<p>But how does mere acknowledgement without corresponding action bring about change?</p>
<h2>Systemic anti-Blackness</h2>
<p>In the words of anti-Black racism scholar, Michael J. Dumas, “<a href="http://dx.doi.org/10.1080/00405841.2016.1116852">in all the theorizing on anti-Blackness, there is a concern with what it means to have one’s very existence as Black constructed as problem — for white people, for the public (good), for the nation-state</a>.”</p>
<p>In the public imaginary, Blackness is synonymous with public threat, deviance and moral deficiency. Unfortunately, <a href="https://www.thecourt.ca/r-v-morris-systemic-racism-and-the-sentencing-of-black-offenders/">the courts are not yet at a place where they can conceive of a version of justice</a> that <a href="https://www.uwindsor.ca/law/2909/morris-modest-step-forward-and-call-action">abandons its focus on Black offender’s moral blameworthiness and the administration of punishment</a>, and instead, centres restoration and the elimination of systemic factors that create criminality. </p>
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Read more:
<a href="https://theconversation.com/young-black-men-in-canada-face-racism-ageism-and-classism-when-looking-for-work-220537">Young Black men in Canada face racism, ageism and classism when looking for work</a>
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<p>Morris’s case illustrates <a href="https://www.blacklegalactioncentre.ca/r-v-morris/">IRCAs are not the liberatory device they were intended to be</a> because there is no institutional buy-in. The courts are happy to listen to Black offenders’ stories of hardship and appear benevolent, but far less eager to institute system-wide change or reframe practices to account for the state’s role in contributing to criminality.</p>
<p>Until the justice system reckons with its systemic racism, IRCAs will fail to shift the way the courts see Black offenders. Indeed, IRCAs will continue to be a voyeuristic exercise that reinforces popular deficit narratives about Black people and obscures the system’s failures.</p>
<p>Achieving racial equity in criminal justice requires the mitigation of sentencing as a reflective, conscientious undertaking rather than an act of pity or benevolence that wilfully disregards the culpability of the system itself. In fact, a true reckoning for the impact of Canada’s racism would make IRCA’s obsolete.</p><img src="https://counter.theconversation.com/content/220598/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Camisha Sibblis does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Until the justice system reckons with its systemic racism, pre-sentencing reports will fail to shift the way the courts see Black offenders.Camisha Sibblis, Assistant Professor of Sociology and Criminology/Director of the Black Studies Institute, University of WindsorLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2200902024-01-04T21:26:13Z2024-01-04T21:26:13ZHow Canadian courts are taking on climate change<iframe style="width: 100%; height: 100px; border: none; position: relative; z-index: 1;" allowtransparency="" allow="clipboard-read; clipboard-write" src="https://narrations.ad-auris.com/widget/the-conversation-canada/how-canadian-courts-are-taking-on-climate-change" width="100%" height="400"></iframe>
<p>Courts around the world are increasingly being asked to determine <a href="https://theconversation.com/montana-youth-win-unprecedented-climate-case-what-does-this-ruling-mean-for-canada-211647">whether governments</a> and <a href="https://theconversation.com/for-fossil-fuel-reliant-governments-climate-action-should-start-at-home-200621">Crown corporations</a> <a href="https://www.theglobeandmail.com/business/article-from-montana-to-ontario-youth-take-to-the-courts-as-a-last-resort-to/">are doing enough to address climate change.</a></p>
<p>In the famous <em>Urgenda</em> case, the Dutch Supreme Court <a href="https://theconversation.com/what-a-dutch-supreme-court-decision-on-climate-change-and-human-rights-means-for-canada-146383">ordered a binding emissions reduction target on the national government.</a> In the past few weeks, courts <a href="https://www.theguardian.com/world/2023/dec/01/belgian-court-orders-faster-emissions-cuts-as-countrys-climate-targets-insufficient">in Belgium</a> <a href="https://www.reuters.com/world/europe/german-court-finds-govt-climate-policy-unlawful-orders-emergency-action-2023-11-30/">and Germany</a> have ordered greater emissions reductions from national governments.</p>
<p>Closer to home, Canada’s Federal Court of Appeal recently <a href="https://canlii.ca/t/k1qs8">decided that two constitutional challenges against the government’s inadequate climate policies can go to trial</a>. In essence, the court found the claims <a href="https://digitalcommons.osgoode.yorku.ca/scholarly_works/1126/">were “justiciable</a>” — that is, they can be decided by the courts. This decision sets an important precedent that will likely increase the courts’ influence on climate policy.</p>
<p>The growing influence of courts is itself a contentious institutional phenomenon. It accepts that courts are an appropriate way to resolve the hotly contested issues at the centre of climate policy. This means that unelected judges have the power to <a href="https://doi.org/10.1093/jel/eqab026">scrutinize decisions made by elected officials and expert regulators.</a></p>
<h2>‘Justiciability 101’</h2>
<p>The debate surrounding the courts’ role in climate policy partly plays out through the <a href="https://jps.library.utoronto.ca/index.php/utjle/article/view/33797">doctrine of justiciability</a>, which allows judges to strike claims that aren’t well-suited to be resolved by the courts.</p>
<p>Justiciability marks the <a href="https://canlii.ca/t/1ft4w">line between what should be decided by courts versus other government branches</a>. In the past, <a href="https://theconversation.com/why-the-youth-climate-court-case-failed-and-whats-next-for-canadian-climate-policy-149064">Canadian courts indicated climate change fell on the other side of that line</a>.</p>
<p>In 2008, <a href="https://canlii.ca/t/2199k">the Federal Court found that a claim seeking to enforce Canada’s obligations under the Kyoto Protocol was non-justiciable</a> because the applicable law did not allow for court enforcement.</p>
<p>In 2012, <a href="https://canlii.ca/t/fs9wr">the same court decided that the federal government’s decision to leave the Kyoto Protocol was also not a matter for the courts</a>.</p>
<h2>A turning tide?</h2>
<p>In December 2023, the Federal Court of Appeal <a href="https://canlii.ca/t/k1qs8">examined two constitutional challenges to federal climate policy</a>. </p>
<p>The first was a <a href="https://davidsuzuki.org/project/youth-climate-lawsuit/">youth-led challenge</a> to current federal climate policy based on its disproportionate harms to young people. The second one involved two <a href="http://www.wetsuweten.com/culture/house-groups/">Wet’suwet’en House</a> groups claiming that federal climate policy violated their rights under the Canadian Charter of Rights and Freedoms.</p>
<p>According to the lower court, these challenges were <a href="https://canlii.ca/t/jb8f7">“too political” for courts to resolve</a> and <a href="https://canlii.ca/t/jbn58">better left to legislators and government officials.</a></p>
<p>The lower court rulings put an early end to both challenges, <a href="https://jps.library.utoronto.ca/index.php/utjle/article/view/38225/29149">preventing judicial scrutiny of claims of rights violations.</a> They also cut off an opportunity to establish <a href="https://www.cba.org/Sections/Public-Sector-Lawyers/Resources/Resources/2021/PSLEssayWinner2021">a pro-climate precedent for future cases.</a></p>
<p>In an important shift, the Federal Court of Appeal <a href="https://canlii.ca/t/k1qs8">reversed the lower court’s decisions</a>. In a direct rebuke, the appeal court ruled that climate change may be justiciable even if it raises complex or controversial issues.</p>
<p>According to the court, claims are justiciable so long as they have a “<a href="https://canlii.ca/t/k1qs8">legal anchor</a>” — some legal or regulatory link to the claim. In the challenges at issue, the court found that the federal government’s commitments under the Paris Agreement provided a sufficient legal anchor. It viewed these commitments as serving as an objective basis to consider the claims.</p>
<p>This broader approach to justiciability will likely open the door to more climate claims. It builds on recent judicial decisions that have held legislated rules like <a href="https://canlii.ca/t/jwq17">emissions reduction targets</a> and <a href="https://canlii.ca/t/jtzsj">climate reporting requirements</a> can be challenged before the courts.</p>
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Read more:
<a href="https://theconversation.com/court-decision-in-youth-climate-lawsuit-against-ontario-government-ignites-hope-206275">Court decision in youth climate lawsuit against Ontario government ignites hope</a>
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<h2>Perverse incentives?</h2>
<p>Perhaps inadvertently, a “legal anchor” approach to justiciability creates an anti-regulatory bias. Governments expose themselves to court challenges when they enact laws and regulations, but not when they merely make policy statements.</p>
<p>As a result, climate action receives greater judicial scrutiny than climate inaction. This approach fails to capture how government inaction can itself be a political decision affecting constitutional and other rights. For this reason, <a href="https://canlii.ca/t/j1ghh">some courts</a> have maintained that challenges to government inaction are legitimate. The Federal Court of Appeal’s broader understanding of what constitutes a legal anchor may also alleviate this issue.</p>
<p>But a legal anchor approach raises other concerns. The rejection of non-justiciable claims based on the absence of laws and regulations — legal anchors — shows a deference to <a href="https://lpeproject.org/blog/no-law-without-politics-no-politics-without-law/">existing political processes</a> that can disadvantage youth, <a href="https://www.elections.ca/res/rec/part/abel/AEP_en.pdf">Indigenous Peoples</a> <a href="https://canlii.ca/t/gffz5">and others</a> who lack political clout.</p>
<p>If these groups are unable to achieve results through political means, a narrow approach to what constitutes a legal anchor also limits their access to legal change.</p>
<h2>The future role of courts</h2>
<p>Going forward, <a href="https://www.unep.org/resources/report/global-climate-litigation-report-2023-status-review">the increase in cases related to climate change and climate policy</a> will test the balance between courts and other government branches.</p>
<p>In the past, Canadian courts have generally not shied away from other complex and controversial issues, including <a href="https://canlii.ca/t/g2f56">prostitution</a>, <a href="https://canlii.ca/t/jv4mz">mandatory minimum sentences</a> and even <a href="https://canlii.ca/t/1fqr3">Québec independence</a>.</p>
<p>Now those most suffering the effects of climate change want and need courts to act on climate <a href="https://theconversation.com/climate-litigation-is-on-the-rise-around-the-world-and-australia-is-at-the-head-of-the-pack-210375">when governments fail to do so</a>.</p><img src="https://counter.theconversation.com/content/220090/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Steve Lorteau receives funding from the Social Sciences and Humanities Research Council (SSHRC).</span></em></p><p class="fine-print"><em><span>Andrew Green receives funding from the Social Sciences and Humanities Research Council (SSHRC).</span></em></p>A recent Federal Court of Appeal decision opens the door for more climate cases to be brought before the courts. Will they answer the call?Steve Lorteau, SJD Candidate, Faculty of Law, University of TorontoAndrew Green, Professor and Metcalf Chair in Environmental Law, University of TorontoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2196612023-12-20T16:05:46Z2023-12-20T16:05:46ZUK government facing legal action for failing to tackle climate change – but it could backfire<p>The parish of Whimpell once stood on the Norfolk coast between the village of Happisburgh and the sea. Whimpell <a href="https://www.bgs.ac.uk/case-studies/coastal-erosion-at-happisburgh-norfolk-landslide-case-study/">disappeared into the sea</a> centuries ago thanks to coastal erosion. And now Happisburgh is facing a <a href="https://www.bbc.co.uk/news/uk-england-norfolk-63822899">similar threat</a>.</p>
<p>Some, however, do not intend to give up without a fight. On October 17 2023, <a href="https://climatecasechart.com/wp-content/uploads/non-us-case-documents/2023/20231101_21608_complaint.pdf">a case was brought</a> against the UK government by <a href="https://www.theguardian.com/environment/2023/nov/01/claimants-take-uk-government-to-court-over-inadequate-climate-adaptation">two people</a> supported by Friends of the Earth, an environmental charity. </p>
<p>The first is Kevin Jordan, whose home is at risk due to coastal erosion in Hemsby, Norfolk. The second is Doug Paulley of Wetherby in west Yorkshire, who suffers from a number of medical issues that make him particularly vulnerable to the increased frequency and intensity of extreme heat.</p>
<p>Only a <a href="https://climatecasechart.com/non-us-case/rfriends-of-the-earth-ltd-mr-kevin-jordan-and-mr-doug-paulley-v-secretary-of-state-for-environment-rood-rural-affairs-challenge-to-the-third-national-adaptation-programme/">summary</a> of the claims has been made available publicly. But it is clear that the claimants are focusing on the UK’s most recent <a href="https://www.gov.uk/government/publications/third-national-adaptation-programme-nap3">national adaptation programme</a> (NAP3). The NAP3 outlines the actions the government and others will take to adapt to the effects of climate change from 2023 to 2028. </p>
<p>The claimants argue that the NAP3 is not sufficiently ambitious and specific. It is also argued that there is no evidence that an appropriate assessment of the risks posed by climate change has been conducted, and that the unequal impact on protected groups has not been considered. </p>
<p>The claimants add that the government has failed to protect a number of <a href="https://www.legislation.gov.uk/ukpga/1998/42/contents">human rights</a>, including the rights to property, life, respect to private and family life, and the prohibition of discrimination.</p>
<figure class="align-center ">
<img alt="Crumbling cliffs at Happisburgh on the Norfolk coast." src="https://images.theconversation.com/files/566066/original/file-20231215-27-m57r9a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/566066/original/file-20231215-27-m57r9a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/566066/original/file-20231215-27-m57r9a.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/566066/original/file-20231215-27-m57r9a.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/566066/original/file-20231215-27-m57r9a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/566066/original/file-20231215-27-m57r9a.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/566066/original/file-20231215-27-m57r9a.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Happisburgh in Norfolk has lost a lot of land to the sea.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/crumbling-cliffs-sea-erosion-happisburgh-on-417847936">Helen Hotson/Shutterstock</a></span>
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<h2>Legality of the claims</h2>
<p>The preparation of the national adaption programme is required by <a href="https://www.legislation.gov.uk/ukpga/2008/27/section/58">section 58</a> of the UK <a href="https://www.legislation.gov.uk/ukpga/2008/27/contents">Climate Change Act 2008</a>. This article demands that the NAP3 sets out the objectives of the UK in relation to adaptation, as well as proposals for meeting these objectives.</p>
<p>However, section 58 does not explicitly require the government to take specific, ambitious action on adaptation to the impacts of climate change. The only indication in this law concerning the level of ambition that national adaption programmes should achieve is that adaptation objectives, proposals and policies “must be such as to contribute to sustainable development”. </p>
<p>There is no doubt that a progressive interpretation of the Climate Change Act may set an important precedent in relation to government obligation to actively adopt adaptation measures. The court, for example, may accept that the instruction that the NAP3 will “contribute to sustainable development” means that the government is obliged to adopt ambitious and specific adaptation measures, such as those requested by the claimants. </p>
<p>At the same time, it is also possible the court will understand this instruction in a very limited manner. For example, the court may clarify that the obligation to adopt adaptation measures is entirely within the discretion of the government and therefore, to put it bluntly, the government can do as it pleases. This is not an unlikely prospect given the High Court’s <a href="https://www.judiciary.uk/wp-content/uploads/2022/07/FoE-v-BEIS-judgment-180722.pdf">earlier narrow interpretation</a> of “sustainable development”.</p>
<p>The human rights arguments made by the claimants are clearer and simpler to understand. The fact that this case focuses on the government’s obligation to adapt to, rather than mitigate, climate change makes it easier to prove. The claimants don’t have to demonstrate that the UK government caused harm to their human rights, only that it has failed to protect them from the impacts of climate change.</p>
<h2>A growing trend</h2>
<p>This case is hardly a unique effort but rather part of a wider and growing trend of <a href="https://climatecasechart.com/">climate litigation</a> targeting both states and companies. Globally, hundreds of cases have been brought against states in the past two decades, with <a href="https://climatecasechart.com/non-us-jurisdiction/united-kingdom/">103</a> of them occurring in the UK.</p>
<p>A somewhat similar litigation – <a href="https://climatecasechart.com/non-us-case/union-of-swiss-senior-women-for-climate-protection-v-swiss-federal-council-and-others/">KlimaSeniorinnen v Switzerland</a> – is also currently before a different tribunal: the European Court of Human Rights. In this instance, a group of elderly citizens are claiming that the impacts of climate change are affecting certain human rights, including their right to life due to (among other things) climate change-related heatwaves. </p>
<p>The current UK case offers a glimpse into the potential benefits and risks that are involved in this strategy. The benefits are clear. The case has already been reported by leading media outlets and is being discussed by academics. </p>
<p>Winning the case and forcing the government to act on climate change could yet be another potential win, albeit an uncertain one given the record of climate litigation in the UK. While there have been a few celebrated cases, the vast majority of UK cases have been rejected.</p>
<p>The risks of climate litigation are equally clear. The court may clarify the meaning of the law – <a href="https://climatecasechart.com/non-us-case/r-finch-v-surrey-county-council/">as it has done before</a> – in a manner that those supportive of environmental action will not approve of. </p>
<p>This same risk exists in the current case. The court may limit the link between the impacts of climate change and human rights, or clarify that adaptation plan objectives could be as limited as the government wishes them to be.</p>
<p>To what extent this type of legal action will help tackle climate change in the UK remains to be seen. Given the risks discussed above, one may also question whether these cases bring more good than harm. But it’s a global phenomenon that shows no sign of stopping any time soon.</p>
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<img alt="Imagine weekly climate newsletter" src="https://images.theconversation.com/files/434988/original/file-20211201-21-13avx6y.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/434988/original/file-20211201-21-13avx6y.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/434988/original/file-20211201-21-13avx6y.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/434988/original/file-20211201-21-13avx6y.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/434988/original/file-20211201-21-13avx6y.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/434988/original/file-20211201-21-13avx6y.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/434988/original/file-20211201-21-13avx6y.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Can we avoid dangerous climate change by taking government to court?Avidan Kent, Senior Lecturer in Law, University of East AngliaIrene Lorenzoni, Professor of Society and Environmental Change, University of East AngliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2180072023-11-21T20:29:03Z2023-11-21T20:29:03ZBritish Columbia’s proposed bill on ‘alternative shelter’ risks doing serious harm to unhoused people<iframe style="width: 100%; height: 100px; border: none; position: relative; z-index: 1;" allowtransparency="" allow="clipboard-read; clipboard-write" src="https://narrations.ad-auris.com/widget/the-conversation-canada/british-columbias-proposed-bill-on-alternative-shelter-risks-doing-serious-harm-to-unhoused-people" width="100%" height="400"></iframe>
<p>A <a href="https://news.gov.bc.ca/releases/2023HOUS0150-001730">bill currently before the British Columbia legislature</a> seeks to define “reasonably available” alternative shelter when municipalities go to court to enforce bylaws against homeless encampments. If passed, <a href="https://www.leg.bc.ca/parliamentary-business/legislation-debates-proceedings/42nd-parliament/4th-session/bills/progress-of-bills">Bill 45</a> will undermine the Charter rights of some of the most vulnerable members of Canadian society.</p>
<p>The bill is short and cryptic. It says that, if a local government goes to court for an injunction to enforce its bylaws against someone sheltering in a homeless encampment, alternative shelter is “reasonably available” and meets the person’s basic shelter needs if the person may stay there overnight, they have access to a bathroom and shower at or near the shelter, they are offered one free meal a day at or near the shelter and the shelter is staffed when in use. </p>
<p>Beyond leaving key terms like “homeless,” “encampment” and “near” undefined, the bill simply asserts that shelter spaces are reasonable options if they meet this bare-bones description, regardless of whether they are actually accessible to tent city residents. </p>
<p>This would overturn a series of court decisions that insist shelter must be practically accessible to the individuals the government wants to evict from encampments.</p>
<h2>A punitive approach</h2>
<p>In Greater Vancouver alone, <a href="https://hsa-bc.ca/_Library/2023_HC/2023_Homeless_Count_for_Greater_Vancouver.pdf">more than 4,800 people</a> are homeless, sleeping in shelters, cars or outdoors. That is up a staggering 32 per cent since 2020.</p>
<p>Encampments are a visible sign of this crisis. Yet, despite an overwhelming lack of affordable housing, <a href="https://www.homelesshub.ca/resource/overview-encampments-across-canada-right-housing-approach">governments have taken a largely punitive approach to them</a>.</p>
<p>Courts have established that prohibiting unhoused people who lack adequate alternatives from sheltering overnight on public land <a href="https://www.canlii.org/en/bc/bcca/doc/2009/2009bcca563/2009bcca563.html?resultIndex=1">violates their constitutional right</a> to life and security of the person. Yet Canadian municipalities have gone to court repeatedly seeking injunctions to evict encampments from public land.</p>
<p>In <a href="https://allard.ubc.ca/sites/default/files/2023-10/Rush%20to%20Judgment%20Report%20Oct%202023.pdf">new research</a>, we show that courts have been remarkably eager to grant municipalities injunctions even though they are supposed to be drastic remedies for extraordinary situations. </p>
<p>But the tide is shifting. Courts across the country have increasingly begun to doubt and even <a href="https://canlii.ca/t/jv6dc">reject government claims</a> that overcrowded and unsafe shelters actually <a href="https://canlii.ca/t/jjzl4">meet the needs</a> of unhoused people.</p>
<p>Evicting unhoused people from their homes, however makeshift, is a <a href="https://vancouversun.com/opinion/op-ed/kasari-govender-we-need-to-talk-about-encampments">serious human rights violation</a>. But instead of taking a <a href="https://www.make-the-shift.org/wp-content/uploads/2020/04/A-National-Protocol-for-Homeless-Encampments-in-Canada.pdf">human rights approach</a> to homelessness, the B.C. government’s new bill makes it even easier to evict already vulnerable people.</p>
<h2>Practical barriers to shelter</h2>
<p>The bill’s definition of “reasonably available” alternative shelter might seem to give encampment residents some protection against arbitrary eviction. But it actually weakens existing legal protections by ignoring the barriers that make many shelters inaccessible, the distinct situation of Indigenous people and the need for shelter and storage during the day.</p>
<p>Violence, theft, mold, vermin and lack of privacy make some shelter options inaccessible to many unhoused people. Inaccessibility is particularly stark for <a href="https://www.homelesshub.ca/StateofWomenHomelessness">women and gender diverse people</a>.</p>
<p>Strict limits on how many belongings people can bring into shelters also present an impossible choice between <a href="https://belongingsmatter.ca/report/shelters-and-non-tenancy-accommodations">sleeping indoors and safeguarding belongings</a>. Bans on pets and couples are barriers for some. Curfews and abstinence rules limit accessibility for people dealing with substance use and addiction.</p>
<p>Many unhoused people, including those with mental health challenges, are ejected under “one strike you’re out” policies. Limits on shelter stays are another barrier. On top of it all, housing waitlist processes are confusing and frustrating.</p>
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Read more:
<a href="https://theconversation.com/homeless-people-deserve-the-same-right-to-their-belongings-that-we-all-have-201374">Homeless people deserve the same right to their belongings that we all have</a>
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<p>These barriers are well known to everyone concerned with homelessness, including the B.C. government. Courts say <a href="https://canlii.ca/t/jjzl4">they must be considered</a> when deciding whether to issue injunctions against encampments. </p>
<p>By ignoring them, the bill perpetuates a false stereotype of unhoused people as “choosy beggars” who deliberately refuse adequate shelter. This bill ignores the fact that people experiencing homelessness know best what shelter is safe and adequate for them.</p>
<h2>Indigenous people overrepresented</h2>
<p>Indigenous people are massively overrepresented in the unhoused population. They comprise just two per cent of Greater Vancouver’s population, <a href="https://hsa-bc.ca/_Library/2023_HC/2023_Homeless_Count_for_Greater_Vancouver.pdf">but 33 per cent of its homeless population</a>. Many have been profoundly affected by residential schools, colonial dispossession and anti-Indigenous racism. Existing shelter options reproduce these traumas.</p>
<p>Courts have <a href="https://www.canlii.org/en/bc/bcsc/doc/2021/2021bcsc2089/2021bcsc2089.html?searchUrlHash=AAAAAQAVUHJpbmNlIEdlb3JnZSBzdGV3YXJ0AAAAAAE&resultIndex=1">insisted</a> this context must be considered when determining whether shelter alternatives are adequate and accessible. Yet B.C.’s bill entirely ignores it, violating the province’s obligations to consult Indigenous Peoples on decisions that affect them and pass laws that comply with the <a href="https://social.desa.un.org/issues/indigenous-peoples/united-nations-declaration-on-the-rights-of-indigenous-peoples">United Nations Declaration on the Rights of Indigenous Peoples</a>.</p>
