tag:theconversation.com,2011:/uk/topics/law-and-justice-19297/articlesLaw and justice – The Conversation2019-07-17T13:45:49Ztag:theconversation.com,2011:article/1204552019-07-17T13:45:49Z2019-07-17T13:45:49ZThe army is being used to fight Cape Town’s gangs. Why it’s a bad idea<figure><img src="https://images.theconversation.com/files/284493/original/file-20190717-147275-f0gknx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Shaldene Prins is supported by a policewoman at the funeral of her husband who was killed during gang violence. </span> <span class="attribution"><span class="source">Barry Christianson/ New Frame</span></span></figcaption></figure><p>Following the latest <a href="http://www.capetalk.co.za/articles/354084/philippi-cape-town-13-people-killed-in-48-hours">spate of murders</a> on the notorious <a href="http://capeflats.org.za/modules/home/townships.php">Cape Flats</a> in the Cape Town, the South African government has decided to send in the army. </p>
<p>The move has been welcomed by many who want to see an end to the rampant violence, crime and <a href="https://www.thesouthafrican.com/news/western-cape-government-relieved-by-presence-of-sandf/">gangsterism in the province</a>. Cape Town is ranked among the most violent cities <a href="https://businesstech.co.za/news/lifestyle/230123/cape-town-is-one-of-the-most-violent-cities-in-the-world/">in the world</a>.</p>
<p>But, the use of the military to perform law and order functions raises several problems, many of which have long-term implications. The biggest problem is that armies are not trained for law enforcement. They’re trained for warfare and to use maximum force. </p>
<p>This is very different from the law and order duties of the police. The principle of minimum force is alien to a soldier. As the chief of South African National Defence Force General Solly Shoke, recently stated, the army is trained to “skiet and donner” (“shoot and beat up”), <a href="https://www.youtube.com/watch?v=4WZmodrMzFI">not for crime prevention</a>.</p>
<p>The South African government appears to have had little choice but to use the military as the country’s police have been unable to protect citizens against violent crime. A staggering 43 people were killed in Cape Town <a href="https://www.news24.com/SouthAfrica/News/43-killed-in-another-bloody-weekend-in-cape-town-20190715">this past weekend alone</a>.</p>
<p>Deploying soldiers may be effective in suppressing violence. Nevertheless, studies show that using the military in an internal role can exacerbate conflict, <a href="https://theconversation.com/how-using-the-military-in-nigeria-is-causing-not-solving-problems-116676">rather than resolve it</a>. </p>
<h2>Soldiers are trained to kill</h2>
<p>Military training and culture instils in soldiers a particular disposition which shapes and guides their actions and behaviour. Aggressiveness and an <a href="https://www.sciencedirect.com/science/article/pii/S0030438799800556">emotional distancing from the “enemy”</a> enables soldiers to deal with life-or death situations and perform acts that are otherwise considered abhorrent in civilian society. </p>
<p>Nor can the military identity of a soldier – who carries a machine gun rather than a pistol – be switched off by merely placing them in policing roles, without some degree of re-socialisation and training. The <a href="https://www.timeslive.co.za/news/south-africa/2019-07-15-as-army-deployment-is-delayed-43-murdered-over-bloody-cape-town-weekend/">delay</a> in the deployment of the military, announced by Police Minister Bheki Cele last Thursday, <a href="https://www.news24.com/SouthAfrica/News/sandf-says-cele-gave-too-much-away-report-20190713">relates to this</a>.</p>
<p>The soldiers need to receive proper training on police rules and conduct before they can be deployed. Without this they wouldn’t know how to react when confronted with heavily armed gang members. </p>
<p>The soldiers will be under <a href="https://www.news24.com/SouthAfrica/News/watch-troops-undergo-mission-ready-training-ahead-of-cape-flats-deployment-20190715">the command of the police</a> in the crime fighting operation. But differences in organisational cultures, procedure and equipment, could prove to be highly problematic. In addition, unlike the police, the military is typically unfamiliar with the terrain, street conditions, public attitudes and reactions of civilians.</p>
<p>Whether or not the deployment succeeds will depend on the conduct of the military, their methods of coercion and whether they act in an impartial and professional manner. The rules of engagement need to be very clear to ensure that they do not use excessive force, or violate the human rights of citizens. </p>
<p>Parameters must be set to ensure that the use of force is proportional to the threat posed to contain a situation. Force should only be used when all other means have failed, and where there is evidence of hostile intent. And, such use of force should be of limited duration, and only employed as a protective measure. </p>
<h2>Threat of militarisation</h2>
<p>The last thing the country can afford is a return to what happened during the apartheid era, when citizens were at the mercy of the state security forces, with hardly any <a href="https://journals.sagepub.com/doi/10.1177/0021909614541086?icid=int.sj-abstract.similar-articles.1">civilian oversight and accountability</a>.</p>
<p>There are also wider social ramifications. On the one hand, failure to intervene by the state may result in citizens forming their own armed groups that offer them <a href="https://www.tandfonline.com/doi/full/10.1080/03057070500370589">security and protection</a>. Any increase in vigilantism has the potential to further escalate violence, as citizens come to <a href="https://issafrica.org/iss-today/is-mob-violence-out-of-control-in-south-africa">take the law into their own hands</a>.</p>
<p>On the other hand, further calls to deploy the military throughout the country could foster a culture of militarism. This, in turn, could be linked to broader social processes of militarisation within society at the economic, <a href="http://pdfproc.lib.msu.edu/?file=/DMC/African%20Journals/pdfs/transformation/tran010/tran010010.pdf">political and ideological levels</a>. </p>
<p>On the economic level, militarisation is associated with the increased spending on defence. At the political level, the involvement of the army in law and order duties can result in them being afforded <a href="https://www.csvr.org.za/index.php/component/content/article/1442-vigilantes-a-contemporary-form-of-repression.html">extra-ordinary powers</a> to institute <a href="http://www.lse.ac.uk/international-development/Assets/Documents/PDFs/csrc-working-papers-phase-one/wp43-rethinking-militarism-in-post-apartheid-south-africa.pdf">violence and repression </a>.</p>
<p>Ideologically, this can <a href="https://www.csvr.org.za/publications/1573-political-pawns-or-social-agents-a-look-at-militarised-youth-in-south-africa">perpetuate</a> an already established culture of violence as an effective means of achieving objectives.</p>
<p>Where there is a culture of resorting to the use of force to restore peace and security, it undermines the need to seek other alternatives. Nor does it address the underlying causes of conflict, which ultimately results in the military being deployed for prolonged periods, or even permanently, to prevent the return to violence. </p>
<h2>A constabulary force</h2>
<p>There are no simple solutions. But perhaps it is time to consider whether South Africa needs a constabulary force, or gendarmerie. These are hybrid police-military forces more suited for the maintenance of public order functions, rather than the military.
Countries that have established constabularies, or gendarme, include <a href="https://mns.gov.jm/content/jamaica-constabulary-force">Jamaica</a>, Spain (<a href="https://www.britannica.com/topic/Civil-Guard">Guardia Civil</a>), France (<a href="http://www.nspcoe.org/welcome/french-gendarmerie-nationale">Gendarmerie</a>) and Italy (<a href="https://www.bbc.com/news/magazine-28254297">Carabinieri</a>). Countries like Canada’s <a href="http://www.rcmp-grc.gc.ca/en">Royal Canadian Mounted Police</a> and the US’s <a href="https://www.theguardian.com/world/2014/aug/18/what-is-national-guard-ferguson-missouri">National Guard</a> have been set up on a similar basis. </p>
<p>There has been an increase in the use of these forces due to the reluctance to deploy the military to combat internal threats. They are widely used in internal security and peacekeeping operations due to their ability to deal with threats posed by armed groups and other forms of violence that the police are <a href="https://issat.dcaf.ch/download/14295/163648/SSR_Paper_7%20(1).pdf">unable to deal with</a>. </p>
<p><em>Lindy Heinecken is the author of a forthcoming book, “South Africa’s post-apartheid military: Lost in Transition and Transformation”, to be published shortly by UCT/Juta and Springer Press.</em></p><img src="https://counter.theconversation.com/content/120455/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lindy Heinecken 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 biggest problem with using the military to fight rime is that soldiers are not trained for law enforcement, but warfare, using maximum force.Lindy Heinecken, Chair of the Department of Sociology and Social Anthropology, Stellenbosch UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1089472019-01-21T13:40:47Z2019-01-21T13:40:47ZThe CAR provides hard lessons on what it means to deliver real justice<figure><img src="https://images.theconversation.com/files/253637/original/file-20190114-43525-1gdlngs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Many have been displaced by violence in the Central African Republic. </span> <span class="attribution"><span class="source">EPA/Stringer</span></span></figcaption></figure><p>The conundrum facing justice in the Central African Republic (CAR) was well summed up by Jean Pierre Waboe, Vice-president of the country’s Constitutional Court, whom I interviewed:</p>
<blockquote>
<p>In a situation whereby the state does not exist, injustice becomes the norm. Anybody can set about doing anything. </p>
</blockquote>
<p>The breakdown of state control since the resurgence of conflict in 2013 has had drastic consequences for the possibility of any forms of governance – political, economic or legal in CAR. </p>
<p>Under these circumstances, the need for “justice” has become more crucial. For Waboe, however, the problem of justice in the country is that it’s seen as too formal, too distant, too complex, and too slow to respond to what’s needed. For justice to work, a country needs a judiciary system that’s functioning, legitimate and credible. And that can deliver justice that’s immediate, operative and helps populations to reconnect torn relationships. A justice that, for him, can “dry tears”. </p>
<p>The question that keeps getting asked is: what justice is possible in a climate of impunity? And indeed in times of war.</p>
<p>The CAR’s Special Criminal Court is the site of protracted struggle over the meaning, and the feasibility of justice. In the absence of a functioning judicial system, the establishment of a <a href="http://www.cps-rca.cf/sites/default/files/inline-files/Loi%20_%20Cour%20p%C3%A9nale%20sp%C3%A9ciale%20_.pdf">tribunal in 2015</a>