<h2>The need for daytime shelter</h2>
<p>Finally, the claim that having somewhere to spend the night meets a person’s basic needs for shelter is simply untrue. Having somewhere to shelter and store belongings during the day is a basic need that <a href="https://canlii.ca/t/glps4">courts have recognized for years</a>, and have begun to acknowledge as a <a href="https://canlii.ca/t/jv6dc">constitutional right</a>.</p>
<p>To deny unhoused people the ability to shelter throughout the day is to condemn them, in <a href="https://canlii.ca/t/gp40g">one judge’s words</a>, to “constant disruption and a perpetuation of a relentless series of daily moves to the streets, doorways, and parks” of Canadian cities.</p>
<p><a href="https://belongingsmatter.ca">As our research confirms</a>, packing up their homes, carrying all their belongings around all day — including tents, sleeping bags, clothing, toiletries and medicine — and lining up for somewhere to sleep every night is a hardship for all unhoused people and impossible for many.</p>
<p>Like B.C.’s <a href="https://policyoptions.irpp.org/magazines/october-2023/b-c-ban-public-consumption/">proposed ban on public consumption</a>, Bill 45 is aimed at excluding poor people from public spaces. Instead of addressing the province’s lack of housing and income inequality, the B.C. government is making it easier for municipalities to police poor and unhoused people.</p>
<p>This bill attempts to roll back existing Charter protections and limit courts’ discretion regarding injunctions against encampments. It will be deeply harmful to unhoused people if enacted.</p>
<p>As the B.C. legislature debates this bill, we need to send elected representatives a clear message: stop trying to justify the punishment, stigmatization and eviction of unhoused people and start to work seriously to <a href="https://make-the-shift.org/wp-content/uploads/2023/11/NWG-HE-Guidance-w-list.pdf">protect their rights to life, shelter, health and dignity</a>.</p><img src="https://counter.theconversation.com/content/218007/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Stepan Wood has conducted pro bono legal research and served as an expert witness at the request of lawyers representing residents of homeless encampments. </span></em></p><p class="fine-print"><em><span>Alexandra Flynn receives funding from the Social Sciences and Humanities Research Council and the Canada Mortgage and Housing Corporation.</span></em></p><p class="fine-print"><em><span>Estair Van Wagner receives funding from the Social Sciences and Humanities Research Council and the Office of the Federal Housing Advocate. </span></em></p>If passed, B.C.’s Bill 45 will trample over the constitutional rights of unhoused people by ignoring shelter barriers, Indigenous rights and the need for daytime shelterStepan Wood, Professor and Canada Research Chair in Law, Society & Sustainability, University of British ColumbiaAlexandra Flynn, Associate Professor, Peter A. Allard School of Law, University of British ColumbiaEstair Van Wagner, Associate Professor, Law, York University, CanadaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2181082023-11-20T04:45:09Z2023-11-20T04:45:09ZDavid McBride is facing jailtime for helping reveal alleged war crimes. Will it end whistleblowing in Australia?<p>The long-awaited trial of former Australian Defence Force lawyer David McBride was short-lived.</p>
<p>He stood accused of putting national security at risk by sharing confidential information with journalists, who then reported on <a href="https://www.abc.net.au/news/2017-07-11/killings-of-unarmed-afghans-by-australian-special-forces/8466642">alleged Australian war crimes</a> in Afghanistan. </p>
<p>An unexpected strategic move by the Department of Defence succeeded in withholding key documents from the ACT Supreme Court, <a href="https://www.theguardian.com/australia-news/2023/nov/17/australian-military-whistleblower-pleads-guilty-over-afghan-files-leak">all but dismantling</a> McBride’s claim for whistleblower protection.</p>
<p>Having now pleaded <a href="https://www.abc.net.au/news/2023-11-17/military-whistleblower-david-mcbride-trial-leaked-adf-war-crimes/103119808">guilty</a> to unlawfully sharing classified material, what happens to McBride? And what does it say about the state of whistleblower protection laws in this country?</p>
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Read more:
<a href="https://theconversation.com/how-and-why-australian-whistleblowing-laws-need-an-overhaul-new-report-195019">How and why Australian whistleblowing laws need an overhaul: new report</a>
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<h2>The end of a winding road</h2>
<p>David McBride was <a href="https://www.theguardian.com/australia-news/2019/mar/07/whistleblower-charged-with-exposing-alleged-military-misconduct-not-afraid-to-go-to-jail">charged in 2019</a> for disclosing secret military information to two ABC journalists. </p>
<p>His concerns had included Australian soldiers being sent to Afghanistan by a government he believed was more concerned with <a href="https://www.afr.com/policy/foreign-affairs/the-leadership-rewarded-and-encouraged-dishonesty-20231106-p5ehuu">politics</a> than the troops. Interestingly, the court heard last week McBride was also concerned about the <a href="https://www.abc.net.au/news/2023-11-17/military-whistleblower-david-mcbride-trial-leaked-adf-war-crimes/103119808">“over-investigation”</a> of misconduct by special forces. </p>
<p>Instead, that information revealed allegations of war crimes by Australian soldiers in Afghanistan and a <a href="https://www.abc.net.au/news/2020-11-19/afghanistan-war-crimes-report-igadf-paul-brereton-released/12896234">culture of cover-up</a> in the Defence Force. </p>
<p>The ABC used the information to publish the <a href="https://www.abc.net.au/news/2017-07-11/killings-of-unarmed-afghans-by-australian-special-forces/8466642">Afghan Files reports</a>. Many allegations were later supported by the inspector-general of the Australian Defence Force in the <a href="https://www.defence.gov.au/about/reviews-inquiries/afghanistan-inquiry">Brereton report</a>. </p>
<p>That report, released in November 2020, recommended the chief of the Defence Force refer 36 matters relating to 25 incidents and involving 19 individuals to the Australian Federal Police for investigation. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1725386166906863823"}"></div></p>
<p>So far, the only charges to have been laid as a result of these investigations are against McBride himself. A brief of evidence was also prepared against ABC journalist Dan Oakes, though the Commonwealth Director of Public Prosecutions <a href="https://www.theguardian.com/media/2020/oct/15/abc-journalist-dan-oakes-will-not-be-charged-over-afghan-files-reporting-afp-says">declined to prosecute</a> Oakes on public interest grounds.</p>
<p>It took four years for McBride’s case to get to court. Delays due to the pandemic and issues around maintaining the secrecy of classified information in court prolonged this process. </p>
<p>Eventually, the Department of Defence claimed public interest immunity over key information. This allows the government to withhold evidence (such as classified material) from the court on public interest grounds. </p>
<p>It means neither party can rely on the information. </p>
<p>This strategic decision meant McBride faced difficulties establishing key aspects of his whistleblower case. This included whether the information revealed relevant wrongdoing, his attempts to tell the department or police about his concerns, or whether the extent of the disclosure was necessary to establish wrongdoing. </p>
<p>On the other hand, the information McBride disclosed was security classified defence material that journalists were not authorised to receive. It is, therefore, not particularly surprising that he pleaded guilty to disclosure offences. </p>
<p>His only hope had been to avoid prosecution by grasping the shield of whistleblower protections.</p>
<h2>What next for McBride?</h2>
<p>McBride will now be sentenced for his offences, likely <a href="https://www.abc.net.au/news/2023-11-17/military-whistleblower-david-mcbride-trial-leaked-adf-war-crimes/103119808">next year</a>.</p>
<p>There is a chance the court will show leniency in sentencing, taking into account the demonstrated public interest in McBride’s disclosures. </p>
<p>This happened in the prosecution of <a href="https://www.abc.net.au/news/2021-06-18/act-witness-k-sentencing-hearing/100226438">Witness K,</a> who conspired to reveal an alleged spying operation in East Timor during oil and gas treaty negotiations.</p>
<p>They were not covered by whistleblower laws because the legislation does not apply to intelligence information, and also pleaded guilty to secrecy offences. </p>
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Read more:
<a href="https://theconversation.com/tax-office-whistleblowing-saga-points-to-reforms-needed-in-three-vital-areas-187608">Tax office whistleblowing saga points to reforms needed in three vital areas</a>
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<p>Alternatively, the judge may not be swayed by the public interest in McBride’s disclosures and McBride could face a lengthy jail term.</p>
<p>The length of any jail term will depend on a number of factors, such as:</p>
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<li><p>the extent of information disclosed</p></li>
<li><p>the deliberate nature of the disclosures</p></li>
<li><p>a need to deter future disclosures of classified defence information. </p></li>
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<h2>What does this mean for whistleblowers?</h2>
<p>The punishment of McBride would have tragic impacts on whistleblowing in Australia. </p>
<p>Far from being a crime, research has identified whistleblowing as “the single <a href="https://parkesfoundation.org.au/activities/orations/2019-oration/">most important way</a> that wrongdoing or other problems come to light in organisations”.</p>
<p>Whistleblowing led not only to the Brereton report, but the Robodebt inquiry, the Banking royal commission, and <a href="https://www.ccc.qld.gov.au/about-us/our-history/fitzgerald-inquiry">Fitzgerald inquiry</a> into police misconduct, to name but a few high profile examples. </p>
<p>The importance of whistleblowing has been recognised in Public Interest Disclosure Acts across Australia, protecting whistleblowers from reprisals, victimisation and prosecution. </p>
<p>The importance of these protections is heightened in recent years by the government’s willingness to prosecute whistleblowers such as <a href="https://www.theguardian.com/australia-news/2023/mar/27/ato-whistleblower-richard-boyle-face-trial-after-immunity-defence-fails">Richard Boyle</a> (who accused the Australian Taxation Office of using <a href="https://www.abc.net.au/news/2018-04-09/whistleblower-exposes-ato-cash-grab-targeting-small-businesses/9633140">aggressive tactics</a> to retrieve money), David McBride, and Witness K for calling out government wrongdoing. </p>
<p>Whistleblower protection law is not perfect. Calls for <a href="https://parkesfoundation.org.au/activities/orations/2019-oration/">its improvement</a> point to a need for greater consistency across private and public sector protections. </p>
<p>They also call for better protection for <a href="http://classic.austlii.edu.au/au/journals/UNSWLawJl/2021/44.html">intelligence and defence</a> whistleblowers, and supports for <a href="https://law.uq.edu.au/files/64972/whistleblowing.pdf">press freedom</a>. </p>
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Read more:
<a href="https://theconversation.com/its-a-new-era-for-australias-whistleblowers-in-the-private-sector-119596">It's a new era for Australia's whistleblowers – in the private sector</a>
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<p>The protections are yet to be tested. McBride’s case would have been the first opportunity to see how courts interpret and apply whistleblower law. </p>
<p>But the government’s decision to withhold information from court stopped these laws from being tested.</p>
<p>It’s easy to see how the government’s reaction to McBride’s decision to blow the whistle will deter future whistleblowers, sending a bad message about transparency, accountability and the importance of calling out wrongdoing by those in positions of power.</p><img src="https://counter.theconversation.com/content/218108/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rebecca Ananian-Welsh receives UQ Advancement Funding.</span></em></p>David McBride helped bring about a reckoning with the Australian Defence Force, but came at a legal cost. Will it stop others coming forward?Rebecca Ananian-Welsh, Associate Professor, TC Beirne School of Law, The University of QueenslandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2175562023-11-20T01:45:01Z2023-11-20T01:45:01ZThe rule of law is fundamental to a free society – so why don’t NZ courts always uphold it?<p>Ever since the 17th century, the <a href="https://www.justice.govt.nz/about/learn-about-the-justice-system/how-the-justice-system-works/the-basis-for-all-law/">rule of law</a> has been regarded as one of the fundamental values of a free society. It means you cannot be forced to do something unless there is a law requiring you to do it. </p>
<p>It also means people in power can coerce you only if there is a rule justifying it. This is the opposite of the “rule of persons”, in which the rulers have arbitrary power: they have the authority to force you to do things simply because they think those things should be done. </p>
<p>In free societies, the courts are the chief institution tasked with upholding the rule of law. It is their job to police government and other officials, to make sure they act only in accordance with the law. </p>
<p>But no one polices the courts. If they uphold the rule of law in their own decisions, that’s fine. But increasingly often, they don’t. And this raises important questions about how we want to be governed as a society.</p>
<h2>The role of judges</h2>
<p>Take, for example, the law of negligence. This is an area of law that allows one person to sue another for injuries that have been carelessly inflicted. To work, the law requires a test that will tell us when a person can sue. </p>
<p>The current approach reads like a set of rules, but basically comes down to <a href="http://www.nzlii.org/nz/cases/NZHC/2016/1945.html">two steps</a>: a judge needs to consider everything that relates to the relationship between the parties; and the judge then needs to consider everything else. </p>
<p>In the end, then, the “rule” is to consider everything. It is surely clear that this not really a rule. It is rather an open discretion pretending to be a rule. </p>
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Read more:
<a href="https://theconversation.com/high-supreme-federal-family-county-what-do-all-our-different-courts-actually-do-193228">High, Supreme, Federal, Family, County – what do all our different courts actually do?</a>
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<p>Consider also the law of trusts. This is a difficult and technical area of the law, but we can describe what the New Zealand courts have permitted in simple terms.</p>
<p>Imagine you own some property that I am looking after. I then enter into a relationship. My partner helps me look after the property. Eventually, our relationship breaks down and she wants some reward for the work she has done. </p>
<p>She may well be entitled to reward from me, but the courts in this country have dealt with this problem by allowing partners to claim part ownership of the property (as happened in the case of <a href="http://www.nzlii.org/nz/cases/NZCA/2014/377.html">Murrell v Hamilton</a> in 2014, for example). </p>
<p>The problem is this violates fundamental principles of property law. You owned the house from the beginning. How, then, can what went on in my relationship mean my partner came to own what was your property? </p>
<h2>The ‘rule of persons’</h2>
<p>That this was possible saw one leading legal commentator <a href="https://ojs.victoria.ac.nz/vuwlr/article/view/4791">observe</a> that, “in effect theft was being sanctioned by the courts”. </p>
<p>Why has this happened? Because, although the rules of property law would not permit it, the judges think the outcome is fair. If this is not the “rule of persons”, what is? </p>
<p>There are other examples, but one more will suffice. Imagine I do something horrible to you. If it’s a crime, I can be punished by the criminal law. But the courts have also said that if you sue me, a court may impose a monetary punishment on me that will go to you (effectively a fine). </p>
<p>When will such punishment be justified? Some leading New Zealand judges, including the previous chief justice, have said this punishment is justified not on the basis of some rule, but when a judge finds my behaviour to be sufficiently outrageous. (See, for example, the cases of <a href="http://www.nzlii.org/cgi-bin/LawCite?cit=%5b2001%5d%203%20NZLR%20622?query=bottrill">Bottrill v A</a> from 2001 or <a href="http://www.nzlii.org/nz/cases/NZSC/2010/27.html">Couch v AG</a> from 2010). </p>
<p>In other words, the position is that I can be punished if a judge thinks I behaved badly enough. Could it be any clearer this is the rule of persons and not the rule of law? </p>
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Read more:
<a href="https://theconversation.com/white-collar-criminals-benefit-from-leniency-provisions-in-nz-law-why-the-disparity-with-other-kinds-of-crime-205283">White-collar criminals benefit from leniency provisions in NZ law – why the disparity with other kinds of crime?</a>
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<h2>Rule by experts</h2>
<p>The judges who advanced this view were outvoted by the other judges who presided in those cases. But it would be wrong to conclude all is well. As another <a href="http://www.nzlii.org/nz/cases/NZHC/2023/2258.html">recent case showed</a>, the idea remains attractive to judges.</p>
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<p>Why does this matter? The rule of law has been under pressure for about a hundred years. As I explain in my recent book, <a href="https://www.e-elgar.com/shop/gbp/freedom-under-the-private-law-9781035314515.html">Freedom under the Private Law</a>, society has become increasingly technocratic during this period, and the experts who govern it often prefer to do what seems right to them, rather than follow established rules.</p>
<p>It may not be surprising, then, if judges have come to see themselves similarly. But if the rule of law in our courts goes, where does it leave us? We will be ruled, rather than ruling ourselves, and this fundamental pillar of our liberty will be gone.</p><img src="https://counter.theconversation.com/content/217556/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Allan Beever does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Court decisions based on a judge’s discretion rather than the letter of the law are increasingly common. But this risks undermining some basic liberties.Allan Beever, Professor of Law, Auckland University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2006352023-11-08T06:45:09Z2023-11-08T06:45:09ZThe words that helped wrongly convict Kathleen Folbigg<blockquote>
<p><strong>Prosecutor:</strong> Are you able to say whether or not Caleb died from a catastrophic asphyxiating event of unknown causes? </p>
<p><strong>Pathologist:</strong> I believe that is likely. […]</p>
<p><strong>Prosecutor:</strong> In relation to Laura […] her cause of death was consistent with smothering? </p>
<p><strong>Pathologist:</strong> Yes.</p>
<p><strong>Prosecutor:</strong> Including deliberate smothering?</p>
<p><strong>Pathologist:</strong> Yes.</p>
<p><strong>Prosecutor:</strong> And that she probably died from an acute catastrophic asphyxiating event of unknown causes?</p>
<p><strong>Pathologist:</strong> Yes. – (<a href="https://www.folbigginquiry.justice.nsw.gov.au/Documents/Amended%20Exhibit%20F.pdf">Transcript pp. 746-48</a>)</p>
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<p>The above exchange occurred during the seven-week trial leading to Kathleen Folbigg’s conviction for the deaths of her four infant children (Caleb, Patrick, Sarah and Laura) between 1989 and 1999. During the trial, the word “asphyxia” in its various forms (-ate; -ation; -ating) was used 208 times; “smother” (-ing; -ed) 221 times; and “consistent with” 233 times. </p>
<p>The pathologists and doctors concurred that the absence of external injuries was “consistent with” Caleb dying of a “catastrophic asphyxiating event”. This was repeated for each of the four children by each of the doctors, with strangling or smothering likely to be uppermost in the minds of the jurors. </p>
<p>Of course, Folbigg’s wrongful conviction had <a href="https://johnmenadue.com/the-wrongful-conviction-of-kathleen-folbigg-why-did-it-happen-and-what-must-be-done-to-stop-it-from-happening-again/">numerous factors</a>. We have no way of knowing why the jury decided as it did. </p>
<p>But there are good reasons for forensic medicine practitioners and advocates to rethink their understanding – and use – of these words. </p>
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Read more:
<a href="https://theconversation.com/how-witch-hunts-and-stockholm-syndrome-became-part-of-political-language-and-what-it-has-to-do-with-wrestling-209375">How 'witch-hunts' and 'Stockholm syndrome' became part of political language (and what it has to do with wrestling)</a>
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<h2>The semantic journey of asphyxia</h2>
<p>“Asphyxia” first appeared <a href="https://quod.lib.umich.edu/cgi/t/text/text-idx?c=eebo2;idno=B22610.0001.001">in print</a> in 1699 defined as “without any Pulse, or sign of Life”. Predictably, this meaning “stoppage of pulse” then sprouted the meaning “stoppage of respiration” – a lack of breath is a salient sign of lifelessness. </p>
<p>Subsequently, the path has been rocky, and it is now understood variously by forensic doctors around the world. What is agreed, however, is that “asphyxia” is not a diagnosis; it is not a condition that can be pointed at or diagnosed. </p>
<p>As far as lay understandings go, things get murkier. Modern dictionaries list many senses but privilege “respiratory failure”, with “suffocation” usually given as a synonym; this in turn is defined as the interruption of breathing, including some means by which it’s brought about (for example, smothering, throttling). </p>
<p>The Urban Dictionary’s definition for “asphyxiation” is “death by strangulation; ergo blockage in air passage”. This dictionary has its problems, but like other collaboratively constructed dictionaries, it is useful for tracking contemporary social meanings of expressions not yet in more mainstream dictionaries.</p>
<h2>More murkiness</h2>
<p>In the trial, confused senses of “asphyxia” were combined with the misleading phrase “consistent with”. As used by experts, this is synonymous with “may or may not mean”. </p>
<p><a href="https://repository.uclawsf.edu/hastings_law_journal/vol59/iss5/7/">Research</a> shows, however, that people without expert knowledge hear the phrase as strong confirmation of the proposed connection.</p>
<p>In the <a href="http://netk.net.au/Canada/Morin10.asp">1998 Canadian inquiry</a> into the (wrongful) conviction of Canadian man Guy Paul Morin, Commissioner Kaufman was scathing in his criticism of the use of “consistent with”. He regarded it as demonstrably misleading language, variably being used to mean:</p>
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<p>‘could have come, or cannot be excluded as coming, from the accused’; ‘not inconsistent with’; ‘more than a possibility but less than a probability’; ‘perfect or near identity of two items’.</p>
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<p>The <a href="https://www.oed.com/dictionary/consistent_adj?tab=meaning_and_use">historical thesaurus</a> of the Oxford English Dictionary suggests this last sense “perfect or near identity of two items” has been around since the 1600s. Clearly, we can’t assume people today would automatically understand “consistent with” as simply a way of saying what is proposed is possible.</p>
<h2>Bad meanings drive out good</h2>
<p>The meanings we carry around in our heads seem so natural we fail to realise other people can have quite different understandings. </p>
<p>As linguist <a href="https://oxford.universitypressscholarship.com/view/10.1093/acprof:oso/9780198709831.001.0001/acprof-9780198709831">Nick Enfield</a> describes, we hypothesise what others mean by the words they use. And the more unusual a word is, the more its meanings will vary because we aren’t given the same opportunities to refine our hypotheses. </p>
<p>For example, what part of the foot do you understand as the “instep” – the upper surface between toes and ankle, the underneath part, or perhaps both the top and underneath? All three meanings are out there, and different dictionaries favour different ones. </p>
<p>Does this really matter? In a highly circumstantial murder trial, it does.</p>
<p>Words are <a href="https://www.cambridge.org/core/books/forbidden-words/E7E4C037E8F1A91DE2ECA05CD70A3078">far more likely</a> to take on negative overtones than favourable ones. The linguistic evidence is compelling – negative senses come to dominate and eventually quash all other senses. This transformation has a name: Gresham’s Law of Semantic Change.</p>
<p>It comes as no surprise that crowdsourced online dictionaries show the homicidal senses of “asphyxia” (and its derived forms) as winning out.</p>
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<h2>Asphyxia permeated Kathleen Folbigg’s trial</h2>
<p>Importantly, it was agreed by all involved none of the babies showed any injuries. (Two pinpoint scratches on Sarah’s lower lip were agreed to be of no significance).<br>
As the prosecutor said: </p>
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<p>All they [the doctors] can say is that there was some form of obstruction that caused oxygen not to be able to get into the lungs and that’s what caused these babies to die […] all they can say is that it was induced asphyxiation from an external cause […]“ (<a href="https://www.folbigginquiry.justice.nsw.gov.au/Documents/Amended%20Exhibit%20F.pdf">Transcript p. 66</a>)_</p>
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<p>It was repeatedly asserted the presence of no injuries in any of the Folbigg children "was consistent with the occurrence of an acute catastrophic asphyxiating event” or “smothering”. This was probably heard by the jury as indicating no injuries meant an “asphyxial event” had occurred – in other words, the children had been strangled or smothered. </p>
<p>There was also repeated reference to the absence of natural explanations for four sudden and unexplained deaths in one family – with the unstated inference that the only reasonable explanation was homicide. Known as Meadows Law, this inference stalked Kathleen Folbigg’s trial and her subsequent appeals relentlessly. Meadows Law falls at the first hurdle: how likely is it there would be four murders – where there are no injuries – masquerading as natural deaths? </p>
<p>In <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWSC/2003/895.html?context=1;query=R%20v%20Folbigg;mask_path=au/cases/nsw/NSWSC">his sentencing remarks</a>, the judge stated:</p>
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<p>No (expert) witness was prepared to say that the signs pointed only to smothering but the medical evidence generally was that the result of each event was consistent with having been caused by acute asphyxiation. The jury accepted that evidence.</p>