was an unprecedented initiative. Yet, the precarious conditions of its existence make it a promise that teeters on the ledge of collapse. </p>
<p>The special court is something of an experiment. Unlike previous ad hoc tribunals such as Yugoslavia and Rwanda, it isn’t meant to constitute an alternative or competitor to the International Criminal Court (<a href="https://www.icc-cpi.int/iccdocs/pids/publications/uicceng.pdf">ICC</a>). Rather, it’s role is to complement the ICC’s ongoing investigations into alleged war crimes and crimes against humanity. If successful, <a href="https://justiceinconflict.org/2015/05/14/why-central-african-republics-hybrid-tribunal-could-be-a-game-changer/">the hope</a> is that it could become a model of shared prosecuting authority across domestic and international judicial regimes for grave crimes. </p>
<h2>Fraught with difficulties</h2>
<p>The mandate of the court is to prosecute crimes committed since 2003 including rape and sexual violence, widespread crimes and material destruction. Human Rights Watch found that some of the most egregious and brutal crimes have been committed since <a href="https://www.hrw.org/report/2018/05/17/looking-justice/special-criminal-court-new-opportunity-victims-central-african">the breakout of the civil war in 2013</a>. And yet, no form of justice has been offered and no one prosecuted. </p>
<p>The temporary nature of the special court’s mandate sits at odds with the fact that violence is ongoing. In the provinces outside of Bangui and the South West, a plethora of armed groups offer “protection” one day, the next they repress. They raze villages, extract rare minerals, levy tax, loot humanitarian supplies, kidnap people for ransom, set up racket schemes and impose tolls to trucks and people. </p>
<p><a href="https://www.tandfonline.com/doi/abs/10.1080/13600820701562843?src=recsys&journalCode=cgsj20">Many scholars view</a> special courts as part of the liberal peace building treatment package and in that sense a part of a broader agenda of social transformation of post-conflict societies.</p>
<p>But the CAR’s current volatile conditions render the very administration of justice a dangerous endeavour. Judges and witnesses have to be protected; the domestic judiciary personnel lacks experience in investigating crimes against humanity and the judiciary system itself is vulnerable to “instrumentalisation”, that is its misuse for political or other ends. Deterring fighters from committing grave crimes or recidivists from committing further crimes is one thing. Restoring confidence, trust and respect for the justice system is another. How are ordinary people to respond when it’s clear that the assessment of crimes happens against a backdrop of entrenched hierarchies based on ethnicity, political and religious affiliation, and economic capacity? </p>
<p>There are a host of additional problems too. For instance, the recruitment of young people into armed groups has gone unabated. According to the United Nations’ Children and Armed Conflict report, <a href="https://reliefweb.int/report/world/children-and-armed-conflict-report-secretary-general-a72865-s2018465-enar">the number of young recruits quadrupled</a> in 2017 relatively to 2016.</p>
<p>The reality is that, for victims, the promise of justice is a spectrum that carries both risks and possibilities. </p>
<p>The court, for instance, regulates the forms, spaces, styles and even the emotional structure of victim testimony. And the convention of legal proceedings – the use of codified language and formal rules of presentation and evidence for example – leave victims, most of whom are illiterate, further marginalised. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/251933/original/file-20181222-103657-1vcq1gs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/251933/original/file-20181222-103657-1vcq1gs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=338&fit=crop&dpr=1 600w, https://images.theconversation.com/files/251933/original/file-20181222-103657-1vcq1gs.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=338&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/251933/original/file-20181222-103657-1vcq1gs.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=338&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/251933/original/file-20181222-103657-1vcq1gs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/251933/original/file-20181222-103657-1vcq1gs.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/251933/original/file-20181222-103657-1vcq1gs.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">
<figcaption>
<span class="caption">CAR’s Special Criminal Court.</span>
<span class="attribution"><span class="source">Supplied by author.</span></span>
</figcaption>
</figure>
<p>A further complication is that war criminals seem to have little to fear from United Nations forces given the latter’s limited mandate. Besides, atrocities have been committed by all parties involved. The <a href="https://www.icc-cpi.int/car/bemba?ln=fr">acquittal</a> of Jean Pierre Bemba by the ICC remains a great puzzle for those that have witnessed the atrocities committed by his troops in CAR. </p>
<p>This poses the question of the criteria and line of priority that are to guide future prosecutions. </p>
<h2>The alternatives</h2>
<p>Is there an alternative to lengthy and costly procedures and imprisonment? For Walidou, a legal scholar who has taught at the University of Bangui for many years, there is:</p>
<blockquote>
<p>Give to each [former fighter] a modest income, a decent uniform and integrate them in an auxiliary unit to calm them down and they will leave armed groups.</p>
</blockquote>
<p>For Walidou, by taking back youngsters, the state can gather information on logistics, the circulation of weapons, the exploitation of resources, the means of supply to armed groups, and other information that it currently doesn’t have.</p>