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<p>That summary encompasses the following linguistic storm: the doctors might say they thought the prosecutor was talking about asphyxia as meaning hypoxia/anoxia (low oxygen levels) due to any one of a myriad of causes.</p>
<p>The prosecutor believed he was asking whether, and the doctors were telling him that, the babies died from induced airways obstruction from external causes. And the jury thought they were being told the babies were smothered, or even strangled.<br>
All of this is medically incoherent and incapable of establishing anything of significance – but probably had a powerful effect on the jury. </p>
<h2>'The wisdom of the crowd’</h2>
<p>Since its first appearance in English in the 1600s, the term “asphyxia” has caused confusion. </p>
<p>In forensic pathology, it encompasses a number of concepts and is used variously by pathologists – and these uses are out of alignment with common lay usage. Combined with different understandings of “consistent with”, this confusion was very much to Folbigg’s disadvantage. </p>
<p>The jury system relies on “the wisdom of the crowd”. Forensic doctors, advocates and judges must recognise that, despite what they think and dictionaries say, the crowd can understand words very differently, and this can have consequences. </p>
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Read more:
<a href="https://theconversation.com/brekkies-barbies-mozzies-why-do-aussies-shorten-so-many-words-192616">Brekkies, barbies, mozzies: why do Aussies shorten so many words?</a>
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<img src="https://counter.theconversation.com/content/200635/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Professor Cordner was an expert witness at both Commissions of Inquiry into the convictions of Kathleen Folbigg. </span></em></p><p class="fine-print"><em><span>Kate Burridge does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The meanings we carry around in our heads seem so natural and inborn that we fail to realise other people can have quite different understandings.Kate Burridge, Professor of Linguistics, Monash UniversityStephen Cordner, Senior Consultant/Professor Emeritus, Dept of Forensic Medicine, Monash University, Victorian Institute of Forensic MedicineLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2148472023-10-30T19:11:06Z2023-10-30T19:11:06ZSome people think income tax is illegal. It’s pseudolaw, and it’s damaging the legal system<p>Judges have described it as “gibberish”, “obvious nonsense”, “largely incoherent, if not incomprehensible” and “gobbledygook”. </p>
<p>It involves grand claims like “Magna Carta means you do not need to pay your mortgage”, or “the introduction of decimal currency means income tax is illegal”. </p>
<p>It’s the strange and growing phenomenon of pseudolaw.</p>
<p>Pseudolaw looks a bit like law. It uses legal texts and sounds kind of like something a lawyer might say. But it does not follow normal legal rules. </p>
<p>So where did it come from, and why it is so worrisome? </p>
<h2>Where did pseudolaw come from?</h2>
<p>Pseudolaw is not new to Australia. </p>
<p>For almost 40 years one vexatious litigant has repeatedly argued <a href="https://qldbusinesspropertylawyers.com.au/blog/serial-litigant-barred-50th-time-banknote-argument/">Australian bank notes violate the Constitution</a>. </p>
<p>Nevertheless, the COVID pandemic has seen a <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4561504">dramatic increase</a> in pseudolaw claims and a shift in their nature.</p>
<p>During this period the de facto emblem of the pseudolegal Sovereign Citizen movement – the <a href="https://theconversation.com/what-is-the-australian-merchant-navy-flag-the-red-ensign-and-why-do-anti-government-groups-use-it-170270">Australia Red Ensign flag</a> – became the defining symbol of anti-government protests.</p>
<p>In our <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4561504">recent study</a> on the phenomenon, we found pseduolaw is being influenced by the US sovereign citizen movement.</p>
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Read more:
<a href="https://theconversation.com/what-is-the-australian-merchant-navy-flag-the-red-ensign-and-why-do-anti-government-groups-use-it-170270">What is the Australian merchant navy flag, the red ensign? And why do anti-government groups use it?</a>
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<h2>What’s the sovereign citizen movement?</h2>
<p>The sovereign citizen movement emerged in the US in the 1990s out of several overlapping extremist groups. </p>
<p>Members are largely connected by a shared antagonism towards government and a convoluted and conspiratorial interpretation of the law. </p>
<p>While there are significant variations in beliefs and ideologies among members, in our study, we found they make several common arguments.</p>
<p>Sovereign citizens tend to believe <a href="https://theconversation.com/living-people-who-are-the-sovereign-citizens-or-sovcits-and-why-do-they-believe-they-have-immunity-from-the-law-143438">all laws are forms of contract</a>. </p>
<p>Because they did not agree to wear a mask, obtain a driver’s licence, or pay council rates (for example), they are not bound by those laws. </p>
<p>To many in the movement, the government is a corporation and therefore whatever laws it claims to make are illegitimate. </p>
<p>They also believe they can gain freedom by rejecting the corrupt authority of the state. </p>
<p>This leads them to tear up their birth certificates, refuse state ID like drivers’ licences, or enrolment in government programs. They see themselves as free sovereigns or natural living beings. </p>
<p>In confrontations with police and arguments in court they will recite phrases such as “<a href="https://www.news.com.au/technology/motoring/on-the-road/an-act-is-not-a-law-sovereign-citizen-gets-roasted-by-quickthinking-cop/news-story/a1f40a672d37011ce64d02d40a4a1122">I am a living person</a>” or “<a href="https://www.9news.com.au/national/what-is-a-sovereign-citizen-movement-beliefs-explainer/968ac369-a7bd-4a6d-9465-7bc2a1d13bdf">I do not consent</a>”, which they believe provide legal immunity. </p>
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Read more:
<a href="https://theconversation.com/who-are-the-original-sovereigns-who-were-camped-out-at-old-parliament-house-and-what-are-their-aims-174694">Who are the 'Original Sovereigns' who were camped out at Old Parliament House and what are their aims?</a>
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<p>Some may write their <a href="https://www.adl.org/sites/default/files/documents/assets/pdf/combating-hate/Sovereign-Citizen-Documentary-Identifiers.pdf">name in capital letters</a> or with dashes, colons, or semi-colons between letters or words to distinguish their natural self from the fictitious legal construct. </p>
<p>Some even create their own <a href="https://www.news.com.au/finance/business/banking/28-days-to-vacate-former-one-nation-senator-attempts-to-use-common-law-to-take-back-farm/news-story/7ec8443678c6738dfc417edf495b3a15">common law sheriffs</a> or courts to enforce their laws.</p>
<p>But not only do these arguments not work in court, these beliefs are having an increasingly detrimental impact on our legal system. </p>
<h2>Influence in courts and beyond</h2>
<p>Our study sought to map the impact of these claims in Australian and New Zealand courts. </p>
<p>We found hundreds of examples, with increasing evidence that Magistrates Courts are becoming <a href="https://www.abc.net.au/news/2023-05-08/nsw-magistrates-report-sharp-rise-in-sovereign-citizen-cases/102285772">overwhelmed</a> by them.</p>
<p>For example, in a <a href="https://www.queenslandjudgments.com.au/caselaw/qdc/2010/451">Queensland case</a>, Mr Van der Hoorn appealed his conviction for driving without a valid license, registration, or insurance. </p>
<p>He claimed to be “Sovereign Freeman JOHAN” who was appearing as agent on behalf of and as the “owner of the created fictions known as JOHAN HENDRICK VAN DEN HOORN and JOHN HENRY VAN DEN HOORN, being created fictions fraudulently owned and controlled by legal fictions”. </p>
<p>In New Zealand, Mr Niwa sought to avoid his tax liabilities by arguing the debt was owed by an entirely different person. </p>
<p><a href="http://www.nzlii.org/nz/cases/NZHC/2019/853.html">He explained there were two people involved</a>, “Donald-James of the family Niwa” and “DONALD NIWA (TM)”. Mr Niwa declined to “accept the role of the defendant” and therefore argued he should not have to pay. </p>
<p>Neither Mr Niwa nor Mr Van der Hoorn succeeded. Neither did the hundreds of other applicants we found. </p>
<p>These sovereign citizen style arguments are not only appearing in courtrooms. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/556467/original/file-20231029-21-9wvlbl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A close up shot of an ancient document, reading 'Magna Carta of King John, AD 1215'" src="https://images.theconversation.com/files/556467/original/file-20231029-21-9wvlbl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/556467/original/file-20231029-21-9wvlbl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/556467/original/file-20231029-21-9wvlbl.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/556467/original/file-20231029-21-9wvlbl.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/556467/original/file-20231029-21-9wvlbl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/556467/original/file-20231029-21-9wvlbl.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/556467/original/file-20231029-21-9wvlbl.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Pseudolegal claims often cite the more than 800 year-old Magna Carta.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/magna-carta-libertatum-eighthundred-yearold-english-287752943">Shutterstock</a></span>
</figcaption>
</figure>
<p><a href="https://www.theguardian.com/australia-news/2023/oct/03/indigenous-australian-native-title-claim-sovereign-citizen-conspiracies">One recent study</a> found Aboriginal individuals and communities dissatisfied with Native Title processes have begun employing these arguments. </p>
<p>Individuals armed with a false sense of pseudolegal justice are also <a href="https://www.abc.net.au/news/2023-04-04/anti-vax-group-my-place-plan-to-influence-your-local-council/102166182">targeting council</a>, and <a href="https://www.abc.net.au/news/2023-10-05/united-nations-voice-conspiracy-misinformation-spread-revealed/102932852">spread baseless claims</a> about the Voice to Parliament referendum. </p>
<h2>Why does this matter?</h2>
<p>The rise of sovereign citizen arguments is concerning. </p>
<p>Pseudolaw has a tendency to transform routine and relatively simple legal issues into much more complex and harmful ones that can hurt litigants, their families, and friends, and the legal system at large. </p>
<p>Litigants waste time and money and forego the opportunity to obtain capable legal representation. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/no-thats-not-the-law-the-danger-of-using-pseudolegal-arguments-against-covid-19-rules-170630">No, that's not the law: the danger of using pseudolegal arguments against COVID-19 rules</a>
</strong>
</em>
</p>
<hr>
<p>It also creates opportunities for scammers and charlatans to benefit from a lack of knowledge about law and government. </p>
<p>These legal arguments also represent the tip of the spear. Sovereign citizens are, occasionally, <a href="https://www.abc.net.au/news/2022-12-16/qld-police-shooting-gareth-nathaniel-stacey-train-conspiracy/101778102">violent</a>.</p>
<h2>How can we respond?</h2>
<p>The response to pseudolaw must occur at multiple levels of society. </p>
<p>Courts can reject abusive submissions, and law societies can make clear that some people are simply selling snake oil. But legal responses are limited. </p>
<p>In fact, difficult and expensive legal systems contribute to the growth of pseudolaw. Legal education is costly. Information is behind paywalls. Representation is pricey. </p>
<p>Pseudolaw grew in response to COVID and public health orders that threatened people’s jobs. It grows in response to and as result of unrest, dissatisfaction, and inequality. </p>
<p>Where law and government seems elitist and inaccessible, pseudolaw thrives. </p>
<p>It is free online. You can find it in community groups that provide support and encouragement. That support comes swaddled in misinformation and disinformation. </p>
<p>We need to take pseudolaw seriously. Making the law more accessible and improving civics education is a first step. But the solution will require social, political and economic support as well as legal responses.</p><img src="https://counter.theconversation.com/content/214847/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joe McIntyre receives funding from the Law Foundation of South Australia to examine the rise of pseudolaw in South Australia.</span></em></p><p class="fine-print"><em><span>Harry Hobbs and Stephen Young do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Pseudolaw looks a bit like law. It uses legal texts and sounds like something a lawyer might say. But it does not follow normal legal rules. So where did it come from, and why it is so worrisome?Harry Hobbs, Associate professor, University of Technology SydneyJoe McIntyre, Associate Professor of Law, University of South AustraliaStephen Young, Senior Lecturer, University of OtagoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2052802023-09-27T12:27:32Z2023-09-27T12:27:32ZHip-hop on trial: When can a rapper’s lyrics be used as evidence in a criminal case?<figure><img src="https://images.theconversation.com/files/550095/original/file-20230925-15-k47xmb.jpg?ixlib=rb-1.1.0&rect=0%2C139%2C3000%2C1293&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Brooklyn rapper 6ix9ine's lyrics were used against him during his criminal trial in 2019.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/rapper-tekashi-6ix9ine-performs-during-the-miamibash-2021-news-photo/1359692864">John Parra/Getty Images</a></span></figcaption></figure><p>When <a href="https://www.cnn.com/2023/09/08/us/kenjuan-mcdaniel-nevada-rapper-arrested-murder/index.html">police arrested Nevada rapper</a> Kenjuan McDaniel on a murder charge in August 2023, they cited a <a href="https://www.youtube.com/watch?v=j9PEkytzyqg">music video he posted on YouTube</a> that they say includes details of a 2021 killing that had not been made public.</p>
<p>McDaniel, who uses the social media handle TheBiggestFinn4800, had previously been <a href="https://www.washingtonpost.com/nation/2023/09/11/las-vegas-rapper-murder-song/">considered a person of interest</a> in the case. His lyrics included: “Parked the car / double back on feet / the smartest way to slide / drove in / double lock yo man / make sure you get yo bod’.”</p>
<p>As a <a href="https://theconversation.com/critical-race-theory-what-it-is-and-what-it-isnt-162752">critical race theory</a> scholar who <a href="https://scholar.google.com/citations?user=HLGeVBwAAAAJ&hl=en&oi=ao">researches systems of oppression</a>, I know McDaniel’s case is not unique. Lawyers have used rappers’ lyrics as <a href="https://casetext.com/case/us-v-foster-106">evidence in criminal cases</a> since shortly after the <a href="https://ssrn.com/abstract=3274067">rise of gangsta rap</a> in the late 1980s.</p>
<p>Rap lyrics were introduced as evidence in criminal cases against San Francisco Bay Area rapper <a href="https://www.kqed.org/news/11954252/did-mac-dre-really-go-to-prison-because-of-his-lyrics">Andre “Mac Dre” Hicks in 1992</a>, <a href="https://www.nytimes.com/2022/08/26/arts/music/california-rap-lyrics-bill-young-thug.html">Snoop Dogg in 1996</a>, <a href="https://www.theguardian.com/us-news/2022/sep/03/california-mckinley-mac-phipps-rap-music-black-rappers">McKinley “Mac” Phipps, Jr. in 2000</a>, <a href="https://www.latimes.com/archives/la-xpm-2012-may-10-la-na-nn-rap-lyrics-at-heart-of-murder-trial-20120510-story.html">Lil Boosie in 2012</a>, <a href="https://perma.cc/QX6Y-EYG6">Drakeo the Ruler in 2016</a>, <a href="https://www.courtlistener.com/docket/14608592/340/united-states-v-jones/">6ix9ine in 2019</a> and <a href="https://time.com/6192371/young-thug-rap-lyrics-evidence-court/">Young Thug in 2022</a>.</p>
<p>In fact, researchers at the University of Richmond documented at least <a href="https://www.nytimes.com/2022/03/30/opinion/rap-music-criminal-trials.html">500 cases from 2009 to 2019</a> where rap lyrics were introduced as evidence in criminal trials.</p>
<figure class="align-center ">
<img alt="Young Thug performs on stage." src="https://images.theconversation.com/files/550351/original/file-20230926-17-iuykcf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/550351/original/file-20230926-17-iuykcf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/550351/original/file-20230926-17-iuykcf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/550351/original/file-20230926-17-iuykcf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/550351/original/file-20230926-17-iuykcf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/550351/original/file-20230926-17-iuykcf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/550351/original/file-20230926-17-iuykcf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A 2022 indictment against Young Thug cited his lyrics and music videos.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.ca/detail/news-photo/young-thug-performs-at-bumbershoot-at-seattle-center-on-news-photo/1026085622">Suzi Pratt/WireImage via Getty Images</a></span>
</figcaption>
</figure>
<h2>Rap lyrics as criminal evidence</h2>
<p>Both federal and state courts have <a href="https://core.ac.uk/download/pdf/56358301.pdf">established rules</a> that require the use of a balancing test to determine whether to exclude evidence. </p>
<p>If prosecutors can show that a rapper’s lyrics establish motive, intent or identity related to an alleged crime, then <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3989443">most judges will allow</a> for the evidence to be used.</p>
<p>Judges are expected to balance whether the proof outweighs any prejudicial value – or tendency to unfairly or improperly influence the jury. For example, under this balancing test, a defendant rapper’s lyrics should be excluded if the lyrics will do more to poison the jury against the defendant than to establish their connection to a specific crime. </p>
<p>But case law regarding using rap lyrics as evidence of a crime can vary from state to state, and judge to judge.</p>
<p>In 2014, the New Jersey Supreme Court found that the introduction of a defendant rapper’s lyrics <a href="https://casetext.com/case/state-v-skinner-72">should not have been admitted into evidence</a>, because the lyrics were general in nature and did not demonstrate motive or intent. Instead, the court found, the lyrics served to activate particular biases the jury had against rap and, as a result, the defendant rapper. </p>
<p>In 2020, the Maryland Court of Appeals decided that a defendant rapper’s lyrics – despite also lacking specific details related to the alleged crime – <a href="https://scholar.google.com/scholar_case?case=16414693362328239925&hl=en&as_sdt=6&as_vis=1&oi=scholarr">could be admitted as evidence</a>. According to the judge, the lyrics intended to intimidate witnesses prior to the trial. To be clear, the defendant rapper recorded the lyrics from a detention center 10 months after the alleged murder he was being held for, and three weeks before his trial. Essentially, the court focused more on the timing of the lyrics in relationship to the trial and a completely new alleged crime, not the commission of the crime the rapper was being held for, or the substance of his recorded lyrics.</p>
<h2>Criminalizing Black artists</h2>
<p>Using rap lyrics as evidence in criminal cases is problematic not only because it can deny a defendant a fair trial, but also because many lyrics are creative, metaphorical works that have double meanings or are based on fictional experiences.</p>
<p>In 1991, <a href="https://casetext.com/case/us-v-foster-106">federal prosecutors demonstrated</a> that a defendant rapper knowingly possessed and intended to distribute drugs that he was carrying in two suitcases upon his arrest. During the trial, the defendant rapper claimed he was not aware of the contents of the suitcase. Prosecutors introduced the defendant rapper’s notebook, which included the following lyrics: “Key for key. Pound for pound. I’m the biggest dope dealer and I serve all over town … ” </p>
<p>During the trial, prosecutors submitted evidence to demonstrate that the word “key” was common slang used in cocaine trafficking to refer to kilogram. In this instance, the defendant rapper’s lyrics were accepted as autobiographical, and not metaphorical. They qualified as one of the only pieces of evidence to establish criminality.</p>
<p>While there have been <a href="https://www.nytimes.com/2022/03/30/opinion/rap-music-criminal-trials.html">hundreds of cases</a> in the past 30 years brought against defendant rappers to use their rap lyrics as evidence of a crime, similar charges have not been brought against creatives in other genres at the same rate. Some scholars have suggested that this difference in treatment is, in part, a result of rap lyrics oftentimes <a href="https://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=1392&context=elr">being excluded from certain First Amendment protections</a>. </p>
<p>As a result, allowing a rap artist’s lyrics to be used as evidence of a crime risks weaponizing an art form dominated by Black and other people of color. As it is, Black Americans are already incarcerated in state prisons at <a href="https://www.sentencingproject.org/reports/the-color-of-justice-racial-and-ethnic-disparity-in-state-prisons-the-sentencing-project/">nearly five times</a> the rate as white Americans.</p>
<figure class="align-center ">
<img alt="Microphone with handcuffs." src="https://images.theconversation.com/files/550361/original/file-20230926-15-8eev1u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/550361/original/file-20230926-15-8eev1u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/550361/original/file-20230926-15-8eev1u.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/550361/original/file-20230926-15-8eev1u.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/550361/original/file-20230926-15-8eev1u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/550361/original/file-20230926-15-8eev1u.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/550361/original/file-20230926-15-8eev1u.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Two states have tried to limit lyrics being used as evidence in criminal cases.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.ca/detail/photo/microphone-with-handcuffs-royalty-free-image/1271650098?phrase=music++arrested">Talaj/iStock via Getty Images</a></span>
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</figure>
<h2>Protecting artistic expression</h2>
<p>In recent years, lawmakers in <a href="https://www.rollingstone.com/music/music-news/california-bill-banning-rap-lyrics-as-evidence-heads-to-governor-1234579851/">California</a> and <a href="https://www.billboard.com/pro/rap-lyrics-law-passes-new-york-senate-young-thug/">New York</a> have sought to limit the use of rap lyrics in evidence of criminality. </p>
<p>California <a href="https://www.usatoday.com/story/news/politics/2022/10/03/california-rap-lyrics-court-evidence/8167269001/">passed a bill</a> in September 2022 that would ban lyrics from being cited in court cases unless prosecutors can illustrate that the words are directly relevant to the case in question and won’t “inject racial bias into the proceedings.” The New York bill was introduced in January 2023 and aims to leverage statewide free speech protections to ensure criminal defendants are tried based on evidence and not on their artistic works. That bill <a href="https://www.nysenate.gov/legislation/bills/2021/S7527">is currently stalled</a>. </p>
<p>In July 2022, Democratic Rep. Hank Johnson of Georgia introduced the <a href="https://www.congress.gov/bill/117th-congress/house-bill/8531/all-actions">Restoring Artistic Protection Act</a>, or RAP Act. The federal legislation aims to <a href="https://www.congress.gov/117/bills/hr8531/BILLS-117hr8531ih.pdf">limit the admissibility of artistic expression as evidence</a>. </p>
<p>Since most <a href="https://law.duke.edu/lib/research-guides/court-rules/">state evidence law</a> is based on federal rules of evidence, the RAP Act could create a new standard in most states for limitation of rap lyrics as evidence of a crime. However, it has been awaiting review in the House Subcommittee on Crime, Terrorism, and Homeland Security. </p>
<h2>Case for caution</h2>
<p>English jurist <a href="https://lonang.com/wp-content/download/Blackstone-CommentariesBk4.pdf">William Blackstone asserted</a> in the 1760s that “all presumptive evidence of felony should be admitted cautiously: for the law holds, that it is better that 10 guilty persons escape, than that one innocent suffer.” </p>
<p>I believe admitting rap lyrics as evidence violates constitutional free speech considerations – especially considering the lyrics may be fictitious. The probability of prejudice against defendants who are rappers in any scenario, unfortunately, in 2023 is still too high. Prohibiting the use of lyrics can help ensure that not “one innocent suffer.”</p><img src="https://counter.theconversation.com/content/205280/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Taifha Natalee Alexander does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A critical race theory scholar explains why it’s problematic to use rap lyrics as evidence of a crime, and what some lawmakers are doing to protect artistic expression.Taifha Natalee Alexander, CRT Forward Project Director, University of California, Los AngelesLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2121752023-09-01T12:43:23Z2023-09-01T12:43:23Z‘The Blind Side’ lawsuit spotlights tricky areas of family law<figure><img src="https://images.theconversation.com/files/545068/original/file-20230828-244119-badfi1.jpg?ixlib=rb-1.1.0&rect=58%2C0%2C2878%2C1890&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Sean Tuohy, Michael Oher and Leigh Anne Touhy pose for a photo before a University of Mississippi game in 2008.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/michael-oher-of-the-ole-miss-rebels-stands-with-his-family-news-photo/83870434">Matthew Sharpe/Getty Images</a></span></figcaption></figure><p>What’s the difference between adoption and conservatorship? Millions of dollars and the freedom to make your own choices, if you ask retired football player Michael Oher.</p>
<p>Oher, whose story was made into the 2009 movie “The Blind Side,” says he believed he <a href="https://slate.com/culture/2023/08/blind-side-michael-oher-tuohys-lawsuit-conservatorship-adoption-lies.html">signed papers to be adopted</a> by an affluent white couple, Sean and Leigh Anne Tuohy, in 2004. But papers filed in court recently indicate Oher was in fact never adopted. Rather, he has been <a href="https://www.espn.com/nfl/story/_/id/38190720/blind-side-subject-michael-oher-alleges-adoption-was-lie-family-took-all-film-proceeds">under a court-imposed conservatorship</a> all this time. Further, it is alleged that the <a href="https://www.espn.com/nfl/story/_/id/38190720/blind-side-subject-michael-oher-alleges-adoption-was-lie-family-took-all-film-proceeds">arrangement allowed the Tuohys</a> to “gain financial advantages” by striking deals in Oher’s name.</p>
<p>The Tuohys’ attorneys have <a href="https://apnews.com/article/nfl-michael-oher-tuohys-blind-side-movie-1bebe2ba9ee2ba60ac806dabab4f6d4c">pushed back</a>, saying that Oher had long known he wasn’t formally adopted and that the <a href="https://people.com/blind-side-sean-tuohy-speaks-out-about-michael-oher-legal-petition-7643431">conservatorship was necessary</a> for his college football aspirations. Their current attorney has also said he believes the long timeline for getting an adoption – compared with the <a href="https://sports.yahoo.com/blind-side-controversy-why-the-tuohys-sought-a-conservatorship-over-adoption-for-michael-oher-141415218.html">relatively speedy</a> conservatorship process – played a role in their decision.</p>