<p>The imperative for a justice that restores what has been broken, and the need to make examples of perpetrators who have been captured, can pull in different directions. In fact, they run the risk of cancelling out each other. </p>
<p>What this points to is the need to better understand the sociology of the conflict, to assess the role of justice in relation to the peace process and to reconstruction more generally. This could, for example, mean considering the role of amnesty and moratoria as well as non-legal mechanisms in national reconciliation.</p><img src="https://counter.theconversation.com/content/108947/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Amy Niang received a grant to cover a research trip to the Central African Republic as part of the Uncovering Security Story Lab programme supported by the Thomson Reuters Foundation, the Stanley Foundation and the Gerda Henkel Stiftung.</span></em></p>The volatile conditions in the Central African Republic make the administration of justice difficult.Amy Niang, Visiting Professor at the University of Sao Paulo and Senior Lecturer in International Relations, University of the WitwatersrandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1017242018-08-22T02:02:57Z2018-08-22T02:02:57ZExplainer: How does mental illness affect sentencing?<figure><img src="https://images.theconversation.com/files/233002/original/file-20180822-149487-1fpgxei.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">shutterstock</span> </figcaption></figure><p>Just last week, the <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSCA/2018/205.html">Victorian Court of Appeal</a> significantly <a href="https://www.theage.com.au/national/victoria/sentence-cut-for-mum-who-killed-three-of-her-kids-by-driving-into-lake-20180816-p4zxsb.html">reduced the sentence</a> given to Akon Guode, a mother who killed three of her children after driving her car into a lake in Melbourne. The main reason for the 8½ year sentence reduction was that the trial judge had not sufficiently taken Guode’s major depression into account. </p>
<p>While the circumstances of this offence were unusual, it is <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Former_Committees/mentalhealth/report/c13">common</a> for offenders to have mental health problems. <a href="https://www.aihw.gov.au/reports/prisoners/health-of-australias-prisoners-2015/contents/mental-health-of-prison-entrants">Surveys</a> have shown that almost half of Australian prison entrants report being affected by a mental disorder. With that in mind, how are mental health issues taken into account during the criminal justice process?</p>
<p>In rare cases, people with mental health problems may be found <a href="http://www.lawreform.vic.gov.au/content/4-unfitness-stand-trial">unfit to stand trial</a>, or <a href="http://www.lawreform.vic.gov.au/content/5-defence-mental-impairment">not guilty due to their mental impairment</a>. However, in most cases, people with mental health problems will stand trial (or plead guilty) in the ordinary way and if convicted, they will face the normal sentencing process.</p>
<p>Where this happens, the sentencing judge must decide whether to take the offender’s mental health problems into account. There will be a sentencing hearing, in which evidence of the offender’s mental health condition will be presented. The judge must consider this evidence, as well as the relevant sentencing principles, in reaching a verdict.</p>
<p><a href="https://www.researchgate.net/publication/232915033_Sentencing_Offenders_with_Impaired_Mental_Functioning_Developing_Australia's_Most_Sophisticated_and_Subtle_Analysis">Around Australia</a>, the sentencing principles in this area are known as the <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSCA/2007/102.html?context=1;query=verdins;mask_path=">Verdins principles</a>. These principles state that a mental impairment may affect a sentence in six ways:</p>
<p><em><strong>1. It may reduce an offender’s “moral culpability” or blameworthiness for the offence.</strong></em> </p>
<p>This will only be the case where there was a link between the mental health condition and the offence. For example, the condition may have impaired the offender’s ability to think clearly about the offending behaviour. In such circumstances, there is less need to denounce the relevant conduct or to punish the perpetrator as harshly.</p>
<p><em>2. <strong>A mental impairment may affect the <a href="https://www.researchgate.net/publication/327062028_Mandated_Treatment_as_Punishment">kind of sentence</a> that is imposed or its conditions.</strong></em> </p>
<p>For example, it may provide a reason for <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2008/254.html?context=1;query=bernstein%202008%20vsc%20254;mask_path=">suspending an offender’s sentence</a>, or for requiring an offender to get <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2008/258.html?context=1;query=R%20v%20Fitchett;mask_path=">treatment</a>.</p>
<p><em>3. <strong>The offender’s mental health condition may make him or her an unsuitable vehicle for sending a deterrent message to the community.</strong></em> </p>
<p>One circumstance in which this may be the case is where the offender’s condition is likely to attract community <a href="https://www.researchgate.net/publication/232915033_Sentencing_Offenders_with_Impaired_Mental_Functioning_Developing_Australia's_Most_Sophisticated_and_Subtle_Analysis">sympathy</a>.</p>
<p><em>4. <strong>The offender’s mental impairment may make it inappropriate to send him or her a deterrent message.</strong></em> </p>
<p>One <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2007/309.html?context=1;query=R%20v%20Curtain%202007%20VSC%20309%20%20%20;mask_path=">example</a> of this is where the offender has an impaired capacity to learn from the court’s statements.</p>
<p><em><strong>5. An offender’s mental health condition may result in punishment weighing more heavily on him or her than it would on a person in normal health.</strong></em> </p>
<p>This provides a reason for reducing the level of punishment.</p>
<p><em><strong>6. There may be a serious risk that imprisonment would cause a deterioration in the offender’s mental health.</strong></em> </p>
<p>This also provides a basis for imposing a more lenient sanction.</p>
<p>While not included in the Verdins principles, mental health problems may also affect an offender’s perceived prospects for <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSCA/2008/203.html?context=1;query=Weidlich%20%20;mask_path=">rehabilitation</a>. This will often depend on whether the relevant condition is considered treatable.</p>
<p>Each of these principles is mitigating – they point towards a more lenient sentence being given. However, it is also possible for a mental health condition to point towards the need for a more severe sentence. This will be the case where the community is seen to require protection from the offender due to that condition. <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSCA/2007/217.html?context=1;query=%5b2007%5d%20VSCA%20217;mask_path=">For example</a>, the offender’s condition may be considered untreatable, and his or her criminal behaviour unlikely to change as a result.</p>
<p>It will sometimes be the case that an offender’s mental health condition will provide reasons for both reducing and increasing an offender’s sentence. In such cases, the judge will need to balance all of the conflicting considerations and determine the most appropriate sentence.</p>
<p>The Verdins principles applies to any kind of mental disorder or abnormality, and have been used for offenders suffering from <a href="https://www.researchgate.net/publication/232915033_Sentencing_Offenders_with_Impaired_Mental_Functioning_Developing_Australia's_Most_Sophisticated_and_Subtle_Analysis">many different conditions</a> including schizophrenia, depression and bipolar disorder.</p>
<p>In some cases, there does not even need to be a <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSCA/2007/102.html?context=1;query=verdins;mask_path=">diagnosed mental illness</a>. What matters is how the condition affected the offender at the time of the offending, or is likely to affect him or her in the future. However, it is important to note that the principles do not apply to <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSCA/2014/145.html?context=1;query=Reid%20paedophilia;mask_path=">paedophilia</a> or <a href="https://www.researchgate.net/publication/320266701_Sentencing_offenders_with_personality_disorders_A_critical_analysis_of_DPP_Vic_v_O'Neill">personality disorders</a>.</p>
<p>Some <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2015/180.html?context=1;query=miller%20verdins;mask_path=">concern</a> has been expressed about how frequently the Verdins principles are raised in sentencing hearings. However, the <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSCA/2011/231.html?context=1;query=mune;mask_path=">courts</a> have been careful to ensure the principles are only applied after careful scrutiny of the evidence.</p>
<p>Ultimately, if a person with mental health problems is sent to prison, there should be treatment available to them. All Australian jurisdictions have <a href="http://qcmhr.uq.edu.au/wp-content/uploads/2018/04/PMHS-NATIONAL-SURVEY-FINAL_20180416.pdf">in-reach mental health services</a> in their prisons that are similar to the government mental health services that exist in the community. There are also dedicated forensic mental health hospitals that acutely ill prisoners can be transferred into, such as the <a href="http://www.forensicare.vic.gov.au/our-services/thomas-embling/">Thomas Embling Hospital</a> in Victoria.</p>
<p>Courts have <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/1978/16.html?context=1;query=channon;mask_path=">noted</a> that sentencing offenders with mental health problems is inevitably difficult. Many different sentencing considerations must be taken into account, some of which pull in different directions. While perhaps not <a href="https://www.researchgate.net/publication/232915033_Sentencing_Offenders_with_Impaired_Mental_Functioning_Developing_Australia's_Most_Sophisticated_and_Subtle_Analysis">perfect</a>, the Verdins principles currently provide the most nuanced approach to this complex issue that needs to be tackled fairly and with sensitivity.</p><img src="https://counter.theconversation.com/content/101724/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jamie Walvisch 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 Verdins principles affect the way offenders with mental health problems are sentenced in a court of law.Jamie Walvisch, Lecturer, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/994782018-07-06T15:04:03Z2018-07-06T15:04:03ZPoland’s judges forced into retirement purgatory – another blow to justice<p>It was always going to be a hard task to rebuild judicial independence in Poland. Throughout some 40 years of communist rule, an independent justice system was incompatible with the way the state was governed. For example, rulings by the judges in the High Court could be overturned by the state. The position of the judiciary was not a stable one, and the third branch of power was certainly not recognised as such.</p>