<p>As the high-profile legal drama <a href="https://variety.com/2023/film/news/the-blind-side-controversy-producers-respond-michael-oher-1235704029/">continues to unfold</a>, Leigh Anne Tuohy’s <a href="https://perma.cc/2DVP-GSBR">personal website</a> still describes Michael Oher as the couple’s “adopted son.”</p>
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<p>As a <a href="https://www.law.virginia.edu/faculty/profile/nrc8g/2915359">law school professor</a> who teaches trusts and estates as well as family law, I have been intrigued by the precise connections between the Tuohys and Oher. A conservatorship and an adoption are two very different legal proceedings, and the resulting relationships are entirely distinct. </p>
<h2>What is a conservatorship?</h2>
<p>Conservatorships are legal mechanisms to help people who can’t care for themselves or their finances – for example, due to <a href="https://www.theguardian.com/commentisfree/2021/aug/18/britney-spears-case-guardianship-laws">advanced dementia</a>. They’re typically <a href="https://www.npr.org/2021/06/24/1009726455/britney-spears-conservatorship-how-thats-supposed-to-work">not for</a> people like Oher who have been signing their own contracts or writing their own books. The goal is to protect a vulnerable person’s well-being and their assets from being misused. Another recent conservatorship in the news, that of <a href="https://theconversation.com/why-conservatorships-like-the-one-controlling-britney-spears-can-lead-to-abuse-164617">Britney Spears</a>, was also the subject of contentious legal proceedings, although the conservator in that case was her father. </p>
<p>Adoption is a different legal process that results in a new parent-child relationship. Parents have certain rights and responsibilities for their children, but once a child turns 18 – regardless of whether they are adopted – they are legal adults: They can make their own medical decisions, enter into their own contracts and get married without any parental involvement. People in conservatorships don’t typically have the same kind of freedom.</p>
<p>In Tennessee, where the Tuohys live, parents are not required to support their children once they <a href="https://law.justia.com/codes/tennessee/2021/title-34/chapter-1/section-34-1-102/">graduate from high school</a>. But the existence of a parent-child relationship remains meaningful even after a child turns 18. For example, parents and children may have <a href="https://www.nytimes.com/2023/08/26/opinion/i-have-a-pretty-good-idea-why-michael-oher-is-angry.html">legal inheritance rights</a>, or children may be required to <a href="https://www.dallasnews.com/sponsored/2022/08/28/the-parent-trap-filial-responsibility-laws-cause-financial-havoc-for-children/">pay for a parent’s necessities</a>.</p>
<p>The Tuohys say they were told that they <a href="https://people.com/blind-side-sean-tuohy-speaks-out-about-michael-oher-legal-petition-7643431">couldn’t adopt an adult</a>. But under Tennessee law, as in <a href="https://www.childwelfare.gov/pubPDFs/parties.pdf">many other states</a>, adoption can take place at any age. To be sure, in Tennessee, anyone 14 or older <a href="https://codes.findlaw.com/tn/title-36-domestic-relations/tn-code-sect-36-1-117/">needs to consent for the adoption to take place</a>. So Oher would have had to agree – which he says he thought he did. </p>
<p>In addition, adoption <a href="https://codes.findlaw.com/tn/title-36-domestic-relations/tn-code-sect-36-1-117/">typically requires</a> <a href="https://www.findlaw.com/family/adoption/who-may-be-adopted.html">ending the rights of the birth parents</a>, which can be done either voluntarily or through a termination hearing. So even though Oher was over 18, the Tuohys could have adopted him – but that probably would have required ending the parental rights of Denise Oher, Michael Oher’s mother.</p>
<h2>Tuohys’ relationship to Oher</h2>
<p>The Tuohys didn’t file for adoption. Rather, they asked a court to appoint them Oher’s conservators, which it did.</p>
<p><a href="https://theconversation.com/why-conservatorships-like-the-one-controlling-britney-spears-can-lead-to-abuse-164617">Only a court</a> can impose a conservatorship, and only a court can terminate one. A handful of states explicitly allow for a “<a href="https://www.americanbar.org/groups/law_aging/publications/bifocal/vol-42/vol--42-issue-2--november-december-2020-/voluntary-guardianships--a-primer-on-states-guidance/">voluntary</a>” conservatorship – that is, one to which the person subject to the conservatorship agrees. Others, including Tennessee, <a href="https://heinonline-org.proxy1.library.virginia.edu/HOL/Page?handle=hein.journals/umem36&id=499&collection=journals&index=journals/umem">seem to allow that</a> implicitly, providing for <a href="https://law.justia.com/codes/tennessee/2010/title-34/chapter-1/34-1-107">special procedures</a> when the person joins the petition. </p>
<p>That appears to be what happened with Oher: He <a href="https://documents.shelbycountytn.gov/ProbateCourtDocuments/viewdoc.aspx?id=11">joined</a> in the request for a conservatorship, and so did his birth mother. At issue is whether he knew he was doing so.</p>
<p>Although <a href="https://thehill.com/opinion/judiciary/4164229-michael-ohers-shockingly-unnecessary-conservatorship-exposes-court-failures/">Tennessee law</a> requires that the court find an individual “<a href="https://law.justia.com/codes/tennessee/2010/title-34/chapter-1/34-1-126">fully or partially disabled and … in need of assistance”</a> before issuing the order on conservatorship, there do not seem to have been <a href="https://www.washingtonpost.com/sports/2023/08/25/blind-side-controversy/">any claims</a> that Oher could not manage his own finances, health or living situation. The court apparently found that it was in Oher’s “<a href="https://sports.yahoo.com/michael-oher-conservatorship-unlike-legal-141712383.html#:%7E:text=Judge%20Robert%20Benham%20noted%20in,in%20Oher's%20%E2%80%9Cbest%20interest.%E2%80%9D">best interest</a>.” </p>
<p>Nonetheless, the Tuohys were apparently given authority to act on behalf of Oher. Although they were appointed “<a href="https://www.caregiver.org/resource/conservatorship-and-guardianship/">conservators of the person</a>,” which typically does not include control over finances, they were also given authority to approve <a href="https://documents.shelbycountytn.gov/ProbateCourtDocuments/viewdoc.aspx?id=11%20NOTE%20THIS%20LINK%20DOES%20NOT%20WORK%20-%20how%20about%20this?%20%20https://www.vulture.com/article/blind-side-michael-oher-conservatorship-lawsuit-explained.html%22%22">any contract that Oher wished to sign</a>. It’s unclear just what financial arrangements they undertook, <a href="https://www.washingtonpost.com/sports/2023/08/25/blind-side-controversy/">other than those</a> that Oher alleges related to “The Blind Side” – he claims that a deal saw the Tuohys receive <a href="https://www.espn.com/nfl/story/_/id/38190720/blind-side-subject-michael-oher-alleges-adoption-was-lie-family-took-all-film-proceeds">millions of dollars in royalties</a> from the film. An attorney for the Tuohys <a href="https://people.com/tuohy-family-claims-blind-side-subject-michael-oher-attempted-15-million-shakedown-7643878">strongly denied</a> exploiting Oher, describing the lawsuit as a “shakedown”; they are reportedly preparing a legal response.</p>
<h2>Little oversight</h2>
<p>Conservatorships – also called guardianships in some states – can be useful to help people who cannot make their own decisions. Even then, to protect the individual’s autonomy, states typically require that conservators be given the least amount of power possible. </p>
<p>But there is typically <a href="https://time.com/6075859/britney-spears-conservatorship-disability/">very little oversight</a> over conservatorships. Generally, a conservator is supposed to provide an annual report to the court. Under-resourced courts, however, may not be able to monitor the guardianship. It isn’t even clear how many conservatorships exist in the U.S., due to <a href="https://www.eldersandcourts.org/guardianship_conservatorship/general-information/basics/data">uneven record-keeping</a>.</p>
<p>There are alternatives to guardianships. In advance of any incapacity, an individual can designate a trusted person, known as an “agent,” to act on their behalf through advance medical directives or financial powers of attorney. Another option is supported decision-making, in which the individual retains decision-making authority but receives help <a href="https://thearctennesse.wpengine.com/supported-decision-making-sdm-lev3/">from other people</a>. These arrangements can be informal or <a href="https://supporteddecisionmaking.org/faq/">written as contracts</a>.</p>
<h2>Oher’s options</h2>
<p>Oher has already asked the court to compel the Tuohys to stop using his name and image, to provide an accounting of – and an end to – the conservatorship, and to return any money which should have been paid to Oher. He is seeking information about his school records and any <a href="https://www.tennessean.com/story/news/2023/08/30/oher-seeks-blind-side-payment-information-in-conservatorship-battle/70717241007/">contracts related to the movie</a>. Outside of the conservatorship system, Oher could sue for damages in the event of any breach of fiduciary duty or fraud.</p>
<p>When all the smoke is cleared, maybe Oher can persuade Hollywood to make a sequel to “The Blind Side” about his struggle with the conservatorship system.</p><img src="https://counter.theconversation.com/content/212175/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Naomi Cahn does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Two very distinct legal processes are at issue in the Michael Oher case.Naomi Cahn, Professor of Law, University of VirginiaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2083492023-07-03T11:53:21Z2023-07-03T11:53:21ZThe Colorado website designer’s win is one of dozens of federal cases where religious beliefs and LGBTQ+ rights have clashed – and the pattern might not be what you think<figure><img src="https://images.theconversation.com/files/534218/original/file-20230627-17-9zpqxh.jpg?ixlib=rb-1.1.0&rect=3%2C9%2C2114%2C1400&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Viewed over decades, the Supreme Court's record on religion-related cases is more complicated than recent headlines suggest.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/sunrise-royalty-free-image/657130668?phrase=supreme+court&adppopup=true">Phil Roeder/Moment via Getty Images</a></span></figcaption></figure><p>Does a Colorado designer’s belief that marriage is between one man and one woman merit an exemption to state law barring discrimination against LGBTQ+ people? On June 30, 2023, the Supreme Court <a href="https://www.supremecourt.gov/opinions/22pdf/21-476_c185.pdf">decided 6-3 that the answer is yes</a>: Requiring a conservative Christian business owner to create wedding websites for gay couples would violate the free speech clause of the First Amendment.</p>
<p>Creating a website constitutes an “expressive activity” protected by the First Amendment, Justice Neil Gorsuch <a href="https://www.supremecourt.gov/opinions/22pdf/21-476_c185.pdf">wrote in the majority opinion</a>, and Colorado’s anti-discrimination law would “compel an individual to create speech she does not believe.” Thus, designer Lorie Smith has the right to follow “her conscience about a matter of major significance” and refuse her services for same-sex weddings. </p>
<p><a href="https://www.oyez.org/cases/2022/21-476">303 Creative v. Elenis</a> is the latest of a trio of Supreme Court cases where conservative Christian plaintiffs have argued that they should have the constitutionally protected right to refuse service to LGBTQ+ people. In 2018, it was a Colorado baker <a href="https://www.oyez.org/cases/2017/16-111">refusing to bake a cake</a> for a gay wedding. In 2021, <a href="https://www.oyez.org/cases/2020/19-123">it was a Catholic adoption agency</a> arguing it should not be forced to place foster children with gay couples and thus be exempt from Philadelphia’s nondiscrimination policy.</p>
<p>These cases are no doubt important, signaling a broader trend on the current court, which has frequently <a href="https://theconversation.com/how-the-supreme-court-found-its-faith-and-put-religious-liberty-on-a-winning-streak-158509">ruled in favor of Christian plaintiffs</a> on high-profile cases, particularly when it comes to cases that also involve gender and sexuality – although the Colorado baker’s win was <a href="https://www.theatlantic.com/ideas/archive/2018/06/the-court-slices-a-narrow-ruling-out-of-masterpiece-cakeshop/561986/">a narrow one</a> that avoided broader questions about civil rights, free speech and free religious exercise.</p>
<p>The big-picture view, however, is more complicated.</p>
<p><a href="https://soc.unl.edu/emily-kazyak">As sociologists</a> of <a href="https://kelsyburke.com">religion and sexuality</a>, we have <a href="https://doi.org/10.1007/s13178-023-00812-4">analyzed every federal court case between 1990 to 2020</a> that involves religious beliefs and LGBTQ+ people’s rights – a total of 62 cases. From this analysis, we know that the ruling in 303 Creative LLC v. Elenis runs counter to legal patterns of the past 30 years. </p>
<p>The latest Supreme Court rulings make it seem as if cases that deal with plaintiffs’ faith are usually successful in federal courts. More broadly, however, <a href="https://press.princeton.edu/books/paperback/9780691180953/the-impossibility-of-religious-freedom">the opposite is true</a>. Throughout U.S. history, litigants have drawn from ideas about religious liberty to attempt to justify violating the law, whether related to taxes, child labor, desegregation or dress codes. Most of the time they lose, and cases related to LGBTQ rights <a href="https://link.springer.com/article/10.1007/s13178-023-00812-4">are no exception</a>. </p>
<h2>Three types of claims</h2>
<p>Cases that involve religious freedom can take many forms. We focused our analysis on three types: those based on <a href="https://www.law.cornell.edu/wex/free_exercise_clause">the free exercise clause</a> of the First Amendment; those about free speech, as in 303 Creative, that are also based on <a href="https://www.law.cornell.edu/wex/first_amendment">the First Amendment</a>; and religion claims citing <a href="https://www.eeoc.gov/statutes/title-vii-civil-rights-act-1964">Title VII of the Civil Rights Act</a>, which prohibits employment discrimination.</p>
<p><a href="https://doi.org/10.1007/s13178-023-00812-4">We found that</a> in only 21 of the 62 cases did a federal court side side with the religious litigant. What’s more, courts ruled in favor of the litigants’ specific religion-based legal claim – as opposed to some other element of their argument – in only three cases. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/534456/original/file-20230627-21-vcxgx0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Three women in coats wave as they walk away from a huge building with tall pillars." src="https://images.theconversation.com/files/534456/original/file-20230627-21-vcxgx0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/534456/original/file-20230627-21-vcxgx0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/534456/original/file-20230627-21-vcxgx0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/534456/original/file-20230627-21-vcxgx0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/534456/original/file-20230627-21-vcxgx0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/534456/original/file-20230627-21-vcxgx0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/534456/original/file-20230627-21-vcxgx0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Lorie Smith, left, the owner of 303 Creative, prepares to speak outside the Supreme Court on Dec. 5, 2022.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/lorie-smith-a-christian-graphic-artist-and-website-designer-news-photo/1245399675?adppopup=true">Kent Nishimura / Los Angeles Times via Getty Images</a></span>
</figcaption>
</figure>
<p><a href="https://doi.org/10.1017/lsi.2023.5">In our analysis</a>, cases focused on wedding-related services, like 303 Creative, were the most likely to have justices side with the party bringing forth a religion-based claim, or to remand the case for further proceedings. In cases related to employment, housing, incarceration, education or physical and mental health care, on the other hand, <a href="https://www.oyez.org/cases/2019/18-107">federal courts were unlikely</a> to side with religion-based claims.</p>
<p>The relative success of wedding-related cases points to a broader trend we observed. Over time, fewer cases dealt with plaintiffs’ opposition to LGBTQ+ identity and more on LGBTQ+ relationships, specifically same-sex marriage.</p>
<p>Take <a href="https://casetext.com/case/ward-v-polite">Ward v. Polite</a>, a 2012 case where a graduate student in a master’s counseling program requested “that she be allowed to refer gay and lesbian clients seeking relationship advice to another counselor,” even though she, according to case documents, “had no problem counseling gay and lesbian clients.” The university believed that Ward’s refusal to counsel gay and lesbian clients in relationships violated its code of ethics and expelled her from the program.</p>
<p>She <a href="https://www.nytimes.com/2012/02/04/us/when-counseling-and-conviction-collide-beliefs.html">sued the university</a>, claiming it had violated her right to freely exercise her religion. The 6th U.S. Circuit Court of Appeals criticized the university for not having an exception clause to its nondiscrimination policy, which students like Ward could have used to request to transfer a client, and remanded the case for additional proceedings.</p>
<h2>Not always the ‘usual story’</h2>
<p>Our findings also revealed that federal court cases about faith and sexual orientation often affirm a stereotype that <a href="https://barnard.edu/profiles/janet-jakobsen">gender scholar</a> <a href="https://nyupress.org/9781479846085/the-sex-obsession/">Janet Jakobsen</a> calls the “usual story” about religion and LGBTQ+ rights: that the two are in tension with one another. </p>
<p>In other words, even when the court doesn’t side with litigants whose cases are related to their faith, most lawsuits about these topics give the impression that religious beliefs endorse heterosexuality over any alternative. The majority of cases brought over the past 30 years – 50 of the 62 in our sample – were indeed brought by people who say their religious beliefs <a href="https://doi.org/10.1017/lsi.2023.5">oppose LGBT identities or relationships</a>.</p>
<p>Still, there are examples of plaintiffs who <a href="https://doi.org/10.1093/socrel/srab062">use religion-based claims to advance LGBTQ+ rights</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/534457/original/file-20230627-20750-1o0jgs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man holding a rainbow-striped flag waves it in front of an ornate building with pillars." src="https://images.theconversation.com/files/534457/original/file-20230627-20750-1o0jgs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/534457/original/file-20230627-20750-1o0jgs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/534457/original/file-20230627-20750-1o0jgs.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/534457/original/file-20230627-20750-1o0jgs.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/534457/original/file-20230627-20750-1o0jgs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/534457/original/file-20230627-20750-1o0jgs.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/534457/original/file-20230627-20750-1o0jgs.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A supporter of same-sex marriage waves a pride flag in front of the U.S. Supreme Court to celebrate the eighth anniversary of the Obergefell v. Hodges decision.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/same-sex-marriage-supporter-vin-testa-of-washington-dc-news-photo/1502430450?adppopup=true">Anna Moneymaker/Getty Images</a></span>
</figcaption>
</figure>
<p>For instance, attorney Robin Joy Shahar <a href="https://www.casebriefs.com/blog/law/family-law/family-law-keyed-to-weisberg/alternative-families/shahar-v-bowers/">sued the attorney general of Georgia</a>, Michael Bowers, after he withdrew his job offer to her upon finding out that she married her partner, another woman, in a religious ceremony. The case, Shahar v. Bowers, was eventually decided in 1997, when <a href="https://www.washingtonpost.com/news/post-nation/wp/2018/02/15/he-was-convicted-of-a-sex-act-thats-no-longer-a-crime-years-later-hes-deemed-a-sex-offender/">sodomy laws were still on the books</a>, and long before U.S. states legally recognized same-sex marriages – a fact the court emphasized by putting quotation marks around every reference to Shahar’s marriage and wedding.</p>
<p>Shahar, who had held a Jewish wedding ceremony at her synagogue, argued that the attorney general had violated her right to freely exercise her religion, among other rights. But the U.S. Court of Appeals for the 11th Circuit sided with Bowers, reasoning that the interests of the government – in this case the attorney general’s office – outweighed Shahar’s individual rights. </p>
<p>Other litigants have integrated their religious beliefs or identity into federal court arguments, seeking to protect LGBTQ+ people and their rights. In our analysis, the court ruled against each of their religion-based claims.</p>
<h2>The road ahead</h2>
<p>Today, hours after the court’s decision was announced, it is too early to predict the consequences of the ruling. It’s worth noting, however, that the Supreme Court declined to consider <a href="https://www.law.cornell.edu/supct/cert/21-476">Smith’s claims that Colorado’s law violated the free exercise clause of the First Amendment</a>. In other words, they were willing to consider – and ultimately decided – that the law violated her right to create, or not create, content based on her religious beliefs. Yet they were not willing to consider whether the law impeded her ability to freely practice her faith.</p>
<p>In this way, the court did not overturn precedent related to other forms of religious freedom.</p>
<p>Still, as Justice Sonia Sotomayor noted <a href="https://www.supremecourt.gov/opinions/22pdf/21-476_c185.pdf">in her dissent</a> – joined by Justice Elena Kagan and Justice Ketanji Brown Jackson – this ruling leaves open the possibility that other religious business owners will claim their services are “expressive” acts of speech and thus refuse to serve LGBTQ+ people. </p>
<p>“Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class,” <a href="https://www.supremecourt.gov/opinions/22pdf/21-476_c185.pdf">Sotomayor wrote</a>. “The law in question targets conduct, not speech, for regulation, and the act of discrimination has never constituted protected expression under the First Amendment.”</p><img src="https://counter.theconversation.com/content/208349/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kelsy Burke receives funding from the National Science Foundation. </span></em></p><p class="fine-print"><em><span>Emily Kazyak receives funding from the National Science Foundation. </span></em></p>Two sociologists break down how cases related to plaintiffs’ beliefs and LGBTQ+ rights have fared in federal courts over several decades.Kelsy Burke, Associate Professor of Sociology, University of Nebraska-LincolnEmily Kazyak, Associate Professor of Sociology and Women's and Gender Studies, University of Nebraska-LincolnLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2070732023-07-01T00:03:38Z2023-07-01T00:03:38ZA business can decline service based on its beliefs, Supreme Court rules – but what will this look like in practice?<figure><img src="https://images.theconversation.com/files/535089/original/file-20230630-15-48437j.jpg?ixlib=rb-1.1.0&rect=9%2C15%2C2108%2C1393&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Designing for all couples -- or declining?</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/cyber-love-royalty-free-image/522854467?phrase=wedding+rings+computer&adppopup=true">DawidMarkiewicz/iStock via Getty Images Plus</a></span></figcaption></figure><p>At issue in one of this year’s most highly anticipated Supreme Court cases, <a href="https://www.supremecourt.gov/opinions/22pdf/21-476_c185.pdf">303 Creative v. Elenis</a>, was what happens when someone’s free speech or beliefs conflict with others’ rights. Specifically, 303 Creative addressed whether a Colorado anti-discrimination law can require a designer who believes marriage is only between a man and a woman to create a wedding website for a same-sex couple.</p>
<p>Two years ago, the 10th Circuit Court of Appeals <a href="https://casetext.com/case/303-creative-llc-v-elenis-3">affirmed that the answer was “yes</a>.”</p>
<p>But on June 30, 2023, a bitterly divided Supreme Court <a href="https://www.oyez.org/cases/2022/21-476">reversed that judgment</a>, holding 6-3 that <a href="https://constitution.congress.gov/constitution/amendment-1/">the free speech clause of the First Amendment</a> prohibited state officials from requiring the designer to create a website that communicates a message with which she disagrees.</p>
<p>As <a href="https://udayton.edu/directory/education/eda/russo_charles.php">a professor of law</a> who pays particular attention to First Amendment issues involving freedom of religion and speech, I see the case highlighting tension between two competing fundamental interests – ones that clash routinely in 21st century America.</p>
<h2>Compelled speech?</h2>
<p>The underlying dispute involves graphic artist Lorie Smith, the founder and owner of a studio called <a href="https://303creative.com/about/">303 Creative</a>. According to court documents, Smith will work with clients of any sexual orientation. However, she will not create content that goes against her religious beliefs, such as “that marriage is a union between one man and one woman.”</p>
<p>Conflict arose when Smith challenged <a href="https://ccrd.colorado.gov/ccrd-home/regulatory-information">Colorado’s Anti-Discrimination Act</a>, under which it is discriminatory and illegal to refuse services to someone based on “disability, race, creed, color, sex, sexual orientation, marital status, national origin or ancestry.” </p>
<p>In 2016, Smith unsuccessfully sued the members of <a href="https://www.denverpost.com/2016/09/21/colorado-lawsuit-says-law-promotes-same-sex-marriage/">the state’s Civil Rights Commission and Colorado’s attorney general</a>. She and her attorneys argued that creating a website counts as an act of speech, and so being required to prepare a same-sex wedding website would violate her First Amendment rights: The law would force her to speak, legally referred to as “compelled speech.”</p>
<p>Smith and her attorneys also claimed that requiring her to create a website would violate her First Amendment right to <a href="https://constitution.congress.gov/constitution/amendment-1/">the free exercise of religion</a>.</p>
<p>The <a href="https://casetext.com/case/303-creative-llc-v-elenis-1">federal trial court</a> in Colorado rejected Smith’s attempt to block enforcement of the anti-discrimination law in 2019. When she appealed, a split <a href="https://casetext.com/case/303-creative-llc-v-elenis-3">10th Circuit affirmed</a> that Smith could not refuse to create websites for same-sex weddings, even if it would have gone against her beliefs. Protecting diverse viewpoints, <a href="https://casetext.com/case/303-creative-llc-v-elenis-3">in the court’s opinion</a>, was a “good in and of itself,” but combating discrimination “is, like individual autonomy, ‘essential’ to our democratic ideals.” </p>
<p>In <a href="https://cases.justia.com/federal/appellate-courts/ca10/19-1413/19-1413-2021-07-26.pdf?ts=1627336853">a lengthy dissent</a>, the chief judge of the 10th Circuit focused on compelled speech. He criticized the panel for taking “the remarkable – and novel – stance that the government may force Ms. Smith to produce messages that violate her conscience.”</p>
<h2>SCOTUS speaks</h2>
<p>The Supreme Court agreed to hear Smith’s case but limited the issue to free speech, sidestepping the dispute over the free exercise of religion. The <a href="https://www.supremecourt.gov/docket/docketfiles/html/qp/21-00476qp.pdf">question before the court</a> was “whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.”</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/535090/original/file-20230630-37825-y2xpsk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A small crowd of people in coats walk cheerfully down the steps of a building with large pillars." src="https://images.theconversation.com/files/535090/original/file-20230630-37825-y2xpsk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/535090/original/file-20230630-37825-y2xpsk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/535090/original/file-20230630-37825-y2xpsk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/535090/original/file-20230630-37825-y2xpsk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/535090/original/file-20230630-37825-y2xpsk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/535090/original/file-20230630-37825-y2xpsk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/535090/original/file-20230630-37825-y2xpsk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Lorie Smith, center in pink, walks out of the Supreme Court on Dec. 5, 2022, after the high court heard oral arguments in her case.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/lorie-smith-a-christian-graphic-artist-and-website-designer-news-photo/1245399590?adppopup=true">Kent Nishimura/Los Angeles Times via Getty Images</a></span>
</figcaption>
</figure>
<p>Writing for the majority, Justice Neil Gorsuch noted that “First Amendment protections belong to all, not just to speakers whose motives the government finds worthy.” </p>
<p>Gorsuch reviewed the Supreme Court’s cases protecting the rights of individuals not to express themselves. In 1943’s <a href="https://www.law.cornell.edu/supremecourt/text/319/624">West Virginia Board of Education v. Barnette</a>, for example, the court declared that public officials could not compel students who were Jehovah’s Witnesses to salute the flag, because doing so violated their religious beliefs.</p>
<p>While noting the “vital role public accommodations laws play in realizing the civil rights of all Americans,” <a href="https://www.supremecourt.gov/opinions/22pdf/21-476_c185.pdf">Gorsuch reasoned</a> that Colorado could not “force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.” </p>
<p>Further, Gorsuch harshly criticized the dissenting justices’ argument that Colorado’s law focused on business owners’ conduct, not speech, contending that the dissent sidesteps a key question: whether a state can “force someone who provides her own expressive services to abandon her conscience and speak its preferred message instead?”</p>
<p>Justice Sonia Sotomayor, <a href="https://www.supremecourt.gov/opinions/22pdf/21-476_c185.pdf">whose dissent was joined by Justice Elena Kagan and Justice Ketanji Brown Jackson</a>, lamented the majority’s decision as a time when there is “backlash to the movement for liberty and equality for gender and sexual minorities.” </p>
<p>Sotomayor then argued that under Colorado’s anti-discrimination law, Smith’s “freedom of speech <a href="https://www.supremecourt.gov/opinions/22pdf/21-476_c185.pdf">is not abridged</a> in any meaningful sense, factual or legal.” If Smith wants to “advocate the idea that same-sex marriage betrays God’s laws,” Sotomayor made it clear that she can. </p>
<p>Sotomayor went on to decry the ruling for symbolically “mark(ing) gays and lesbians for second-class status.” Denying services to same-sex couples “reminds LGBT people of a painful feeling that they know all too well,” she wrote. “There are some public places where they can be themselves, and some where they cannot.”</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/535091/original/file-20230630-41655-70lubj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Half a dozen somber-looking people stand at the front of a room during a press conference." src="https://images.theconversation.com/files/535091/original/file-20230630-41655-70lubj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/535091/original/file-20230630-41655-70lubj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/535091/original/file-20230630-41655-70lubj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/535091/original/file-20230630-41655-70lubj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/535091/original/file-20230630-41655-70lubj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/535091/original/file-20230630-41655-70lubj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/535091/original/file-20230630-41655-70lubj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Religious leaders and Colorado Attorney General Phil Weiser hold a press conference in Denver following the Supreme Court’s decision in 303 Creative LLC v. Elenis.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/kurt-kaufman-ministerial-associate-at-first-baptist-church-news-photo/1373397545?adppopup=true">Hyoung Chang/The Denver Post via Getty Images</a></span>
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</figure>
<h2>Questions ahead</h2>
<p>To see how 303 Creative’s impact plays out, it is worth closely watching the parts of the U.S. with anti-discrimination statutes in place. As Justice Gorsuch noted, about half of all states have laws like Colorado’s that “<a href="https://www.supremecourt.gov/opinions/22pdf/21-476_c185.pdf">expressly prohibit discrimination</a> based on sexual orientation.” More specifically, <a href="https://www.lgbtmap.org/equality-maps/non_discrimination_laws/public-accommodations">22 states, plus the Virgin Islands and Washington, D.C.</a>, offer various forms of protections for LGBTQ+ individuals – including retail stories, restaurants, parks, hotels, doctors’ offices and banks.</p>
<p>I believe 303 Creative presents a challenge for society to come to grips with the tension between two fundamental interests.</p>
<p>One is the Supreme Court’s affirmation of Smith’s key argument: that requiring her to prepare websites that go against her religious beliefs would violate her First Amendment right to freedom of speech.</p>
<p>The other is the interest of same-sex couples in hiring the services they wish – and simply to be treated equally in the eyes of the law, on par with any other potential customers.</p>
<p>Ensuring both freedom of speech and civil rights requires good-faith efforts at respect – and respect is a two-way street. However, exactly what this looks like will likely be the cause of more litigation to come.</p><img src="https://counter.theconversation.com/content/207073/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Charles J. Russo does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A designer opposed to same-sex marriage argued that a Colorado anti-discrimination law would effectively force her to speak against her beliefs.Charles J. Russo, Joseph Panzer Chair in Education in the School of Education and Health Sciences and Research Professor of Law, University of DaytonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2062752023-06-20T22:16:49Z2023-06-20T22:16:49ZCourt decision in youth climate lawsuit against Ontario government ignites hope<p>In the midst of <a href="https://theconversation.com/as-we-fight-the-alberta-and-b-c-wildfires-we-must-also-plan-for-future-disasters-205818">unprecedented spring wildfires</a> and anticipation of more record-breaking summer heatwaves, climate litigation is on the rise in Canada.</p>
<p>Courts are being asked to determine whether governments are doing enough to safeguard the health and lives of Canadians experiencing the impacts of the climate crisis. </p>
<p>A group of seven youth sued Ontario Premier Doug Ford’s government in November 2019 for replacing the province’s previous greenhouse gas (GHG) emissions reduction target with a significantly weaker and unscientific one. The <em>Mathur v Ontario</em> case made history early this spring when <a href="https://www.canlii.org/en/on/onsc/doc/2023/2023onsc2316/2023onsc2316.pdf">a judge ruled — for the first time in Canada —</a> that courts can consider whether a government’s response to climate change infringes upon human rights. </p>
<p>Clearing this hurdle was a significant victory for these <a href="https://ecojustice.ca/news/7-ontario-youths-sue-ford-govt-for-weakening-2030-climate-target/">young Canadians</a>. <a href="https://www.ourchildrenstrust.org/canada#:%7E:text=">Three previous attempts by youth</a> and <a href="https://www.canlii.org/en/ca/fct/doc/2020/2020fc1059/2020fc1059.pdf">Indigenous groups</a> to invoke the <a href="https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/">Canadian Charter of Rights and Freedoms</a> for climate harms were struck down before ever getting to trial. </p>
<p>Courts around the world are increasingly holding governments accountable for violating their citizens’ human rights by <a href="https://www.lse.ac.uk/granthaminstitute/publication/global-trends-in-climate-change-litigation-2022/">not doing enough on climate change</a>. Last week, youth litigants in Montana were <a href="https://www.cbc.ca/news/climate/canada-climate-litigation-montana-1.6879410">testifying in the first climate lawsuit</a> in the United States to reach trial.</p>
<h2>Ontario’s severely deficient climate target</h2>
<p>Although the Ontario Superior Court of Justice did not ultimately find any breaches of Charter rights, the <a href="https://www.canlii.org/en/on/onsc/doc/2023/2023onsc2316/2023onsc2316.pdf"><em>Mathur v Ontario</em> decision </a> is groundbreaking in many ways, leaving the youth claimants <a href="https://ecojustice.ca/news/seven-youth-continue-legal-fight-to-hold-ontario-government-accountable-for-climate-action/">optimistic about a successful appeal</a>.</p>
<p>In addition to being the first Canadian case of this kind to proceed to a full hearing, the court was unequivocal that Ontario’s climate target falls “severely short” of what <a href="https://www.ipcc.ch/">the scientific consensus says is necessary to avoid catastrophic climate change</a> — GHG reductions of 45 per cent below 2010 levels by 2030 and net zero by 2050. </p>
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<p>Justice Marie-Andrée Vermette held that Ontario’s target increases the risk of death and of the physical and mental harms faced by all Ontarians. She also held that these harms will be inflicted disproportionately on children, youth and Indigenous Peoples. To remedy this large gap, she stated, Ontario would have to increase its current target by a whopping 73 per cent.</p>
<p>Following in the footsteps of the <a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/18781/index.do">Supreme Court of Canada</a> and courts around the world, Vermette recognized climate change as a global problem that requires collective action, both internationally and domestically, meaning every country, province and territory has to do its part. </p>
<p>Relying on arguments and expert evidence rooted in climate change denialism, Ontario tried to shield itself from responsibility by pointing to the province’s relatively small contributions to global emissions. </p>
<p>Vermette rejected this line of reasoning and Ontario’s bid for a free pass, which would put the planet on a fast-track to catastrophe if adopted by all jurisdictions. Every single GHG emission — including those from Ontario — <a href="https://climate.nasa.gov/scientific-consensus/">contributes to climate change and the risks it poses to society</a>.</p>
<h2>How does law apply to climate change?</h2>
<p>Despite these significant findings, the court held Ontario’s weak climate target did not violate the right to life, security of the person or equality under <a href="https://laws-lois.justice.gc.ca/eng/const/page-12.html">Sections 7 and 15 of the Charter</a>. </p>
<figure class="align-center ">
<img alt="A climate protest" src="https://images.theconversation.com/files/532787/original/file-20230619-21623-z2tzsp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/532787/original/file-20230619-21623-z2tzsp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/532787/original/file-20230619-21623-z2tzsp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/532787/original/file-20230619-21623-z2tzsp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/532787/original/file-20230619-21623-z2tzsp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/532787/original/file-20230619-21623-z2tzsp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/532787/original/file-20230619-21623-z2tzsp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The Court held that while Ontario’s climate target fell severely short of what the scientific consensus says is necessary to avoid catastrophic climate change, it did not violate the right to life, security of the person or equality.</span>
<span class="attribution"><span class="source">(Shutterstock)</span></span>
</figcaption>
</figure>
<p>The dismissal turned on complex aspects of constitutional law, including unsettled questions about whether the Charter imposes obligations on governments to take positive steps to ensure everyone enjoys the rights to life, liberty and security of the person enshrined in Section 7. </p>
<p>Although such freestanding positive obligations have never been recognized by Canadian courts, the <a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2027/index.do">Supreme Court of Canada held,</a> two decades ago, that this might one day occur in “special circumstances.” </p>
<p>Vermette is the first Canadian judge to note that the existential threat of climate change likely meets this threshold and could justify ordering the government to do more. However, she declined to fully decide the issue, citing the lack of a defined legal test for adjudicating “positive rights” arguments. She stated that the existing law needs to be adapted in novel cases such as this. </p>
<p><a href="https://ecojustice.ca/news/seven-youth-continue-legal-fight-to-hold-ontario-government-accountable-for-climate-action/">On appeal</a>, the Ontario Court of Appeal will have the opportunity to consider <a href="https://lawreview.vermontlaw.edu/wp-content/uploads/2018/05/04-Chalifour.pdf">updating the way Charter rights are interpreted and applied</a> amid a threat that an <a href="https://static1.squarespace.com/static/571d109b04426270152febe0/t/5e22101b7a850a06acdff1bc/1579290663460/2020.01.17+JULIANA+OPINION.pdf">American judge described as akin to an asteroid barrelling towards Earth</a>. </p>
<h2>Youth and climate change</h2>
<p>We acted as co-counsel representing <a href="https://foecanada.org/about/">Friends of the Earth Canada</a> as an intervener in <em>Mathur v Ontario</em>. Friends of the Earth Canada, a non-profit organization that takes action to confront polluters and hold governments accountable for their environmental promises, will seek to intervene in the appeal to argue that there is an ecological <a href="https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=3740&context=scholarly_works">constitutional bottom line</a> that must be respected by governments. </p>
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<p>Even though Canada’s Charter is silent about the need to protect the Earth’s critical life-support systems — clean air, water and a stable climate — <a href="https://journals.lib.unb.ca/index.php/unblj/article/view/30538">the rights to life, equality and security of the person will be meaningless on a dying planet</a> and therefore must be interpreted with reference to ecological sustainability. </p>
<p>If permitted to intervene, Friends of the Earth will also provide input about how the <a href="https://jps.library.utoronto.ca/index.php/utjle/article/view/33797/27780">Charter’s equality guarantee applies in the context of climate change</a>. </p>
<p>Vermette acknowledged that youth will be disproportionately impacted. But she held that climate change — not Ontario’s target — is causing the harm. </p>
<p>This is at odds with her reasoning that every GHG emission counts towards increasing the risk of harm to life and security of the person. It also implies that no domestic climate target could ever be discriminatory, since there will always be multiple emitters. </p>
<p>Other courts around the world have highlighted the problem of delaying action, which requires youth and future generations to make faster, more radical emissions reductions down the road. </p>
<p>Germany’s highest constitutional court, for example, recently held that it was <a href="http://climatecasechart.com/wp-content/uploads/sites/16/non-us-case-documents/2021/20210324_11817_order-1.pdf">unconstitutional for the government to make decisions today that lock in future harms and place a disproportionate burden on future generations</a>. </p>
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<p>The Ontario Court of Appeal will have an opportunity in <em>Mathur v Ontario</em> to reconsider how equality rights apply in the context of climate change, where the risks and harms will fall disproportionately on the shoulders of our children and grandchildren.</p>
<h2>A ray of hope</h2>
<p>Youth climate litigants will continue using all avenues — including courts — to pressure governments to address the grave, unprecedented and irreversible threats climate change poses to people now and in the future. </p>
<p>As <a href="https://www.theglobeandmail.com/politics/article-canada-wildfires-2023-data-forecast/">smoky air blankets much of Canada</a> and offers a mere glimpse of what lies in store as global temperatures continue to rise, there is hope that in cases like <em>Mathur v Ontario</em>, the courts will refuse to be silent bystanders while the climate crisis erodes the ecological foundations of life on this planet.</p><img src="https://counter.theconversation.com/content/206275/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Nathalie Chalifour receives funding from the Social Sciences and Humanities Research Council. She was co-counsel representing Friends of the Earth Canada as an intervener in Mathur v Ontario.</span></em></p><p class="fine-print"><em><span>Erin Dobbelsteyn's research is supported by funding from the University of Ottawa and the Ontario Graduate Scholarship. She was co-counsel representing Friends of the Earth Canada as an intervener in Mathur v Ontario.</span></em></p><p class="fine-print"><em><span>Lynda Collins is affiliated with Ecojustice Canada and the University of Ottawa. Along with Nathalie Chalifour and Erin Dobbelsteyn, she is co-counsel for Friends of the Earth in several youth-led climate lawsuits including Mathur v Ontario. </span></em></p>Canadian courts are increasingly holding governments accountable for violating their citizens’ human rights by not doing enough on climate change.Nathalie Chalifour, Full Professor, Faculty of Law, L’Université d’Ottawa/University of OttawaErin Dobbelsteyn, PhD Student in Environmental Law, L’Université d’Ottawa/University of OttawaLynda Collins, Full Professor, L’Université d’Ottawa/University of OttawaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2042762023-06-19T02:38:10Z2023-06-19T02:38:10ZWhere was the Sun? Here’s why astronomers are more useful in court cases than you’d think<figure><img src="https://images.theconversation.com/files/532540/original/file-20230619-6257-v67z8o.jpg?ixlib=rb-1.1.0&rect=0%2C860%2C3019%2C2091&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://unsplash.com/photos/ZwW1ouTbv6U">Obed Hernández/Unsplash</a></span></figcaption></figure><p>Over the past eight years, I have been asked to submit astronomical evidence for court cases all over Australia.</p>
<p>Normally when we think of evidence in court, we think of eyewitnesses, <a href="https://theconversation.com/dna-is-often-used-in-solving-crimes-but-how-does-dna-profiling-actually-work-191937">DNA</a> or police reports. Often, this evidence requires an expert to explain it – to be able to communicate the findings and data to the members of the court to make an informed decision. These experts are typically in medicine, engineering, psychology, or other fields.</p>
<p>Expert astronomers usually are not what one pictures in court, but that is exactly what I do.</p>
<p>The first time I was asked by police to do it came as a bit of a surprise. I had never thought about applying astronomy to the courtroom. Once the first group knew I can do it, more and more requests came in, from colleagues in the same police force or division, or investigators having seen my evidence elsewhere.</p>
<p>Now, I’m asked to submit evidence for roughly 1–2 cases per week. Usually this requires submitting a <a href="https://www.cornwalls.com.au/your-words-have-power-expert-evidence-and-witness-statements/">statement of evidence</a> to the court. But sometimes I am asked to attend court and explain what the evidence means.</p>
<p>When I’m needed as an expert in court, it tends to be for matters of consequence. My evidence is either critical to a part of the case, or the case itself is fairly major and all the details are being checked and verified.</p>
<p>But what exactly am I providing evidence for?</p>
<h2>Tracking the Sun and the Moon</h2>
<p>Most court evidence from an astronomer involves calculating the positions and lighting from an astronomical body – the Sun or Moon. Luckily, the <a href="https://gml.noaa.gov/grad/solcalc/azel.html">tools we use</a> to calculate the positions of celestial bodies are very accurate, and can be calculated hundreds to thousands of years into the past or future.</p>
<p>An obvious example is when someone claims the Sun was in their eyes, causing a glare, and they get into a car accident. Someone needs to say where the Sun was, its position, and how it aligned with the street and direction of travel. At certain times and in certain directions, the Sun may indeed hinder someone’s vision.</p>
<p>There is also the situation where someone sees something, but it happened around sunrise or sunset. An expert is needed to say what the lighting level was – as there are very clear definitions based on the Sun’s position below the horizon, and how much you can see. For instance, what if the event occurred five minutes after sunset? The light level depends on the time of year, the location and other factors. It is not a clear-cut case of daytime versus nighttime.</p>
<p>The Moon can feature in court evidence as well. Especially in dark locations away from city lights, an astronomer can provide evidence on how much light the Moon provided on a given night.</p>
<p>There are also historical cases or times when people note the view or phase of the Moon as a way of defining when something happened. The full Moon has a precise definition, but the day before or after may appear to look like a full Moon, despite it not technically being full.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/532543/original/file-20230619-15-4m89at.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A photo of a gibbous moon on a black background" src="https://images.theconversation.com/files/532543/original/file-20230619-15-4m89at.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/532543/original/file-20230619-15-4m89at.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=337&fit=crop&dpr=1 600w, https://images.theconversation.com/files/532543/original/file-20230619-15-4m89at.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=337&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/532543/original/file-20230619-15-4m89at.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=337&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/532543/original/file-20230619-15-4m89at.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/532543/original/file-20230619-15-4m89at.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/532543/original/file-20230619-15-4m89at.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=424&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Gibbous, full, waning? Astronomers can define the phases of the Moon with greater precision, which can be useful in a court case.</span>
<span class="attribution"><a class="source" href="https://unsplash.com/photos/b_pRpgLvcF8">Patrick Ilao/Unsplash</a></span>
</figcaption>
</figure>
<h2>The limitations of expertise</h2>
<p>Of course, like any part of science, there are limits to what I can say. If someone was looking through a window – how refractive was the window? Were there clouds blocking the Moon or Sun? It is up to other experts, and other parts of the legal system to sort out these factors.</p>
<p>Just like many fields, space technology is changing, and so too is its impact on law and crime. Satellites are being used more and more in cases to help track things as they happen. For example, <a href="https://www.maxar.com/">the space technology company Maxar</a> operates some of the highest-resolution commercial satellites to image Earth. For a small cost, people can task these satellites to look at certain areas and/or times. </p>
<p>Lately, we have seen the impact of satellites on Russia’s war in Ukraine, and how they have been instrumental in looking at troop movements, and even evidence of some of the alleged war crimes.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/ukraine-war-offensive-use-of-satellite-tech-a-sign-of-how-conflict-is-increasingly-moving-into-space-207641">Ukraine war: offensive use of satellite tech a sign of how conflict is increasingly moving into space</a>
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<hr>
<p>Satellite images have been used for a range of criminal investigations, such as <a href="https://blog.maxar.com/earth-intelligence/2018/the-power-of-a-human-network-reflecting-on-500-geohive-campaigns">people smuggling</a> or <a href="https://blog.maxar.com/earth-intelligence/2022/combating-illegal-gold-mining-in-the-amazon-rainforest-with-maxars-high-resolution-satellite-imagery">illegal mines</a>.</p>
<p>They are also being used in Australia for criminal matters. This is yet another situation where an expert is needed to explain the satellite imagery and what it may mean, or even help access it altogether.</p>
<h2>Experts are vital</h2>
<p>Working as an expert witness has given me hope, because I see the extent to which the justice system will sometimes go to get all the details right – like taking into account the phase of the Moon or the position of the Sun. It is also the perfect example of the importance of experts in our society.</p>
<p>In science, we are actively encouraging people to go to sources of accurate and trustworthy information, especially in an era of rife misinformation.</p>
<p>Through experts, fields like space and astronomy can impact people’s lives directly – even in the court room.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/servant-or-partner-the-role-of-expertise-and-knowledge-in-democracy-92026">Servant or partner? The role of expertise and knowledge in democracy</a>
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<img src="https://counter.theconversation.com/content/204276/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Brad E Tucker does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Among the expert witnesses in our justice system, astronomers play a surprising role. This astronomer provides evidence to several cases per week.Brad E Tucker, Astrophysicist, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2058172023-06-02T12:42:09Z2023-06-02T12:42:09ZJudging the judges: Scandals have the potential to affect the legitimacy of judges – and possibly the federal judiciary, too<figure><img src="https://images.theconversation.com/files/529426/original/file-20230531-27-2u13q6.jpeg?ixlib=rb-1.1.0&rect=37%2C22%2C4955%2C3300&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Activists call for ethics reform in the Supreme Court at the U.S. Capitol in Washington on May 2, 2023.