<p>Now, the Polish government has again destabilised the judiciary, introducing a new law that has forced 27 of Poland’s 72 Supreme Court judges into retirement by lowering the retirement age from 70 to 65. This includes the president of the Supreme Court, Małgorzata Gersdorf, who <a href="https://www.theguardian.com/world/2018/jul/04/poland-supreme-court-head-malgorzata-gersdorf-defies-retirement-law">has defied the law</a> by continuing to come to work. She addressed the crowds protesting against the new law, saying: “I hope that legal order will return to Poland.” In her view, all the years of commitment to building democracy have been swept away, unconstitutionally, and this is causing irreparable damage. </p>
<p>Gersdorf is right to be concerned, and it seems a good portion of Poles are worried too, as crowds have taken to the streets to protest the new law. The governing Law and Justice party (Prawo i Sprawiedliwość, or PiS) has also mandated the creation of a judicial disciplinary chamber, on the grounds that the judiciary is corrupt and operates on nepotism. </p>
<h2>Rebuilding democracy</h2>
<p>Do the claims of PiS have any merit? It’s important to resist generalisations. It would be a mistake to dismiss all communist judges as servile puppets, unable to apply the law in a just fashion, according to due process. Under communism, many Polish judges, like Gersdorf, were <a href="http://www.research.lancs.ac.uk/portal/en/publications/-(0614fe0e-0459-49b9-90bf-58a16c67f798).html">members of the opposition movement</a>, Solidarność, and <a href="http://www.research.lancs.ac.uk/portal/en/publications/-(c032932d-3929-4cdc-b9ea-9ffb44c4a91f).html">resisted the draconian laws</a> that were introduced to stifle political opponents under martial law (lasting 1981 to 1983) as best they could. </p>
<p>Polish judges continued with their careers after the fall of communism in 1989, and many went on to re-establish the rule of law as part of the bench on the Supreme Court and the Constitutional Tribunal. Former tribunal judges, such as Ewa Łetowska (who was also the country’s first human rights commissioner) and Andrzej Rzepliński have played an integral role in rebuilding a democratic Poland – one that adheres to the rule of law. </p>
<p>Both judges contributed to landmark decisions during their judicial tenures. Both were part of the 1989 enthusiasm about a democratic Poland. In fact, at the 1989 Polish roundtable talks – where negotiations between the outgoing communist government and opposition leaders occurred – Polish lawyers were the ones to <a href="http://www.research.lancs.ac.uk/portal/en/publications/-(c032932d-3929-4cdc-b9ea-9ffb44c4a91f).html">bring a motion</a> for ensuring judicial independence was guaranteed.</p>
<h2>A return to the past</h2>
<p>This new law is the third in a series of reforms set in motion by PiS, which are <a href="https://theconversation.com/poland-in-peril-a-legal-expert-on-why-democracy-is-threatened-and-what-that-means-for-europe-81630">effectively dismantling judicial independence</a> in Poland. For example, the National Council of the Judiciary, which nominates judges, has already been reformed to accommodate PiS, ensuring that further judicial reforms will not be blocked. The president of the National Council of the Judiciary, Dariusz Zawistowski, <a href="https://www.dw.com/en/poland-head-of-judiciary-watchdog-resigns-in-protest/a-42127723">resigned in protest</a>.</p>
<p>Since 1989, various political parties alleged corruption on the part of the communist-trained and communist-educated judiciary. They referred to “telephone justice” – a form of corruption that characterised communist rule. Telephone justice operated through a few key members of the judiciary, <a href="http://www.research.lancs.ac.uk/portal/en/publications/-(0614fe0e-0459-49b9-90bf-58a16c67f798).html">who were politically subservient</a> to the communist party, and complied with orders given by party officials on how to decide politically sensitive cases. </p>
<p>In 1997, an important reform was passed to address these concerns; it also set out the conditions for judges’ retirement. It represented a return to pre-World War II legislation, in an effort to bolster judicial prestige and introduce stability into the judiciary. The 1997 law introduced established several offences, which judicial officials could have committed – such as collaboration with the secret police – which could lead to forced retirement or a review of pensions. The National Council of the Judiciary conducted a review and identified judges who met the criteria.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/226496/original/file-20180706-122259-zsyq1n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/226496/original/file-20180706-122259-zsyq1n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/226496/original/file-20180706-122259-zsyq1n.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/226496/original/file-20180706-122259-zsyq1n.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/226496/original/file-20180706-122259-zsyq1n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/226496/original/file-20180706-122259-zsyq1n.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/226496/original/file-20180706-122259-zsyq1n.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Rebuilding Poland’s Supreme Court, completed in 1999.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/davidberkowitz/8718355095/sizes/l">David Berkowitz/Flickr.</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>In 1998, a further amendment introduced disciplinary measures against judges who rendered unjust rulings. Some 30 cases concerning 48 judges were heard before a disciplinary court. The reports from the disciplinary proceedings show the careful scrutiny that was afforded to each case. Adam Strzembosz, former president of the Supreme Court, <a href="http://www.research.lancs.ac.uk/portal/en/publications/-(0614fe0e-0459-49b9-90bf-58a16c67f798).html">fought hard</a> to support such a policy. He also held that the mistakes of a few cannot justify writing off the judiciary as corrupt, or falling sway to the powerful feelings of outrage, which understandably emerge when confronted with the miscarriage of justice. How prescient his words were.</p>