</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SenateSupremeCourtEthics/0005629d70854888a56e772d5c3fb50b/photo?Query=Clarence%20Thomas&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=909&currentItemNo=2">AP Photo/J. Scott Applewhite</a></span></figcaption></figure><p>U.S. Supreme Court Justice Clarence Thomas is no stranger to controversy. </p>
<p>In 1991, during his confirmation hearings in the Senate, Thomas faced <a href="https://www.nytimes.com/1991/10/12/us/the-thomas-nomination-excerpts-from-senate-s-hearings-on-the-thomas-nomination.html">accusations of sexual harassment</a> from a former colleague and law school professor, Anita Hill. </p>
<p>More recently, Thomas’ personal relationship with a real estate billionaire, Republican donor Harlan Crow, has come under scrutiny. Crow paid for <a href="https://www.propublica.org/article/clarence-thomas-scotus-undisclosed-luxury-travel-gifts-crow">lavish vacations</a> for Thomas and his wife. Thomas and Crow had undisclosed <a href="https://www.propublica.org/article/clarence-thomas-harlan-crow-real-estate-scotus">real estate deals</a>. Crow also made <a href="https://www.propublica.org/article/clarence-thomas-harlan-crow-private-school-tuition-scotus">tuition payments for Thomas’ grandnephew</a>.</p>
<p>Nearly all of these gifts and financial dealings <a href="https://www.nytimes.com/2023/03/29/us/politics/supreme-court-trips-gifts-disclosures.html">were absent from Thomas’ required financial disclosure forms</a>. While there is uncertainty on the specific reporting requirements for the vacations and real estate deals, it seems likely that the tuition payments received on behalf of Thomas’ family would be subject to disclosure requirements as financial gifts. </p>
<p>These recent discoveries have prompted backlash, ranging from calls for <a href="https://www.washingtonpost.com/opinions/2023/04/26/supreme-court-ethics-reform-clarence-thomas/">ethics reform</a> to <a href="https://www.reuters.com/world/us/democratic-lawmaker-ocasio-cortez-wants-us-supreme-court-justice-thomas-2023-04-09/">demands for impeachment</a>. </p>
<p>But scandal and controversy are not new to the federal courts. As political science professors, we study how scandals and other phenomena <a href="https://doi.org/10.1017/S104909652200138X">affect public support for the Supreme Court</a>. Prior research finds that when citizens perceive the courts as legitimate, citizens are less willing to challenge judicial decisions – even those that <a href="https://doi.org/10.1177/106591290505800201">individuals disagree with</a>.</p>
<p>Ultimately, scandal has a strong potential to undermine public perceptions. And as legitimacy diminishes, judges are likely to face increased public scrutiny for their policy decisions.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/529427/original/file-20230531-25-lpzyyz.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="An older man with glasses and gray hair in a black judicial robe." src="https://images.theconversation.com/files/529427/original/file-20230531-25-lpzyyz.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/529427/original/file-20230531-25-lpzyyz.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=403&fit=crop&dpr=1 600w, https://images.theconversation.com/files/529427/original/file-20230531-25-lpzyyz.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=403&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/529427/original/file-20230531-25-lpzyyz.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=403&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/529427/original/file-20230531-25-lpzyyz.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=506&fit=crop&dpr=1 754w, https://images.theconversation.com/files/529427/original/file-20230531-25-lpzyyz.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=506&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/529427/original/file-20230531-25-lpzyyz.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=506&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Supreme Court Justice Clarence Thomas has been the focus of numerous recent revelations about his entanglements with a prominent and wealthy Republican donor.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/associate-us-supreme-court-justice-clarence-thomas-poses-news-photo/1243792284?adppopup=true">Olivier Douliery/AFP via Getty Images</a></span>
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</figure>
<h2>Judicial scandals different from political scandals</h2>
<p>Beyond Thomas, other Supreme Court justices and <a href="https://www.newsweek.com/ethics-scandals-supreme-court-justice-spouses-1797768">their close family members</a> have recently faced allegations of wrongdoing. </p>
<p>These range from <a href="https://www.nytimes.com/2018/09/27/us/politics/brett-kavanaugh-confirmation-hearings.html">Justice Brett Kavanaugh’s alleged sexual assault</a> to <a href="https://www.politico.com/news/2023/04/25/neil-gorsuch-colorado-property-sale-00093579">a controversial real estate sale</a> involving Justice Neil Gorsuch.</p>
<p>Recent history is replete with instances of judicial nominees and federal judges immersed in scandal and controversy – from <a href="https://www.nytimes.com/2010/12/09/us/politics/09judge.html">taking bribes</a> to <a href="https://www.justice.gov/usao-mn/pr/former-united-states-tax-court-judge-and-husband-sentenced-multi-year-tax-fraud">tax fraud</a>, from <a href="https://www.ajc.com/news/local/judge-camp-sentenced-days-prison/FQhgyRbi1JD1oK28fQRGoJ/">using illicit drugs with an exotic dancer</a> to <a href="https://www.washingtonpost.com/world/national-security/prominent-appeals-court-judge-alex-kozinski-accused-of-sexual-misconduct/2017/12/08/1763e2b8-d913-11e7-a841-2066faf731ef_story.html">making court clerks watch obscene material</a>. </p>
<p>These behaviors would be a problem in any government institution. Yet, unlike democratically elected officials, all <a href="https://www.uscourts.gov/judges-judgeships/about-federal-judges">U.S. Supreme Court justices and judges on the lower federal courts</a> are unelected and insulated from direct electoral repercussions. Presidents nominate Supreme Court justices and federal court judges when a vacancy emerges. Once confirmed by a majority in the Senate, these individuals cannot be removed from the bench unless they are impeached by the House of Representatives and removed by a two-thirds majority vote in the Senate.</p>
<p>Such institutional dynamics provide broad protections for federal judges, including those embroiled in scandal and controversy. Beyond the threat of impeachment and removal, no other recourse is available to sanction judges for improprieties or ethical controversies. </p>
<p>In fact, Congress has moved to impeach lower court federal judges in <a href="https://www.nytimes.com/2010/12/09/us/politics/09judge.html">only the most extreme circumstances</a>. To date, no Supreme Court justice has been impeached and removed from office, although Samuel Chase was impeached in 1801 but ultimately acquitted in the Senate.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/529430/original/file-20230531-29-56uz5r.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A middle-aged man from an earlier century dressed in a black robe and with long gray hair." src="https://images.theconversation.com/files/529430/original/file-20230531-29-56uz5r.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/529430/original/file-20230531-29-56uz5r.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=746&fit=crop&dpr=1 600w, https://images.theconversation.com/files/529430/original/file-20230531-29-56uz5r.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=746&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/529430/original/file-20230531-29-56uz5r.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=746&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/529430/original/file-20230531-29-56uz5r.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=937&fit=crop&dpr=1 754w, https://images.theconversation.com/files/529430/original/file-20230531-29-56uz5r.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=937&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/529430/original/file-20230531-29-56uz5r.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=937&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">No Supreme Court justice has been impeached and removed from office, although Samuel Chase, pictured here, was impeached in 1801 but ultimately acquitted in the Senate.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/engraved-portrait-of-american-jurist-delegate-to-the-news-photo/52909829?adppopup=true">Stock Montage/Getty Images</a></span>
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<h2>Public opinion and federal court legitimacy</h2>
<p>Given this reality, scholars, pollsters and commentators focus their attention on how the public may punish judges and the courts through another means: judgments of their legitimacy.</p>
<p>Since the courts are unable to enforce their rulings – they do not have a police force or a military at their disposal – they must rely on public support to ensure broad compliance and implementation of their decisions. </p>
<p>When citizens perceive that federal courts exercise power legitimately, they are unlikely to challenge decisions they disagree with or the judges who made them. The Supreme Court historically has a <a href="https://doi.org/10.1146/annurev-lawsocsci-110413-030546">deep reservoir of goodwill</a> among the public. Scholarly evidence suggests that the Supreme Court uniquely benefits from what’s called a <a href="https://doi.org/10.1111/j.1540-5907.2008.00362.x">positivity bias</a>, which means that people tend to perceive it more positively compared to Congress and the president. </p>
<p>Yet the federal judiciary faces threats to its legitimacy across all levels, from the Supreme Court to district courts. These include political polarization, which can lead the public to see courts as blatantly partisan institutions. Political science research demonstrates that support for the Supreme Court varies depending on the <a href="https://doi.org/10.1111/ajps.12150">partisan viewpoint of survey respondents</a>. Studies also suggest that the public views the Supreme Court <a href="https://doi.org/10.1177/10659129211006196">less favorably</a> when the court is perceived as politically distant from one’s own partisan preferences. Researchers also find that perceptions that the court favors liberal policies result in <a href="https://doi.org/10.1177/1065912920950482">lower job approval ratings</a>.</p>
<p>What researchers have less insight on is whether the public alters its support for the judiciary in light of scandal. The potentially corrosive implications of scandal have been thrust into the limelight with the recent revelations of impropriety concerning several Supreme Court justices.</p>
<h2>Punishment for scandals</h2>
<p>Scandal holds the potential to shake the confidence and trust the American public has in its judicial institutions. <a href="https://www.cambridge.org/core/journals/ps-political-science-and-politics/article/your-honors-misdeeds-the-consequences-of-judicial-scandal-on-specific-and-diffuse-support/5CDA6C8310E01A1E1FFCF66A60C05ADD">Our research</a>, which predates the recent media reports on Thomas, looks at whether scandals meaningfully diminish citizen support for members of the judiciary, and the court as an institution. </p>
<p>Relying on multiple survey experiments, we examined the effect of varying scandals – ethical, financial and sexual – among hypothetical Supreme Court nominees and hypothetical sitting lower court judges. </p>
<p>In both cases and across scandal types, we found that the public punishes individual nominees and judges through diminished support. That is, respondents provided lower levels of job approval for a hypothetical judge who faced accusations of scandal compared to a judge who faced no such accusation. Notably, however, scandals did not harm the public’s perceptions of the federal courts’ legitimacy. </p>
<p>In other words, we found no effect of hypothetical scandal on respondents’ beliefs that courts are generally fair and should retain the right to make controversial decisions, even when a majority disagrees. This suggests that while the public holds judges associated with scandal in low regard, the negative effects of individual scandals do not permeate the institution of the courts. </p>
<p>We cannot say whether the harmful effects of scandal persist over time. Perhaps, negative impressions of individuals immersed in scandal will dissipate. Additional research is needed to examine whether a spate of scandals – involving multiple judges, with greater degrees of perceived severity – would result in a critical mass that undermines the foundations of public support for the courts as esteemed institutions. </p>
<p>Yet so far, our findings suggest that the latest round of scandals and controversies surrounding justices’ personal behavior will have minimal effect on eroding public support for federal courts.</p><img src="https://counter.theconversation.com/content/205817/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ali S. Masood receives funding from the National Science Foundation.</span></em></p><p class="fine-print"><em><span>Joshua Boston received funding for this research from the Bowling Green State University Office of Sponsored Programs and Research and Department of Political Science. </span></em></p><p class="fine-print"><em><span>Benjamin J. Kassow and David Miller do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Courts have no army or police force to enforce their decisions. Their power rests on their legitimacy in the public eye. How does scandal affect that?Ali S. Masood, Assistant Professor of Politics, Oberlin College and ConservatoryBenjamin J. Kassow, Associate Professor of Political Science and Public Administration, University of North DakotaDavid Miller, Assistant Professor of Political Science, East Tennessee State UniversityJoshua Boston, Assistant Professor of Political Science, Bowling Green State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1982772023-02-07T13:34:35Z2023-02-07T13:34:35ZMexico made criminal justice reforms in 2008 – they haven’t done much to reduce crime<figure><img src="https://images.theconversation.com/files/508503/original/file-20230206-19-85s1yi.jpg?ixlib=rb-1.1.0&rect=134%2C206%2C5838%2C3763&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Mexican soldiers stand guard near during the arrest of Joaquin Ovidio Guzman in Culiacan, Mexico, in January 2023.</span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1246022600/photo/topshot-mexico-drugs-violence-guzman-arrest.jpg?s=1024x1024&w=gi&k=20&c=VuwfDMIAXP0eeKfKdmH1zgboCcJwmwCKFNXWDaNdbvU=">Juan Carlos Cruz/AFP via Getty Images</a></span></figcaption></figure><p><a href="https://theconversation.com/mexico-hizo-reformas-al-sistema-de-justicia-penal-en-2008-aunque-no-han-hecho-mucho-para-reducir-la-delincuencia-201657">Leer en español.</a></p>
<p>Mexico has waged a long, bloody battle on drugs and crime for decades. But violence there <a href="https://www.asisonline.org/security-management-magazine/latest-news/today-in-security/2022/september/Extreme-Violence-in-Mexico-Continues-to-Increase/">continues to soar</a>.</p>
<p>In one of the latest high-profile incidents, Mexican law enforcement arrested <a href="https://www.bbc.com/news/world-latin-america-64179356">Ovidio Guzmán-López</a>, a leader of the powerful Sinaloa drug cartel and the son of imprisoned drug lord Joaquín “El Chapo” Guzmán, in early January 2023. The arrest <a href="https://www.reuters.com/world/americas/we-threw-ourselves-floor-mexican-passenger-plane-caught-cartel-crossfire-2023-01-06/">sparked a wave</a> of violence in Culiacan in northwest Mexico, resulting in looting, shootouts and <a href="https://www.theguardian.com/world/2023/jan/06/terror-cartel-violence-engulfs-mexican-city-el-chapo-son">29 people killed</a>.</p>
<p>The ongoing violence in parts of Mexico is largely associated with drug trafficking organizations like Sinaloa, street gangs and <a href="https://www.scielo.cl/scielo.php?pid=S0719-37692015000200006&script=sci_arttext">self-defense forces</a> regular citizens have formed to protect themselves from crime because of ineffective police and military deterrents. </p>
<p>I am <a href="https://sc.edu/uofsc/posts/2022/04/breakthrough_star_rebecca_janzen.php">a scholar of Mexican</a> culture and literature. <a href="https://www.vanderbiltuniversitypress.com/9780826504449/unlawful-violence/">I have written about</a> how the Mexican government <a href="https://www.ojp.gov/ncjrs/virtual-library/abstracts/judicial-reform-mexico-toward-new-criminal-justice-system">has attempted to</a> reduce violent crime through changes to criminal justice and human rights law. </p>
<p>But these attempts have largely failed, allowing the cycle of violence to escalate. </p>
<p>Here are four key points to understand. </p>
<h2>1. Violence in Mexico continues to rise</h2>
<p>An <a href="https://www.economist.com/the-americas/2022/09/01/several-violent-episodes-in-mexico-suggest-a-worrying-trend">average of 25</a> people disappear every day in Mexico. The <a href="https://data.worldbank.org/indicator/VC.IHR.PSRC.P5?locations=MX">murder rate</a> stands at 28 per 100,000 people – four times the rate in the United States. </p>
<p>The <a href="https://data.worldbank.org/indicator/VC.IHR.PSRC.P5?locations=MX">violence rate in Mexico shot</a> up starting in 2007, with the worst years in 2011 and <a href="https://www.macrotrends.net/countries/MEX/mexico/crime-rate-statistics">again</a> from 2018 to the present. </p>
<p>Violent crime <a href="https://www.globalguardian.com/newsroom/risk-map-mexico">varies significantly</a> across the country. </p>
<p>The people most at risk of violence are in the central and southwestern parts of the country, as well as in the northern states of Chihuahua, Sinaloa, <a href="https://www.scielo.cl/scielo.php?pid=S0719-37692015000200006&script=sci_arttext">Baja California Norte and Tamaulipas</a>. </p>
<p>In the western states of Michoacán and Guerrero, violent crime – including kidnappings, murders and disappearances – occur mostly between <a href="https://mexiconewsdaily.com/news/new-self-defense-forces-surface-in-guerrero/">citizens’ self-defense</a> and drug-trafficking groups. In the northern states, bordering the U.S., the violence is dominated by fighting between drug cartels and street gangs.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/507960/original/file-20230202-14692-3d58yn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Many small metal bullet casings are seen scattered on a beige ceramic tile floor outside." src="https://images.theconversation.com/files/507960/original/file-20230202-14692-3d58yn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/507960/original/file-20230202-14692-3d58yn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=372&fit=crop&dpr=1 600w, https://images.theconversation.com/files/507960/original/file-20230202-14692-3d58yn.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=372&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/507960/original/file-20230202-14692-3d58yn.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=372&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/507960/original/file-20230202-14692-3d58yn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=467&fit=crop&dpr=1 754w, https://images.theconversation.com/files/507960/original/file-20230202-14692-3d58yn.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=467&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/507960/original/file-20230202-14692-3d58yn.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=467&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Bullet casings outside the Mexican home of drug trafficker Ovidio Guzmán-López, whom police arrested in January 2023.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1246073900/photo/mexico-drugs-violence-guzman-arrest.jpg?s=1024x1024&w=gi&k=20&c=BCo4jL_w0j13ebbvBvACoLgyhF6E-daIAVuQbcRDdBA=">Juan Carlos Cruz/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>2. Military used to fight war on drugs</h2>
<p>Mexican federal authorities have associated rising violence with drug trafficking since the beginning of the 20th century – dating back to 1917, when the <a href="https://www2.juridicas.unam.mx/constitucion-reordenada-consolidada/en/vigente">Mexican Constitution</a> prohibited drugs, with the goal of preventing violence. </p>
<p>And, so, when Mexico’s former President Felipe Calderón <a href="https://www.npr.org/2011/12/09/143429367/5-years-later-calderons-war-on-cartels">first declared a formal war </a> on drugs in 2006, his decision had a long history. </p>
<p>The U.S. government supported this war with a <a href="https://mx.usembassy.gov/the-merida-initiative/">US$3.4 billion</a> military agreement, <a href="https://www.brookings.edu/articles/us-mexico-security-collaboration-wont-be-easily-resurrected/">called the Merida Initiative</a>, that began in 2007 and lapsed in 2021. </p>
<p>The plan’s tactics – including the Mexican military’s targeting and killing of drug cartel leaders – did not quell the <a href="https://www.jstor.org/stable/resrep11780">rising violence</a>, which continued to spread and intensify <a href="https://www.macrotrends.net/countries/MEX/mexico/crime-rate-statistics">over the past 16 years</a>. </p>
<p>Mexico has tried to address this rise in drug cartel activity and crime with different measures, including sending <a href="https://law.yale.edu/yls-today/news/militarization-mexico-costs-lives-and-constitutional-legitimacy-panel-says">128,000 Mexican soldiers</a> to fight drug cartels and other criminal groups in Mexico’s streets – a violation of Mexico’s original Constitution that prohibited the use of military for police work within the country. In October 2022, Mexico approved a constitutional reform that allows the military to carry out domestic law enforcement <a href="https://constitutionnet.org/news/mexico-constitutional-reform-allowing-military-perform-police-work-passes-pending-majority">through 2028</a>.</p>
<h2>3. Corruption complicates crime reduction</h2>
<p>The Mexican government also passed a number of new laws over the past decade to address crime. </p>
<p>One main problem with implementing these laws effectively is <a href="https://www.transparency.org/en/cpi/2021">widespread corruption</a> across the government, military and <a href="https://doi.org/10.1080/09592310903561544">justice system</a>. The Mexican military, for example, is tasked with fighting cartels – but <a href="https://www.npr.org/2022/10/14/1129001666/data-leak-exposes-mexico-military-corruption-including-collusion-with-drug-carte">soldiers have also</a> been known to sell weapons to them.</p>
<p>In 2008, the Mexican Congress approved a series of constitutional reforms affecting the <a href="https://www.ojp.gov/ncjrs/virtual-library/abstracts/judicial-reform-mexico-toward-new-criminal-justice-system">criminal justice system</a> – these reforms addressed the reality that <a href="https://biblioteca.cejamericas.org/bitstream/handle/2015/5143/mex-detenciones-arbitrarias.pdf?sequence=1&isAllowed=y">people often are arrested</a> and convicted for crimes they did not commit. This is partially because Mexico’s old legal system <a href="https://www.economist.com/the-americas/2016/06/18/trials-and-errors">presumed all people</a> put on trial were guilty until proved innocent – the reforms switched this norm to the U.S. model, so people are now considered innocent until proved guilty.</p>
<p>Over 90% murders in Mexico <a href="https://insightcrime.org/news/analysis/solving-mexico-homicide-backlog-could-take-124-years/">from 2010 to 2016</a>, meanwhile, remain unsolved. </p>
<p>The changes to the criminal justice system aim to address these issues and make several important changes. These reforms include making trials – which were typically documented only in writing – oral, making it easier for people to track court cases and <a href="https://worldjusticeproject.mx/la-nueva-justicia-penal-en-mexico/">leading to a rise</a> in public monitoring of court proceedings. </p>
<p>The changes also mandated that <a href="https://justiceinmexico.org/judicial-reform-in-mexico-toward-a-new-criminal-justice-system/">three independent judges</a> serve on all trials, to avoid the risk of a single <a href="https://www.reuters.com/article/us-mexico-politics-crime/mexico-to-go-after-all-narco-judges-official-idUSKCN1SQ2H6">judge aligned with drug cartels</a> presiding over a decision. </p>
<p>The changes were fully implemented across all 31 states of Mexico in 2016. But these <a href="https://www.wola.org/wp-content/uploads/2019/11/WEB-JUSTICE-REFORMS-REPORT-ENG.pdf">reforms have not</a> reduced violence in Mexico. They only scratch the surface and do not address the structural issues – like misogyny and racism – at the root of violence against particularly vulnerable people, <a href="https://theconversation.com/mexicos-other-epidemic-murdered-women-132307">like women</a> and <a href="https://www.washingtonpost.com/opinions/2021/08/31/tapachula-crisis-chiapas-mexico-migrants-racism-violence/">Indigenous people</a>. </p>
<p><a href="https://doi.org/10.1080/01924036.2021.1998917">Most Mexican people</a> also do not trust their police or criminal justice system. </p>
<p><a href="https://www.mexicoviolence.org/essential-numbers#">University of California’s San Diego’s Center for U.S.-Mexican Studies estimates</a> that 93.3% of crimes are not reported. Out of the small number of reported cases, arrests are made in only 11.5%. </p>
<p>Women, notoriously, <a href="https://drive.google.com/file/d/1yVfgnItDgQC88zr2fnHW4lE8MwmzuPi0/view">are not</a> acknowledged when they report that they <a href="https://apnews.com/article/mexico-caribbean-gender-6594c9b2c9ea39a52dc3204e16be704c">are victims of crime</a>, or they are reported missing by loved ones. And <a href="https://www.reuters.com/world/americas/mexico-lack-resources-aggravates-impunity-gender-crimes-group-2022-12-02/">violent crimes</a> against women are solved at even lower rates than other crimes. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/507962/original/file-20230202-12962-fzxm26.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A soldier wearing camouflage and carrying a gun stands in front of a charred car on a sunny day." src="https://images.theconversation.com/files/507962/original/file-20230202-12962-fzxm26.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/507962/original/file-20230202-12962-fzxm26.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/507962/original/file-20230202-12962-fzxm26.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/507962/original/file-20230202-12962-fzxm26.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/507962/original/file-20230202-12962-fzxm26.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/507962/original/file-20230202-12962-fzxm26.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/507962/original/file-20230202-12962-fzxm26.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A Mexican soldier stands guard outside a crime scene in Zacatecas state, Mexico, in March 2022.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1239480084/photo/mexico-crime-drugs-zacatecas.jpg?s=1024x1024&w=gi&k=20&c=QIgWwOpyu1WAXV3Gg_Glcrgk1cfGDkZlrbxj1J6DlRQ=">Pedro Pardo/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>4. The laws don’t tackle core problems</h2>
<p>In my opinion, criminal justice reforms alone cannot reduce crime in Mexico. </p>
<p>The percentage of Mexican <a href="https://www.nytimes.com/2022/07/18/world/americas/mexico-economy-poverty.html">people living in</a> poverty <a href="https://www.bbvaresearch.com/en/publicaciones/mexico-38-million-more-poor-and-21-million-more-in-extreme-poverty-between-2018-2020/">continued to grow</a> from 2018 and 2020, increasing by 7.3% during these years. </p>
<p>Inequality between <a href="https://wir2022.wid.world">Mexico’s richest and poorest</a> people also remains on the rise, making it one of the most unequal countries in the world. <a href="https://www.tandfonline.com/doi/full/10.1080/00220388.2021.1971649">Some research</a> shows that strengthening educational systems in Mexico – <a href="https://openknowledge.worldbank.org/bitstream/handle/10986/18825/WPS6935.pdf?sequence=1&isAllowed=y">and reducing inequality</a> – could help curb crime.</p>
<p>These factors – in addition to <a href="https://www.cnbc.com/2021/06/17/the-us-has-spent-over-a-trillion-dollars-fighting-war-on-drugs.html">illicit drug usage</a> in the U.S. and demand for drugs transported through Mexico – all form a complicated web that will need to be untangled, and systematically addressed, before criminal justice reforms alone can help make Mexico a safer and more just country.</p><img src="https://counter.theconversation.com/content/198277/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rebecca Janzen received funding from the University of South Carolina's College of Arts and Sciences to conduct research for this work. </span></em></p>Mexico’s crime epidemic continues to worsen, as poverty and inequality also grow in the country.Rebecca Janzen, Associate Professor of Spanish and Comparative Literature, University of South CarolinaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1975132023-01-18T21:29:08Z2023-01-18T21:29:08Z5 ways to reform Canada’s bail system to benefit both the public and the accused<figure><img src="https://images.theconversation.com/files/504787/original/file-20230116-13-559uvt.JPG?ixlib=rb-1.1.0&rect=0%2C0%2C4081%2C2669&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A man rushes past the Ontario courthouse in Toronto in May 2022. </span> <span class="attribution"><span class="source">THE CANADIAN PRESS/Christopher Katsarov</span></span></figcaption></figure><iframe style="width: 100%; height: 100px; border: none; position: relative; z-index: 1;" allowtransparency="" allow="clipboard-read; clipboard-write" src="https://narrations.ad-auris.com/widget/the-conversation-canada/5-ways-to-reform-canada-s-bail-system-to-benefit-both-the-public-and-the-accused" width="100%" height="400"></iframe>
<p>In the wake of recent high-profile crimes allegedly committed by accused people out on bail, <a href="https://www.cbc.ca/news/canada/hamilton/funeral-opp-const-grzegorz-pierzchala-1.6702283">including the slaying of a police officer in Ontario</a>, police leaders and politicians are calling for a tougher bail system.</p>
<p>Fuelling calls for reform is the accusation that <a href="https://www.ctvnews.ca/canada/are-canadian-bail-rules-tough-enough-experts-weigh-in-after-officer-killed-1.6216708">bail is a “catch-and-release” system</a> that quickly returns people accused of crimes to the community only to see them regularly and wilfully disregarding their release conditions. </p>
<p>Critics believe the rights of the accused are being prioritized over the rights of victims and public safety.</p>
<p>Scholars and legal advocates have likewise denounced the bail system, but for very different reasons. Canadian scholars have demonstrated how bail <a href="https://johnhoward.on.ca/wp-content/uploads/2014/07/JHSO-Reasonable-Bail-report-final.pdf">sets up accused people to fail</a> by imposing unreasonable conditions that entrap individuals in a revolving door of justice. </p>
<p>But is the bail system really broken? If so, how do we fix it? We argue that while the law on bail is sound, its implementation needs improvement. </p>
<h2>Many Canadians don’t understand bail</h2>
<p>Bail legislation reflects fundamental principles outlined in Canada’s <a href="https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art11e.html">Charter of Rights and Freedoms</a> that attempt to balance the rights of accused people — by upholding the presumption of innocence — with public safety and confidence in the criminal justice system. </p>
<p>The law allows for people who are deemed risky to be detained, particularly for certain indictable offences or when confidence in the administration of justice would be undermined by releasing an accused person into the community. </p>
<figure class="align-left ">
<img alt="A man with a goatee in red and white robes." src="https://images.theconversation.com/files/504784/original/file-20230116-12-nru3o5.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/504784/original/file-20230116-12-nru3o5.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/504784/original/file-20230116-12-nru3o5.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/504784/original/file-20230116-12-nru3o5.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/504784/original/file-20230116-12-nru3o5.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/504784/original/file-20230116-12-nru3o5.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/504784/original/file-20230116-12-nru3o5.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Supreme Court Chief Justice Richard Wagner is seen in November 2022.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Sean Kilpatrick</span></span>
</figcaption>
</figure>
<p>For those who are released on bail, most must abide by conditions that restrict who they can associate with, where they can go, what they can do and where they can live. </p>
<p>Legally, however, judges must impose the fewest and least onerous conditions necessary, in adherence with <a href="https://qweri.lexum.com/calegis/rsc-1985-c-c-46-en#!fragment/sec515subsec2">provisions of the country’s Criminal Code</a> and <a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16649/index.do">precedent-setting Supreme Court decisions</a>. </p>
<h2>Bail is a rigorous process</h2>
<p>Our ongoing studies on the experience of living with bail conditions present a stark contrast to perceptions of a lenient bail system. </p>
<p>A vast majority of the accused people we have spoken to report taking their conditions seriously and accepting responsibility for their actions while on bail. They believe that the path out of the criminal justice system involves making meaningful changes in their lives.</p>
<p>Bail supervisors similarly attest that bail is a rigorous process. In interviews, they emphasized that bail supervision programs have clear criteria about who they accept into their program. They report that most accused people are committed to, and successfully complete, their bail.</p>
<p>When accused do breach bail, <a href="https://www.justice.gc.ca/eng/rp-pr/jr/jf-pf/2017/oct01.html">98 per cent</a> of charges are related to release conditions rather than new offences. </p>
<p>Recent <a href="https://www150.statcan.gc.ca/t1/tbl1/en/tv.action?pid=3510015401">Statistics Canada data</a> also shows that nearly 80 per cent of people in provincial custody in Ontario were legally innocent, further demonstrating that bail is not a lenient process.</p>
<figure class="align-center ">
<img alt="The inside of a detention centre, with metallic seating areas and green doors and staircases." src="https://images.theconversation.com/files/504785/original/file-20230116-14-27quid.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/504785/original/file-20230116-14-27quid.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=392&fit=crop&dpr=1 600w, https://images.theconversation.com/files/504785/original/file-20230116-14-27quid.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=392&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/504785/original/file-20230116-14-27quid.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=392&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/504785/original/file-20230116-14-27quid.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=493&fit=crop&dpr=1 754w, https://images.theconversation.com/files/504785/original/file-20230116-14-27quid.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=493&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/504785/original/file-20230116-14-27quid.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=493&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The general inmate facility is shown during a media tour of the Toronto South Detention Centre.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Nathan Denette</span></span>
</figcaption>
</figure>
<h2>Inequalities in bail</h2>
<p>Bail can also exacerbate social marginalization and criminalization. The imposition of <a href="https://ccla.org/wp-content/uploads/2021/07/Set-up-to-fail-FINAL.pdf">restrictive and onerous conditions</a> that require residency conditions for those experiencing homelessness, for example, makes completing bail without breaching its conditions more difficult. </p>
<p>While awaiting trial, <a href="https://www.reuters.com/article/canada-us-canada-jails-race-exclusive-idCAKBN1CO2RD-OCADN">Black people in Ontario spend longer in custody</a> than white people, and <a href="https://www.justice.gc.ca/eng/rp-pr/jr/gladue/p2.html">Indigenous people are denied bail more frequently</a> than other accused people. </p>
<p>Time spent in pre-trial custody has <a href="https://www.legalaid.on.ca/documents/a-legal-aid-strategy-for-bail/#section2">negative legal and social implications</a>. Not only does it compel accused people to plead guilty and agree to unreasonable release conditions, it also disrupts employment and familial responsibilities. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/broken-system-why-is-a-quarter-of-canadas-prison-population-indigenous-91562">Broken system: Why is a quarter of Canada's prison population Indigenous?</a>
</strong>
</em>
</p>
<hr>
<h2>5 ways to reform bail</h2>
<p>Focusing bail reform narrowly around “tough-on-crime measures” is unlikely to enhance public safety. Here are five proposals to reform bail:</p>
<ol>
<li><p><strong>Timely bail decisions</strong>. Quick decisions on bail will have two benefits. First, they’ll decrease the likelihood the accused will accrue additional charges, often for non-criminal behaviour, if they breach their conditions. And they’ll also reduce the amount of time accused people spend in the community before serving their sentences. </p></li>
<li><p><strong>Access to community resources.</strong> Homelessness, mental health issues, substance use, addiction and/or trauma are realities that make access to bail, and adhering to bail conditions, extraordinarily challenging. Not knowing where you’re sleeping every night or having an active addiction means compliance becomes an afterthought. </p></li>
<li><p><strong>More funding for enhanced bail supervision programs.</strong> Bail supervision programs are a cost-effective way to monitor accused people with higher risks or needs in the community, and act as vital conduits to desperately needed resources. </p></li>
<li><p><strong>Inter-agency communication.</strong> Increased communication among social service agencies, courts and police will improve the efficiency and effectiveness of bail. </p></li>
<li><p><strong>Systematic collection of bail statistics.</strong> Currently, the statistics on bail are inadequate. Collecting data, and disaggregating it in meaningful categories, is essential for informing evidence-based responses. </p></li>
</ol>
<h2>Probing the causes of crime</h2>
<p>Demands to reform the bail system are understandable in the face of the violent victimization of innocent Canadians. Yet calls solely for punitive responses mask our unwillingness to address the structural causes of crime. </p>
<p>Crown attorneys and judges must clearly continue upholding the law on bail, which requires restraint while also protecting the presumption of innocence and balancing public safety. </p>
<p>But to protect communities, we must also improve the likelihood that accused people can comply with their bail conditions by offering greater support and collaboration on several fronts, from social services to law enforcement.</p><img src="https://counter.theconversation.com/content/197513/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Carolyn Yule receives funding from the Social Sciences and Humanities Research Council. </span></em></p><p class="fine-print"><em><span>Laura MacDiarmid does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>To protect communities, we must improve the likelihood that accused people can comply with their bail conditions by offering greater support on several fronts, from social services to law enforcement.Carolyn Yule, Associate Professor of Sociology, University of GuelphLaura MacDiarmid, Assistant Professor, Justice Studies, University of Guelph-HumberLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1932282023-01-04T19:22:25Z2023-01-04T19:22:25ZHigh, Supreme, Federal, Family, County – what do all our different courts actually do?<p>One way to understand how the courts in Australia are ranked is to imagine a pyramid and an umbrella. </p>
<p>Let’s start with the pyramid. Imagine three lines horizontally across the pyramid dividing it into four sections. Each section represents a court of each state or territory.</p>
<p>So what’s on the base of the pyramid, and what are the upper layers?</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/a-constitutional-voice-to-parliament-ensuring-parliament-is-in-charge-not-the-courts-193017">A constitutional Voice to Parliament: ensuring parliament is in charge, not the courts</a>
</strong>
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<h2>The Local or Magistrates Courts</h2>
<p>The bottom section represents the local or magistrates courts. It is biggest because it deals with the vast majority of court cases in Australia.</p>
<p>There is a single judicial officer presiding, and no jury. The bread and butter of these courts are minor crimes such as traffic offences, lesser assaults, shoplifting and possession of prohibited drugs. </p>
<p>These courts also have other roles including being children’s and coroners’ courts. They also deal with less serious civil disputes, where one person or company is suing another (under certain limits; in New South Wales, for example, that limit is A$100,000). </p>
<p>Local courts also deal with apprehended violence and restraining orders. The maximum sentence that can be handed out by a judge in a local court is generally two years imprisonment. </p>
<p>The other reason the bottom section of the pyramid is biggest is because all criminal matters start in the local court. The more serious ones work their way up to the higher courts for sentence or trial. </p>
<h2>The District Court</h2>
<p>The next section up the pyramid represents the District Court. </p>
<p>They deal with more serious crime such as sexual assault, major drug supply and high-level violence. </p>
<p>If the person on trial doesn’t plead guilty, there is a jury to determine guilt or innocence. </p>
<p>The district court also deals with serious civil disputes, generally where the amount is up to $750,000.</p>
<h2>The Supreme Court</h2>
<p>The Supreme Court is the next layer of the pyramid. It deals with the most serious civil and criminal cases, such as murder. They mostly have a jury in criminal cases.</p>
<p>They also deal with some specialty areas such as defamation.</p>
<h2>The Courts of Appeal</h2>
<p>Finally, there is the Courts of Appeal, which are part of the Supreme Court, but sit above it.</p>
<p>They hear appeals from lower courts, and there are usually three judges sitting on each matter. </p>
<p>The really interesting aspect of the pyramid is that it represents not just more seriousness and less volume as you go up, but also the appeal process.</p>
<p>So, if you want to appeal from the Local Court, then you go the District Court, then from the District to the Supreme Court and so on.</p>
<p>The “<a href="https://blogs.unimelb.edu.au/opinionsonhigh/2013/07/18/harding-precedent/">doctrine of precedent</a>” means rulings from higher courts are binding on lower ones. </p>
<h2>The High Court and the umbrella model</h2>
<p>But what if you want to appeal from the Court of Appeal? That’s where the umbrella comes in. </p>
<p>That appeal is to the High Court, which you can imagine as an umbrella that sits over each of the state or territory pyramids. </p>
<p>There is one High Court, based in Canberra, and its decisions are final, and binding throughout all parts of Australia. </p>
<p>Fun fact: up until the 1980s the highest court for Australia was in England! Called the Privy Council, it was possible to appeal from state and federal courts and let English law lords be the final decider. But Australia got rid of that system and now the highest court in the land is the High Court.</p>
<h2>Some state-based variations</h2>
<p>Is it all that simple? Not really.</p>
<p>First, in Tasmania the Australian Capital Territory and the Northern Territory there is no District Court level at all. These are small states and territories, with not enough people to necessitate this level of the pyramid.</p>
<p>Second, sometimes appeals jump a level. For example, they may go straight from the Local Court to the Supreme Court. And in some states, there are different names for each level. In Victoria the District Court is called the County Court, and in some places like the Northern Territory, magistrates are called judges. </p>
<p>Finally, there are some specialty courts like the NSW Land and Environment Court that sit at Supreme Court level. </p>
<h2>Hang on, what about federal courts?</h2>
<p>Just when you thought you had your pyramids in a row, along comes another complication: the federal system. </p>
<p>The Constitution divides up powers between the states and the Commonwealth.</p>
<p>The best example is family law, which is allocated to the Commonwealth and so the Federal Court system deals with divorce and related matters. </p>
<p>And so there is another pyramid which works across the whole country only this time it has two levels.</p>
<p>The lowest and biggest level is the <a href="https://www.fcfcoa.gov.au/">Federal Circuit and Family Court of Australia</a>, dealing mostly with family law (but also other federal matters such as immigration and welfare law).</p>
<p>The next level up is the Federal Court, which deals mainly with corporations law, bankruptcy and trade practices as well as hearing appeals from the lower court. </p>
<p>Don’t forget the umbrella, the High Court, which also hears appeals from the Federal Court. </p>
<h2>A whole myriad of tribunals</h2>
<p>I’m sorry to have to tell you it gets even more complex from there. There are also tribunals.</p>
<p>Sitting beneath the state, territory and federal court systems is a whole myriad of tribunals which deal with non-criminal matters. </p>
<p>New South Wales, for example, has the New South Wales Civil and Administrative Tribunal (NCAT), which deals with tenancy, consumer, guardianship, strata and licensing matters. It even has its own appeal panel as well (and if people still aren’t happy, they can then appeal to the courts).</p>
<p>The members of the tribunal are not judicial officers and are appointed for fixed periods. </p>
<p>Of course, if you were to strike out centuries of history and start afresh, you would likely just have one multilayered pyramid across the country with a single tribunal at the foot, and the High Court at the top.</p>
<p>We can live in hope. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/why-defamation-suits-in-australia-are-so-ubiquitous-and-difficult-to-defend-for-media-organisations-157143">Why defamation suits in Australia are so ubiquitous — and difficult to defend for media organisations</a>
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<img src="https://counter.theconversation.com/content/193228/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Heilpern does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>All criminal matters start in the local court. The more serious ones work their way up to the higher courts for sentence or trial.David Heilpern, Associate Professor and Chair of Discipline (Law), Southern Cross UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1952732022-12-05T13:26:14Z2022-12-05T13:26:14ZA judge in Texas is using a recent Supreme Court ruling to allow domestic abusers to keep their guns<figure><img src="https://images.theconversation.com/files/498785/original/file-20221204-16605-8lpn7f.jpg?ixlib=rb-1.1.0&rect=0%2C9%2C3008%2C1985&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Taking guns from abusers saves lives.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/gun-royalty-free-image/1007622020?phrase=gun%20law&adppopup=true">Kameleon007 via Getty Images</a></span></figcaption></figure><p>For a large part of the history of the United States, <a href="https://www.indiebound.org/book/9781635570977">domestic abuse was tolerated</a> under the nation’s legal system. There were few laws <a href="https://doi.org//10.1353/eam.2007.0008">criminalizing</a> <a href="https://doi.org//10.1086/449151">domestic violence</a>, and enforcement of the existing laws was rare. </p>
<p>It was only in the <a href="https://jaapl.org/content/38/3/376">past few decades</a> that laws criminalizing domestic violence came to be widespread and enforced. But now, the U.S. is in danger of backtracking on that legal framework precisely because of the <a href="https://doi.org//10.1086/449151">nation’s historical legacy</a> of turning a blind eye to domestic violence.</p>
<p>On Nov. 10, 2022, a <a href="https://storage.courtlistener.com/recap/gov.uscourts.txwd.1177458/gov.uscourts.txwd.1177458.55.0.pdf">judge in the Western District of Texas</a> struck down the federal law that prohibits access to guns for people subject to domestic violence protection orders. He did this based on a 2022 U.S. Supreme Court ruling, <a href="https://www.oyez.org/cases/2021/20-843">NYSRPA v. Bruen</a>, which held that, to be constitutional, a firearm restriction must be analogous to laws that were in existence when the country was founded. In other words, disarming domestic abusers violates the Second Amendment because those types of laws didn’t exist at the founding of the country.</p>
<p>In a separate, but related, case, the 5th U.S. Circuit of Court of Appeals on Feb 1. sided with the Texas judge, ruling that the <a href="https://www.cnn.com/2023/02/02/politics/domestic-violence-guns-fifth-circuit/index.html">federal ban was unconstitutional</a>. The Justice Department has indicated that it will appeal.</p>
<p>We <a href="https://sph.umich.edu/faculty-profiles/zeoli-april.html">study the link between gun laws</a> <a href="https://publichealth.jhu.edu/faculty/240/shannon-frattaroli">and domestic violence in the U.S.</a> and know that backtracking on laws that prevent the perpetrators of domestic violence from getting their hands on guns will put lives at risk – the <a href="https://pubmed.ncbi.nlm.nih.gov/20363814/">research </a>has proved this time and time again. </p>
<h2>Putting lives in danger</h2>
<p>At present, <a href="http://disarmdv.org/">federal law</a> prohibits persons subject to final – rather than temporary – domestic violence protection orders from purchasing or possessing firearms. In addition, 39 states and the District of Columbia have similar prohibitions on their statutes, with many expanding the restrictions to include individuals under temporary, or ex parte, orders prior to a full hearing.</p>
<p>Ruling that these laws are unconstitutional will put mainly women and children in danger. <a href="https://pubmed.ncbi.nlm.nih.gov/31245255/">More than 50%</a> of women who are murdered are killed by intimate partners, and <a href="https://psycnet.apa.org/record/2019-14080-005">most of those homicides</a> are committed with guns. A 2003 study found that when an abusive man has access to a gun, it <a href="https://doi.org//10.2105/ajph.93.7.1089">increases the risk</a> of intimate partner homicide by 400%.</p>
<p>Women constitute the <a href="https://ucr.fbi.gov/crime-in-the-u.s/2019/crime-in-the-u.s.-2019/tables/expanded-homicide-data-table-10.xls">majority of victims</a> of intimate partner homicide, and almost <a href="https://pubmed.ncbi.nlm.nih.gov/28630118/">one-third of children under the age of 13</a> who are murdered with a gun are killed in the context of domestic violence. </p>
<p>Moreover, <a href="https://injepijournal.biomedcentral.com/articles/10.1186/s40621-021-00330-0">68% of mass shooters</a> have a history of domestic violence or killed an intimate partner in the mass shooting.</p>
<p>Enforcement of <a href="https://pubmed.ncbi.nlm.nih.gov/20088664/">gun restrictions is spotty</a>, with further research needed as to how systematically they are ordered and whether restricted individuals relinquish firearms they already possess. Nonetheless, research shows that firearm restrictions on domestic violence protection orders save lives. <a href="https://doi.org//10.1093/aje/kwy174">Multiple studies</a> conclude that these laws are associated with an <a href="https://doi.org/10.1177/0193841X06287307">8%-10% reduction</a> in intimate partner homicide.</p>
<p>Specifically, there are <a href="https://pubmed.ncbi.nlm.nih.gov/30383263/">statistically significant reductions</a> in intimate partner homicide when the firearm restriction covers both dating partners and those subjected to temporary orders. This decrease is seen in total intimate partner homicide, not just intimate partner homicide committed with guns, nullifying the argument that abusers will use other weapons to kill.</p>
<p>Moreover, these laws have broad support across the country – <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7859883/">more than 80%</a> of respondents to two national polls in 2017 and 2019 said they favor them.</p>
<p>Americans – whether male or female, gun owner or non-gun owner – tend to agree that domestic abusers should not be able to purchase or possess firearms while they are subject to a domestic violence protection order. Most seem to realize that such reasonable restrictions serve the greater good of keeping families and communities safe. </p>
<h2>A disregard for data</h2>
<p>The ruling in Texas was based on an originalist legal argument rather than the data. Under the judge’s interpretation of the Bruen decision, because colonial law – written before a time when women could vote, let alone be protected in law from violent spouses – didn’t restrict domestic abusers’ gun rights, then it simply isn’t constitutional to do so now. In effect, the ruling, should it stand, would mean the U.S. is unable to escape the nation’s <a href="https://doi.org//10.1086/449151">historic legal disregard for domestic violence</a>.</p>
<p>It also disregards the harm that allowing domestic abusers to keep hold of guns does. Multiple studies demonstrate that domestic violence firearm restriction laws are <a href="https://doi.org//10.1136/ip.2009.024620">effective </a>and <a href="http://doi.org//10.1093/aje/kwy174">save</a> <a href="https://doi.org/10.1177/0193841X06287307">lives</a>.</p>
<p>That research shows that, should the Texas ruling stand, people who suffer abuse at the hands of an intimate partner are at greater risk of that abuse being deadly. </p>
<p><em><a href="https://www.linkedin.com/in/lisa-geller">Lisa Geller</a>, director of state affairs at the Johns Hopkins Center for Gun Violence Solutions at the Johns Hopkins Bloomberg School of Public Health, contributed to this article.</em></p>
<p><em>Editor’s note: This story was updated on Feb. 3, 2022 to include the ruling from the 5th Circuit Court of Appeals.</em></p><img src="https://counter.theconversation.com/content/195273/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Research shows that removing guns from violent abusers saves lives. But laws doing just that are at risk of being ruled unconstitutional, following a landmark Supreme Court guns case.April M. Zeoli, Associate Professor of Public Health, University of MichiganShannon Frattaroli, Professor of Health Policy and Management, Johns Hopkins UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1932372022-11-15T13:30:16Z2022-11-15T13:30:16ZNigeria has too many prison inmates awaiting trial. Technology could achieve swifter justice<figure><img src="https://images.theconversation.com/files/493842/original/file-20221107-15-in36l8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">An activist protests against the incarceration of hundreds of inmates imprisoned without trial in Nigeria. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-of-the-organisation-for-civil-rights-and-equal-news-photo/1228319258?phrase=prisons%20inmates%20nigeria&adppopup=true">Pius Utomi Ekpei/AFP via Getty Images </a></span></figcaption></figure><p>Nigeria’s prison population is more than <a href="https://www.corrections.gov.ng/statistics_summary">76,000</a>, housed in <a href="https://www.prisonstudies.org/country/nigeria">240</a> correctional centres. About <a href="https://www.corrections.gov.ng/statistics_summary">70%</a> of these inmates are still awaiting trial. They have been arrested and charged, but not yet convicted or cleared.</p>
<p>This is the highest percentage of awaiting-trial prisoners in Africa. World Prison Brief’s latest report puts the figure at <a href="https://www.prisonstudies.org/country/ghana">12.4% for Ghana</a> and <a href="https://www.prisonstudies.org/country/south-africa">32.9% for South Africa</a>.</p>
<p>The presumption of innocence is enshrined in Nigeria’s constitution, in <a href="https://streetlawyernaija.com/section-36-of-the-constitution-fair-hearing/#:%7E:text=of%20the%20matter">section 36(5)</a>. It says:</p>
<blockquote>
<p>Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty. </p>
</blockquote>
<p>But the reality in Nigeria, as a number of <a href="https://www.prisonstudies.org/sites/default/files/resources/downloads/pre-trial_detention_briefing_final.pdf">researchers have shown</a>, is that many people accused of crimes are presumed to be guilty. They are arrested and imprisoned before their cases are investigated. </p>
<p>Add to this a <a href="https://omaplex.com.ng/adjudication-timeframe-in-nigerias-criminal-jurisprudence-the-bill-that-should-have-passed/">court system beset by delays and backlogs</a> – it’s no wonder that Nigeria has so many inmates awaiting trial.</p>
<p>There are reports of accused people <a href="https://www.nytimes.com/2017/09/19/us/alabama-kharon-davis-speedy.html">spending 10 years awaiting trial in the US</a>, and between <a href="https://journals.sagepub.com/doi/full/10.1177/21582440221079822">12 and 15 years in Nigeria</a>. This long wait in Nigeria is against <a href="https://www.lawglobalhub.com/section-293-299-administration-of-criminal-justice-act-2015/#:%7E:text=Section%20296%20Administration%20of%20Criminal%20Justice%20Act%202015,-Time%20and%20protocol&text=(1)%20Where%20an%20order%20of,returnable%20within%20the%20same%20period">section 296 of the 2015 Administration of Criminal Justice Act</a>. The law provides that the period of remand should not exceed 28 days. </p>
<p>There have been some efforts to address the situation. The government offers some free legal services through <a href="https://legalaidcouncil.gov.ng/">the Legal Aid Council</a>. It provides free legal assistance and representation, legal advice and alternative dispute resolution to indigent Nigerians to enhance access to justice. But the problem seems intractable.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/waiting-for-trial-can-be-worse-than-facing-the-sentence-a-study-in-nigerian-prisons-145480">Waiting for trial can be worse than facing the sentence: a study in Nigerian prisons</a>
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<p>We wondered whether a technological solution might be a step towards addressing trial backlogs.</p>
<p>So we set out <a href="https://journals.sagepub.com/doi/full/10.1177/21582440221079822">to study</a> the situation at two correctional centres in Abakaliki and Afikpo, towns in Ebonyi State in south-east Nigeria. We investigated the underlying causes of long awaiting-trial periods and ways of addressing them.</p>
<p>The main causes of delay include the slow pace of investigation by the police and the loss of case files. Others are an inadequate court system and poor access to lawyers. </p>
<p>Our findings suggest that a repository portal system could help address most of the issues delaying trials. The portal would be a database where information about accused persons and their current trial status would be stored. It would be easily accessible, too. Material relating to investigations and police findings could be uploaded to the portal, which would then automatically allocate cases, depending on the nature of the alleged offences, to the relevant court. </p>
<p>This would address the challenge of loss or manipulation of data by criminal justice agents, like the police and correctional centre officials. It also tackles the challenge posed by manually sorting through large files. </p>
<p>A system like this has not been proposed or applied in any African country yet.</p>
<h2>What we did</h2>
<p><a href="https://journals.sagepub.com/doi/full/10.1177/21582440221079822">Our study</a> focused on 1,343 inmates at Abakaliki and Afikpo correctional centres. Of that figure, 845 (63%) were awaiting trial.</p>
<p>We used structured questionnaires and unstructured in-depth interviews with a sample of 1,498 respondents drawn from the Nigerian criminal justice agencies and “awaiting-trials”. We asked the participants about their experiences in the criminal justice system, whether the processes were automated or manual, and how the process affected their experience. This was with a view to identifying the gaps caused by manual methods in the system, and determining how information and communication technology could fill that gap. </p>
<p>Nigeria’s criminal justice bureaucracy uses manual processes to record and preserve information about suspects and evidence, transfer case files, prepare for suspects’ court appearances and allocate cells to inmates. </p>
<p>Some of the problems identified are losses of case files, degradation of evidence and delays in preparing inmates for court appearances. Other problems are delays in concluding cases and improper allocation of cells. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/nigerias-jailbreaks-point-to-a-prison-system-out-of-step-with-reality-186935">Nigeria's jailbreaks point to a prison system out of step with reality</a>
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<p>The results showed that 39.1% of the police officers (241 of 617), 69% of the prison officials (100 of 145) and 53.1% of the court officials (60 of 113) were of the view that automation of the criminal justice processes using a repository system could address the delays. </p>
<p>These findings are in line with our qualitative data. The criminal justice agents we interviewed affirmed the importance of linking and automating all the criminal justice agencies with a repository system. </p>
<h2>Developing the portal</h2>
<p>The information on the portal should categorise offences as simple, misdemeanour or felony. There should be detailed information about the suspects, offences they are accused of and legal provisions guiding such offences. </p>
<p>Here’s the process we propose for using the repository system:</p>
<ul>
<li><p>police upload cases onto a database</p></li>
<li><p>the system can transfer cases to the nearest courts of competent jurisdiction</p></li>
<li><p>the trial can commence</p></li>
<li><p>after judgement, those found guilty will be sent to correctional centres to serve their sentences</p></li>
<li><p>those acquitted will be released and their cases will be marked closed.</p></li>
</ul>
<p>To ensure seamless functioning of the system, a monitoring body should be created, independent from the Nigerian Correctional Service. It would monitor the activities of the criminal justice agents.</p><img src="https://counter.theconversation.com/content/193237/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Benjamin Okorie Ajah does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A central repository system offers practical solutions to reducing the large number of awaiting-trial inmates in Nigeria.Benjamin Okorie Ajah, Lecturer, University of NigeriaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1910832022-09-23T02:38:28Z2022-09-23T02:38:28Z‘No body, no parole’ laws could be disastrous for the wrongfully convicted<p>The New South Wales government is set to <a href="https://www.nsw.gov.au/media-releases/nsw-to-introduce-no-body-no-parole-laws">introduce</a> new “no body, no parole” laws, which will deny parole for homicide offenders who refuse to provide information or assistance to locate their victim’s remains.</p>
<p>This follows Chris Dawson’s murder conviction of Lynette Dawson, whose remains have yet to be found. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1571977464272031744"}"></div></p>
<p>Such laws offer prisoners an incentive to give up information about the location of their victims’ remains. Similar laws have already been introduced in Northern Territory, Queensland, South Australia, Victoria and Western Australia.</p>
<p>In general, “no body, no parole” laws mandate that parole authorities should deny parole unless they are satisfied about the level of cooperation provided by the prisoner to identify remains, including how early the information was provided.</p>
<p>These laws are designed to provide closure to friends and families of homicide victims, allowing them to bury their loved ones. However, there’s scant evidence they are effective. And they could prove disastrous for people in Australian prisons who have been wrongfully convicted.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/true-crime-entertainment-like-the-teachers-pet-can-shine-a-light-on-cold-cases-but-does-it-help-or-hinder-justice-being-served-189787">True crime entertainment like The Teacher's Pet can shine a light on cold cases - but does it help or hinder justice being served?</a>
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<h2>What is parole and why is it important?</h2>
<p>Parole is the conditional early release of prisoners, allowing them to serve a part of their sentence in the community. </p>
<p>When given a prison sentence, a judge will determine how long an offender must remain in custody (a non-parole period) and at what point they can become eligible to serve the rest of their sentence in the community.</p>
<p>Parole recognises that aims of rehabilitation may be best served by providing opportunities for prisoners to transition back into the community. The courts decide whether a person is eligible for parole, but state parole authorities decide whether or not to release them when the time comes. </p>
<p>Evidence suggests offenders who complete some period of parole before the end of their sentence are <a href="https://www.aic.gov.au/sites/default/files/2020-05/tandi485.pdf">less likely to re-offend</a>.</p>
<p>While completing their sentence in the community, parolees also must comply with parole conditions. This can include reporting conditions and mandatory behavioural programs that <a href="https://www.bocsar.nsw.gov.au/Pages/bocsar_publication/Pub_Summary/CJB/CJB245-Summary-The-effect-of-parole-supervision-on-recidivism.aspx">reduce the risk of re-offending</a>.</p>
<p>Tightening parole exacerbates the issue of <a href="https://www.pc.gov.au/research/completed/prison-dilemm">overcrowded prisons</a>
with offenders capable of being managed in the community being housed at the public expense in correctional facilities. </p>
<p>There is considerable concern in Australia over prisoners “maxing out” their custodial sentence, either by choosing <a href="https://www.abc.net.au/news/2016-09-09/victoria-parole-laws-backfiring-more-prisoners-max-out-sentence/7826940">not to apply for parole</a> to avoid conditions upon release, or because of restrictions on parole eligibility such as “no body, no parole” laws.</p>
<h2>The effectiveness of ‘no body’ laws</h2>
<p>We recently <a href="https://journals.sagepub.com/doi/abs/10.1177/26338076221087458">looked into</a> the effectiveness of Queensland’s “no body, no parole” laws, which were passed in 2017. </p>
<p>As our work with RMIT University’s <a href="http://www.bohii.net/">Bridge of Hope Innocence Initiative</a> often involves working with people serving terms of imprisonment while claiming their innocence, evaluating the effectiveness of such laws and their risk for the wrongfully convicted is of considerable interest.</p>
<p>Most Australian jurisdictions don’t publish their parole decisions. However Queensland <a href="https://www.pbq.qld.gov.au/no-body-no-parole/decisions-of-the-board/">does</a> – specifically for “no body” law outcomes. </p>
<p>Our analysis showed that of the ten cases that came before the parole board during our collection period, six involved cooperation by the applicant but none resulted in remains being found.</p>
<p>The Queensland case of Graeme Evans, who was convicted of manslaughter over the death of his former partner Leeann Lapham in 2018, has been <a href="https://www.abc.net.au/news/2022-09-21/convicted-murderer-sue-neill-fraser-no-body-no-parole-laws/101457110">cited in the media</a> as an example of “no body” laws working effectively.</p>
<p>However, Evans pleaded guilty to the offence and was not eligible for parole at the time when he helped investigators find Lapham’s remains. </p>
<p>This example is only related to “no body” laws because the detective in charge of the case has claimed he used the threat of those laws to convince Evans to cooperate.</p>
<p>We believe “no body” laws lack evidence to support their use and may offer false hope to victims’ families if remains cannot be found. They rely on many assumptions about how crimes occur, how offenders may cooperate, and effective policing investigations post-disclosure.</p>
<p>They may also prove disastrous for the wrongfully convicted.</p>
<h2>What about the wrongfully convicted?</h2>
<p>We have no idea how many people have been wrongfully convicted in Australia. An estimate based on research from the United States indicates <a href="https://www.unswlawjournal.unsw.edu.au/article/wrongful-convictions-appeals-and-the-finality-principle-the-need-for-a-criminal-cases-review-commission">up to 3%</a> of all convictions may be wrongful. But the reality is we have no way of finding out. </p>
<p>A person can be found guilty of a crime they didn’t commit for <a href="https://innocenceproject.org/causes-wrongful-conviction./#:%7E:text=Contributing%20causes%20confirmed%20through%20Innocence,government%20misconduct%20and%20bad%20lawyering.">a variety of reasons</a>, including eyewitness misidentification, improper forensic evidence, coerced or otherwise false confessions, or police misconduct.</p>
<p>Wrongful convictions remain a persistent risk within our criminal justice system, even when high standards of procedural justice are upheld. </p>
<p>Wrongfully convicted prisoners face what is referred to as “<a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=960125">the innocent prisoner’s dilemma</a>” when they become eligible for parole. If they maintain their innocence and refuse to admit responsibility or express remorse, they may be denied parole. If they do accept responsibility for a crime they did not commit, they may limit options in the future of having their conviction overturned. </p>
<p>“No body” laws add a further complication for the wrongfully convicted. The factually innocent are clearly unable to provide information to authorities about the location of the victim as they did not commit the crime and would not know where the body is. </p>
<p>A well known example is Lindy Chamberlain-Creighton, who was wrongfully convicted in 1982 for murdering her daughter Azaria. </p>
<p>Chamberlain was demonised publicly for not admitting guilt and for not leading investigators to Azaria’s body. A 2012 inquest later found Azaria was <a href="https://www.smh.com.au/national/dingo-took-azaria-chamberlain-coroner-finds-20120612-206wt.html">killed by a dingo</a>. </p>
<p>“No body” laws may at first appear to be acting in the public interest in ensuring families can bury their loved ones. But the lack of evidence of real outcomes and the very real risk it may disproportionately penalise the wrongfully convicted should give us pause before expanding this policy further.</p><img src="https://counter.theconversation.com/content/191083/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jarryd Bartle works for RMIT University's Bridge of Hope Innocence Initiative which examines cases of wrongful conviction that may be subject to no body, no parole laws.</span></em></p><p class="fine-print"><em><span>Greg Stratton works for RMIT University's Bridge of Hope Innocence Initiative which examines cases of wrongful conviction that may be subject to no body, no parole laws.</span></em></p><p class="fine-print"><em><span>Michele Ruyters works for RMIT University's Bridge of Hope Innocence Initiative which examines cases of wrongful conviction that may be subject to no body, no parole laws.