<p>As I <a href="http://www.research.lancs.ac.uk/portal/en/publications/-(c032932d-3929-4cdc-b9ea-9ffb44c4a91f).html">have argued elsewhere</a>, for Poland, a re-evaluation of the past could involve a personal or official judicial verification process, that can result in criminal prosecution. This would, in a sense, free the profession from the taint of the past. But equally, it presents opportunities for certain members of the government to control and subordinate the judiciary.</p>
<p>As it stands, Poland is divided over the future of its judges, and their role in creating a just society. Yet the latest developments display a return to old habits; namely manipulating judges and hindering any progress towards a viable third branch of power. The PiS will next turn its attention to the human rights commissioner, Adam Bodnar, who has already had his budget cut and lost his judicial immunity, leaving him vulnerable to dismissal. </p>
<p>Losing the country’s constitutional authority for the protection of civil liberties and human rights will come at a high costs to every individual’s liberties and rights. It can only be hoped the Polish people will continue to fight for their rights, and look to the European Union as it takes <a href="https://theconversation.com/article-7-sanctions-a-legal-expert-explains-the-eus-nuclear-option-81724">ever more drastic measures</a> to curb the state’s breaches of what is at the heart of European values - the rule of law.</p><img src="https://counter.theconversation.com/content/99478/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Agata Fijalkowski 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>With it’s latest reforms, Poland’s leading Law and Justice party is hindering any progress towards a viable judiciary.Agata Fijalkowski, Senior Lecturer, Lancaster Law School, Lancaster UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/724022017-02-03T14:54:31Z2017-02-03T14:54:31ZSupersize Warsaw: why?<figure><img src="https://images.theconversation.com/files/155458/original/image-20170203-13978-nld1a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/impossibleisnothing/2321235234/sizes/l">Christ0ff/Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span></figcaption></figure><p>Poland’s ruling Law and Justice party <a href="https://www.bloomberg.com/politics/articles/2017-02-02/warsaw-gets-bigger-than-london-anything-to-help-win-elections">has announced</a> plans to add 32 new municipalities to the city of Warsaw. This would increase the area of the city fivefold, making it significantly larger than Greater London with less than a third of the population. The move has been labelled <a href="http://uk.reuters.com/article/uk-poland-politics-warsaw-idUKKBN15H20P">a power grab</a> by the city’s mayor Hanna Gronkiewicz-Waltz, as it could help Law and Justice gain control over the city in next year’s local elections. </p>
<p>Political machinations aside, though, could the plan actually make Warsaw a better city for its residents? </p>
<p>If the goal is economic growth, then there would need to be clear signals that a larger urban area would attract both businesses and households. True, there is <a href="https://www.weforum.org/agenda/2016/04/how-much-economic-growth-comes-from-our-cities/">strong evidence</a> that large cities are a key source of productivity and economic dynamism. But it does not follow that making cities larger makes them more successful. </p>
<p>In fact, it’s probably the other way around: successful cities tend to grow economically – and that growth leads to them become large cities. While there are examples, notably in China, where entire, pre-planned cities <a href="http://www.economist.com/news/briefing/21648567-chinese-growth-losing-altitude-will-it-be-soft-or-hard-landing-coming-down-earth">have been successful</a> in many respects, there’s a real risk of pre-planned cities becoming <a href="http://www.forbes.com/sites/kenrapoza/2015/07/20/what-will-become-of-chinas-ghost-cities/#5ed692e751b7">ghost cities</a> – boarded-up shells of what might have been. </p>
<p>In democratic, capitalist societies, cities tend to grow or contract depending on economic expansion or decline. For example, the shrinkage of Glasgow and Sheffield in the UK was not promoted or planned – it came about as a result of the grinding poverty and lack of opportunities associated with industrial decline, which caused people to seek their fortune elsewhere. </p>
<h2>Going large</h2>
<p>So what drives the growth of cities? Economists highlight the importance of “urban agglomeration”: in other words, the economic benefits of firms being located close together. If a particular cluster of firms becomes very successful – perhaps due to new technology or proximity to cutting-edge research outfits – this attracts skilled workers to the area and makes the commercial sector all the more competitive. This, in turn, attracts more firms and more skilled workers, leading to a virtuous circle of increasing productivity and prosperity.</p>