</span></em></p><p class="fine-print"><em><span>Monique Moffa works for RMIT University's Bridge of Hope Innocence Initiative which examines cases of wrongful conviction that may be subject to no body, no parole laws.</span></em></p>‘No body, no parole’ laws may at first appear to be in the public interest. But there’s a lack of evidence they work and a risk they may disproportionately penalise the wrongfully convicted.Jarryd Bartle, Associate Lecturer, RMIT UniversityGreg Stratton, Lecturer - Criminology and Justice Studies, RMIT UniversityMichele Ruyters, Associate Dean, Criminology and Justice Studies, RMIT UniversityMonique Moffa, Associate Lecturer, Criminology & Justice, RMIT UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1821132022-06-28T11:56:49Z2022-06-28T11:56:49ZMale judges are more likely to hire women as clerks after working with female judges<figure><img src="https://images.theconversation.com/files/464415/original/file-20220520-25-zv3qps.jpg?ixlib=rb-1.1.0&rect=0%2C15%2C5112%2C2858&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Although the legal landscape is changing, bias still slows career advancements for women and people of color.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/court-of-law-trial-in-session-portrait-of-honorable-royalty-free-image/1346156695?adppopup=true">gorodenkoff/iStock via Getty Images Plus</a></span></figcaption></figure><p>Despite <a href="https://erikhurst.com/wp-content/uploads/2020/02/HHJK_final.pdf">substantial gains</a> over the past half-century in the numbers of women working in law, medicine and business in the U.S., the elite ranks of these professions <a href="https://faculty.chicagobooth.edu/-/media/faculty/marianne-bertrand/research/the-glass-ceiling_112117.pdf">remain male dominated</a>, a phenomenon often referred to as the “glass ceiling.” </p>
<p>In corporate America, <a href="https://www.forbes.com/sites/naomicahn/2021/02/19/womens-status-and-pay-in-the-c-suite--new-study/?sh=2b6d122e3762">male executives outnumber women</a> 7 to 1 – and CEOs, 17 to 1. In the judiciary, <a href="https://www.americanprogress.org/article/examining-demographic-compositions-u-s-circuit-district-courts/">only about a quarter of federal appellate judges are women</a>, even though half of law school graduates are women. Because of this lack of diversity, powerful decision-makers may <a href="https://theconversation.com/fishing-strip-clubs-and-golf-how-male-focused-networking-in-medicine-blocks-female-colleagues-from-top-jobs-179931">only rarely collaborate with female peers</a>.</p>
<p>This lack of interaction may <a href="https://doi.org/10.1017/bpp.2018.25">reinforce biases</a> – both explicitly held prejudices and implicit assumptions, or ones that people may not realize that they are making. Biases held by established professionals who control hiring can, in turn, limit access to valuable opportunities for women who are just starting their careers. </p>
<p>I am a <a href="https://scholar.google.com/citations?user=VVNZIowAAAAJ&hl=en&oi=ao">labor economist</a> who studies the gender wage gap and this raised an important question for me: Does working with peers from underrepresented backgrounds lead established professionals to change their attitudes or actions, including making more inclusive decisions when hiring staff?</p>
<h2>Why study high-level courts?</h2>
<p>Working with co-authors <a href="https://www.epatacchini.com/">Eleonora Patacchini</a> and <a href="http://www.mbattaglini.com/">Marco Battaglini</a>, I analyzed the gender gap within the federal appellate court system. We collected data from 2007 to 2017 on which judges heard cases together in each year, and combined it with data on the law clerks that each judge hired. This let us see whether judges are more likely to hire women in years where they have heard many cases with their female colleagues.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/464423/original/file-20220520-23-ioetsk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Exterior of a courthouse in Columbia, South Carolina. The sign in the foreground says: South Carolina Court of Appeals." src="https://images.theconversation.com/files/464423/original/file-20220520-23-ioetsk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/464423/original/file-20220520-23-ioetsk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/464423/original/file-20220520-23-ioetsk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/464423/original/file-20220520-23-ioetsk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/464423/original/file-20220520-23-ioetsk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/464423/original/file-20220520-23-ioetsk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/464423/original/file-20220520-23-ioetsk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">In U.S. appellate courts, it is not uncommon for a panel of male and female judges to work together on a case.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/south-carolina-court-of-appeals-in-columbia-royalty-free-image/157571941?adppopup=true">thepixelchef/E! via Getty Images</a></span>
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<p>The <a href="https://www.uscourts.gov/about-federal-courts/court-role-and-structure/about-us-courts-appeals">appellate courts</a> offer unique insights into a high-level work environment. Appellate judges review decisions from lower courts to make sure that the law was correctly applied. To ensure fairness, each case is heard by a panel of at least three judges. </p>
<p>These panels are constructed through a lottery system, chosen from a list of available judges. As a result, the colleagues that judges work with do not reflect the judge’s attitudes, preferences or potential biases.</p>
<p>However, each judge chooses their own staff. Appellate judges hire law clerks to do legal research and help write opinions. These clerkships, typically filled by the best-performing graduates from prestigious law schools, are crucial steppingstones to roles in the judiciary and the legal profession as a whole. A judge’s hiring decisions reflect their personal assessment of a candidate’s ability to serve as a clerk – and to honorably represent the judge later in their career.</p>
<p>These key entry-level positions were <a href="https://www.abajournal.com/news/article/first-female-clerk-to-a-federal-appeals-judge-dies-at-the-age-of-94">historically open only to men</a> and remain male dominated. We find that women are still 33% less likely than men to land an appellate clerkship. That’s not due to a lack of interested female applicants – we found that women were about 50% more likely than men to get slightly less prestigious clerkships in federal district courts. </p>
<h2>Diversity increases diversity</h2>
<p><a href="https://doi.org/10.1086/720392">Our study found</a> that men were much more likely to hire female clerks in years when they had worked with more female colleagues. We estimate that when male judges worked on 30% of cases with women – rather than 20% – their likelihood of hiring a female clerk jumped by seven percentage points. This difference is statistically significant at the 0.005 level.</p>
<p>This suggests that diversity at the top of a profession can profoundly benefit those at the entry level. We estimate that increasing the prevalence of female appellate judges serving on the bench by just 16% – from <a href="https://www.americanprogress.org/article/examining-demographic-compositions-u-s-circuit-district-courts/">the current 25%</a> to 41% – would completely eliminate the gender disparity in appellate clerkships.</p>
<p>President Joe Biden has appointed a historically diverse slate of federal judges, including the nation’s <a href="https://theconversation.com/ketanji-brown-jackson-confirmed-as-supreme-court-justice-4-essential-reads-180838">first Black female Supreme Court justice</a>. This administration’s appointees are <a href="https://fivethirtyeight.com/features/how-biden-is-reshaping-the-courts/">far more diverse than those of any previous president</a>, including Democratic predecessors: 71% are nonwhite and 75% are women. Our findings suggest that these changes are likely to reshape the courts for generations to come.</p>
<h2>Overcoming bias</h2>
<p>Our research offers strong, concrete evidence that working closely with diverse peers influences the hiring decisions of established professionals. </p>
<p>While our work focuses on the judiciary, we think this lesson is likely to hold true in most fields. For appellate judges, deciding cases involves teamwork and collaboration that is similar to the collaborative process used in many other professions.</p>
<p>As a result, we expect that if the leadership in most workplaces more closely reflected the makeup of the U.S. – with more women and more racial, religious and ethnic representation – diverse young professionals would have better opportunities in law, business, science, medicine and beyond.</p><img src="https://counter.theconversation.com/content/182113/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>This work was supported by a grant from the Cornell Institute for Social Sciences (ISS_ATF_F17).</span></em></p>A new study reveals a reliable pathway to make U.S. courtrooms – and senior-level positions – more diverse.Jorgen Harris, Assistant Professor of Economics, Occidental CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1855852022-06-22T23:28:23Z2022-06-22T23:28:23ZWhy was the Brittany Higgins trial delayed, and what is ‘contempt of court’? A legal expert’s view on the Lisa Wilkinson saga<p>The judge in the trial of Bruce Lehrmann, the staffer alleged to have raped Brittany Higgins, ruled on Tuesday, “regrettably and with gritted teeth”, that his trial will need to be delayed.</p>
<p>This was because of the media coverage and social media attention that followed Logie Award-winning journalist Lisa Wilkinson’s acceptance speech (she won a Logie for her coverage on The Project of the Brittany Higgins allegations).</p>
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<p>In <a href="https://www.youtube.com/watch?v=yvMkzu4xe8I">the speech</a>, Wilkinson thanked Higgins for trusting her and The Project team with the story, and for changing the national conversation around allegations of sexual abuse. </p>
<p>Lehrmann’s lawyers successfully argued the speech was a potential “contempt of court”.</p>
<p>Chief Justice Lucy McCallum said:</p>
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<p>“What concerns me most about this recent round is that the distinction between an allegation and a finding of guilt has been completely obliterated… The implicit premise of [the speech] is to celebrate the truthfulness of the story she exposed.”</p>
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<p>One might have thought the exceptional umbrage taken by the courts against the media’s reporting of <a href="https://theconversation.com/why-have-media-outlets-been-fined-more-than-1-million-for-their-pell-reporting-162173">the George Pell case</a> might have made the veteran journalist a little more cautious about referring to matters that are either currently or imminently before the courts.</p>
<p>According to <a href="https://www.skynews.com.au/australia-news/the-projects-lisa-wilkinson-warned-by-prosecutor-her-logies-speech-could-delay-brittany-higgins-court-trial/news-story/53e77bd436ae844343563a9bed0933fc">news reports</a>, Wilkinson had been warned by ACT Director of Public Prosecutions Shane Drumgold that her speech could delay the trial if it made reference to the case, but he reportedly didn’t want to listen when Wilkinson started to read it to him beforehand, offering that prosecutors “are not speech editors”.</p>
<p>Wilkinson reportedly <a href="https://www.news.com.au/entertainment/awards/logies/lisa-wilkinsons-logies-speech-lashed-in-court-as-brittany-higgins-trial-faces-potential-delay/news-story/d84b3775842395cf7c9a9a09c628f45e">told</a> him she was not expecting to win, so the speech would not likely be made.</p>
<p>There’s also the complication that the prosecution reportedly plans to call Wilkinson as a <a href="https://www.theguardian.com/australia-news/2022/jun/21/lawyers-for-brittany-higgins-accused-ask-to-delay-trial-after-lisa-wilkinsons-comments">witness</a> in the trial.</p>
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Read more:
<a href="https://theconversation.com/cleo-smith-interview-does-channel-nine-run-the-risk-of-being-in-contempt-of-court-176459">Cleo Smith interview: does Channel Nine run the risk of being in contempt of court?</a>
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<h2>What is ‘contempt of court’?</h2>
<p>So, what caused the judge to make her ruling to stop the case in its tracks, and list it for trial at a date yet to be determined? </p>
<p>It’s the law designed to ensure all criminal trials are fair and it’s guided by the principles of “contempt of court”.</p>
<p>Contempt of court can arise if any words or actions by the media (or indeed anyone who makes a public statement) are deemed to interfere with the administration of justice, or constitute a disregard for the authority of the court.</p>
<p>The principle of contempt law that pertains to this case is that a jury must decide the guilt or innocence of an accused on the basis of the evidence before them, and not to allow other considerations to taint their deliberations.</p>
<p>This could include commenting publicly on the credibility of a victim’s story, stoking the public’s disdain of an accused by a storm of social media, or calling for a social evil to be tackled. This is referred to as <em>sub judice</em> (“under a judge”) contempt.</p>
<p>Back in February this year, Channel 9 came <a href="https://theconversation.com/cleo-smith-interview-does-channel-nine-run-the-risk-of-being-in-contempt-of-court-176459">perilously close</a> to being in contempt of court after airing material that could have been deemed to have a tendency to prejudice the judge’s consideration of a sentence for the man convicted of kidnapping Western Australian four-year-old Cleo Smith.</p>
<p>There need only be evidence the content – whether it be a media article reporting a speech, a social media post, or some other public discussion – could have a tendency to affect the thinking of the jurors in their deliberations. Actual proof that it did, in fact, influence jurors isn’t required. If successfully argued, a trial can be shifted to another jurisdiction, or delayed, or, potentially, aborted permanently.</p>
<p>That’s what Lehrmann’s lawyers asked the court to consider. “This speech did not need to be made,” his barrister Steve Whybrow said. He added that his client had no interest in delaying the trial, but he wanted it to be a fair trial.</p>
<p>What’s clear is the speech had the potential to prejudice the imminent trial. Justice McCallum ruled the matter would be better dealt with when the dust has settled on Wilkinson’s acceptance speech, and the social media storm has died down. There would not have been a media lawyer in Australia who would have been surprised by the ruling. </p>
<p>The timing of the Logies was unfortunate. Wilkinson should have been counselled more wisely to generalise her remarks.</p>
<h2>Warnings should have been heeded</h2>
<p>Parliaments around Australia are facing growing calls to overhaul their contempt of court laws, with many advocates arguing the status quo does not meet public expectations.</p>
<p>But that’s a broader question about freedom of speech. In this instance, freedom of speech was not an issue. It was clear the case could be prejudiced, and the warnings should have been heeded.</p>
<p>No-one has made the allegation in Australia yet that Wilkinson’s remarks are in contempt of court, and only the judge can rule on that if she be so minded.</p>
<p>Whether there are legal ramifications for Wilkinson remains to be seen, but one could have some sympathy for her. Wilkinson had spoken with Drumgold on June 15 to discuss the evidence that she would give at the trial. Drumgold warned her against commenting publicly on Higgins’ case, but clearly not strongly enough. </p>
<p>Given the costly and annoying rescheduling that is now needed, Drumgold is probably regretting he didn’t simply give Wilkinson a firm “no”.</p><img src="https://counter.theconversation.com/content/185585/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rick Sarre is a member of the SA Council for Civil Liberties and the Australian Labor Party.</span></em></p>Complicating things is the fact the prosecution plans to call Wilkinson as a witness in the trial.Rick Sarre, Emeritus Professor of Law and Criminal Justice, University of South AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1853842022-06-22T01:46:32Z2022-06-22T01:46:32ZHas US-style politicisation of the courts come to Australia?<figure><img src="https://images.theconversation.com/files/469886/original/file-20220620-13772-io83v6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Senators Elizabeth Warren and Patty Murray responding to news that the Supreme Court is poised to overturn the Roe v. Wade decision.</span> <span class="attribution"><span class="source"> J. Scott Applewhite/AP</span></span></figcaption></figure><p>In the landmark 1973 decision of <a href="https://supreme.justia.com/cases/federal/us/410/113/"><em>Roe v Wade</em></a>, the US Supreme Court held that the right to privacy provided by the 14th amendment to the US Constitution protects a woman’s right to choose to have an abortion. Last month, a <a href="https://en.wikisource.org/wiki/Dobbs_v._Jackson_Women%27s_Health_Organization_(draft_opinion)">leaked draft</a> of <em>Dobbs v Jackson Women’s Health Organization</em> revealed that a majority of the Supreme Court is poised to overturn that decision.</p>
<p>How did it come to this? In part, it’s a result of the extreme politicisation of the US judiciary, with judges routinely appointed based on their political views. Many people voted for former US President Donald Trump because he promised to appoint <a href="https://www.npr.org/2018/01/21/579169772/one-year-in-trump-has-kept-a-major-promise-reshaping-the-federal-judiciary">conservative judges</a>. Many others voted for <a href="https://www.pfaw.org/blog-posts/joe-biden-promises-to-nominate-judges-who-look-like-america/">President Joe Biden</a> because he promised to appoint judges that would protect <em>Roe</em> and other progressive laws.</p>
<p>Especially prominent in leading the charge against <em>Roe v Wade</em> and the politicisation of the US courts has been the Federalist Society, a libertarian-conservative legal movement. Founded in 1982, the society has played a major role in “<a href="https://www.politico.com/magazine/story/2018/08/27/federalist-society-yale-history-conservative-law-court-219608/">deliberately, diligently shifting the country’s judiciary to the right</a>”. As well as training and socialising conservative law students, lawyers and professors, the society helps appoint young conservatives to prominent positions in government and on the courts. </p>
<p>The society’s success has been startling. Drawing on an expansive understanding of free speech, it has been influential in <a href="https://supreme.justia.com/cases/federal/us/558/310/">weakening laws</a> that limit how much can be spent on elections (the 2020 US election cost more than <a href="https://www.opensecrets.org/news/2021/02/2020-cycle-cost-14p4-billion-doubling-16/">$14 billion</a>). It has made <a href="https://en.wikipedia.org/wiki/District_of_Columbia_v._Heller">gun control more difficult</a>, almost led to the overthrow of Barack Obama’s signature <a href="https://supreme.justia.com/cases/federal/us/567/519/">healthcare law</a>, and helped gut <a href="https://supreme.justia.com/cases/federal/us/570/529/">voting rights protections</a>. Six of the nine judges on the US Supreme Court are current or former members of the Federalist Society. </p>
<p>Fortunately, political views are not relevant for appointment to the judiciary in Australia. But we must be vigilant: some politicians are publicly agitating for the creation of a similar legal movement here.</p>
<p>In 2020, a majority of the High Court of Australia held that Aboriginal Australians are not “aliens” under the Constitution – even if they were not born in Australia and are not citizens. In the <a href="https://jade.io/j/?a=outline&id=708192"><em>Love; Thoms</em> case</a>, the Court explained that Aboriginal and Torres Strait Islander peoples’ longstanding and deep connection to Country means they cannot be considered as <em>not</em> belonging to the Australian community – even if they don’t hold citizenship. </p>
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Read more:
<a href="https://theconversation.com/indigenous-people-cannot-be-aliens-in-their-own-land-why-challenging-this-fact-again-is-so-concerning-170203">Indigenous people cannot be aliens in their own land. Why challenging this fact (again) is so concerning</a>
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<p>In reaching this decision, the court extended the land-ownership principles of the famous <a href="https://jade.io/j/?a=outline&id=67683"><em>Mabo</em> case</a> to determine who is a member of an Aboriginal group.</p>
<p>Given that few Aboriginal Australians are non-citizens facing deportation, the decision has limited practical consequences. But it infuriated many conservatives in and outside government. Peter Dutton claimed the decision was a stunning example of <a href="https://7news.com.au/politics/dutton-furious-with-high-court-decision-c-706961">judicial activism</a>, while IPA research fellow Morgan Begg called it the “<a href="https://ipa.org.au/publications-ipa/activist-judges-misrepresent-mabo-to-create-privileged-class">most radical judgment in Australian history</a>”. Former LNP senator John Stone even exclaimed that parliament should <a href="https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwjhycyBybv4AhXDTWwGHWqpD1MQFnoECAcQAQ&url=https%3A%2F%2Fwww.theaustralian.com.au%2Finquirer%2Fjudging-the-high-courts-justices%2Fnews-story%2F6c819b096c60180d761d0ca9ab38b2eb&usg=AOvVaw032hJZIDGVlfhOa1H5WGXN">impeach</a> the four judges in the majority. </p>
<p>Former Senator Amanda Stoker was the most forthright. In a <a href="https://static1.squarespace.com/static/596ef6aec534a5c54429ed9e/t/5f2bab650be1946932e7f808/1596697467269/Senator+Amanda+Stoker+Paper+on+Love+June+2020.pdf">paper</a> presented to the conservative Samuel Griffith Society, the assistant minister to the attorney-general (as she then was) praised the work of the US Federalist Society. Drawing on their example, Stoker argued High Court judges should be selected on the basis of ideology with the aim of overturning <em>Love; Thoms</em> in the same way that Republican politicians have stacked the US Supreme court hoping for an overturning of the decision in <em>Roe v Wade</em>.</p>
<p>Stoker may have <a href="https://www.theguardian.com/australia-news/2022/jun/17/pauline-hanson-retains-queensland-senate-seat-as-amanda-stoker-misses-out">lost her Senate spot</a>, but she might succeed in this endeavour. In 2020 and 2021, two justices of the High Court who found in favour of Daniel Love and Brendan Thoms retired, and were duly replaced by Morrison government appointees. Several months later, the federal government petitioned the High Court to overturn <em>Love; Thoms</em>. If the government is successful, some descendants of Australia’s First Nations peoples could be declared “aliens” in the country their people have occupied for more than 60,000 years. </p>
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Read more:
<a href="https://theconversation.com/two-high-court-of-australia-judges-will-be-named-soon-unlike-amy-coney-barrett-we-know-nothing-about-them-147853">Two High Court of Australia judges will be named soon – unlike Amy Coney Barrett, we know nothing about them</a>
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<p>It is not only our highest court that has seen political interference. Although the US Supreme Court receives the most attention, the Federalist Society has been successful at securing conservative judges at all levels of America’s court hierarchy. Similar moves to stack the Administrative Appeals Tribunal (AAT) in Australia have been exposed by a recent Senate inquiry. </p>
<p>The AAT reviews government decisions. Members must be – and be seen to be – independent. However, over the past few years, concerns have been raised about the appointment process. In March this year, the Senate Legal and Constitutional Affairs Committee found that the process of selecting AAT members had been inappropriately influenced by personal connections and political affiliations. Up to <a href="https://www.smh.com.au/politics/federal/terrible-for-democracy-political-appointees-on-aat-skyrocket-under-coalition-20220513-p5al4u.html">40%</a> of those appointed in the last three years by the Morrison government had political backgrounds. The committee <a href="https://parlinfo.aph.gov.au/parlInfo/download/committees/reportsen/024867/toc_pdf/TheperformanceandintegrityofAustralia'sadministrativereviewsystem.pdf;fileType=application%2Fpdf">recommended</a> the current AAT be disbanded and a new system established as a matter of urgency. </p>
<p>The Albanese government should adopt this recommendation. It should also make sure that appointments to all Australian courts and tribunals are made without reference to political ideology. The last thing we need is to follow the US example.</p><img src="https://counter.theconversation.com/content/185384/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Harry Hobbs is a member of the ALP.</span></em></p><p class="fine-print"><em><span>George Newhouse is a member of the ALP, a director of the National Justice Project and a Company Secretary and member of the McKell Foundation. </span></em></p>Are the same forces that threaten the right to abortion in the United States coming to Australia?Harry Hobbs, Senior lecturer, University of Technology SydneyGeorge Newhouse, Adjunct Professor of Law, Macquarie UniversityLicensed as Creative Commons – attribution, no derivatives.