<p>So, a critical issue for Poland is whether there are clear agglomeration economies to be exploited through expansion. If, for example, Warsaw’s economy is currently bursting at the seams – with rocketing house prices and spiralling commercial land values, say – and the only thing constraining urban expansion is planning restrictions (such as the greenbelt around London), then it would make sense to lift these restrictions and plan for expansion in a rational and coordinated way. </p>
<p>This would help to relieve upward pressure on property prices, making the city cheaper for residents and helping firms to become more competitive. But without clear signs of growing agglomeration economies, planned expansion may not be met by actual expansion – at least not of the sort associated with some of the world’s most economically successful cities. </p>
<p>It’s also worth considering the impact that Warsaw’s growth might have on other parts of the country. The UK experience <a href="http://www.dannydorling.org/wp-content/files/dannydorling_publication_id4756.pdf">suggests that</a> concentrating wealth and economic activity in a single city can lead to <a href="http://www.regionalstudies.org/uploads/documents/SRTUKE_v16_PRINT.pdf">higher levels of inequality</a> for the country as a whole. What’s more, as property prices rise, low-income families <a href="http://www.tandfonline.com/doi/full/10.1080/24694452.2016.1213156">are pushed</a> further away from the city centre, making it harder to access jobs and amenities. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/155459/original/image-20170203-14009-1qe9k4s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/155459/original/image-20170203-14009-1qe9k4s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/155459/original/image-20170203-14009-1qe9k4s.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/155459/original/image-20170203-14009-1qe9k4s.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/155459/original/image-20170203-14009-1qe9k4s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/155459/original/image-20170203-14009-1qe9k4s.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/155459/original/image-20170203-14009-1qe9k4s.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">
<figcaption>
<span class="caption">The London bubble.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/nasamarshall/8455431927/sizes/l">NASA's Marshall Space Flight Centre/Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc/4.0/">CC BY-NC</a></span>
</figcaption>
</figure>
<p>Such inequalities can worsen political and social divides. London has essentially become a country of its own, with distinctive culture, demographics and social networks. Indeed, <a href="http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0014248">recent research</a> looking at the patterns of telephone calls shows that Londoners rarely make calls to other parts of the UK. </p>
<p>So, even if the expansion of Warsaw was successful for the city, it could be a zero sum game for the country as a whole, due to rising inequality and deepening social divides. </p>
<h2>Going green</h2>
<p>Perhaps the motivation behind the Law and Justice party’s plan is environmental: increasing population density could help to reduce carbon emissions. Yet the evidence for environmental benefits of this kind of urban expansion is mixed, to say the least. </p>
<p>If the addition of 32 new municipalities results in urban sprawl, this will increase commuting distances and carbon emissions. Also, if urban expansion comes at the cost of depopulation in smaller towns and rural areas, the carbon emissions from the depopulated areas can <a href="http://www.openpop.org/?p=813">remain surprisingly persistent</a> – a fact that is often overlooked. </p>
<p>Even if increased population density is achieved, some of the most <a href="http://www.tandfonline.com/doi/abs/10.1080/01944363.2012.666731">sophisticated models</a> of city structure and carbon emissions suggest relatively modest gains, compared with say a well-coordinated network of medium sized towns and small cities. This may be partly due to the congestion and traffic jams that plague large cities, which can greatly reduce energy efficiency. </p>
<p>Also, some sources of renewable energy work best for relatively small population centres. This is partly due to energy storage issues. While it might be feasible to build an energy storage facility to regulate the energy supplied by wind turbines for a small city or town, this might not be possible on a larger scale. There are also the <a href="https://theconversation.com/take-a-deep-breath-heres-what-2016-revealed-about-the-deadly-dangers-of-air-pollution-70375">health impacts</a> of pollution associated with large cities, which need to be taken into account.</p>
<p>The truth is, neither economic growth nor environmental improvement are guaranteed rewards of urban expansion. In fact, increasing the size of Warsaw on such an ambitious scale could cause problems that affect the whole country for many years to come. Of course, the proposed changes may amount to nothing more than tinkering with municipal borders for political ends. Gerrymandering is never a desirable political endeavour. But in this case, it might be preferable to misplaced plans for urban expansion.</p><img src="https://counter.theconversation.com/content/72402/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gwilym Pryce is on the Economic Advisory Panel for Defra. He currently has a number of research projects funded by the Economic and Social Research Council.</span></em></p>The Law and Justice party are making a grab for the Polish capital, by making it massive, but ultimately residents may pay the price.Gwilym Pryce, Professor of Urban Economics and Social Statistics and Director of the Sheffield Methods Institute, University of SheffieldLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/666522016-10-07T14:00:33Z2016-10-07T14:00:33ZThe battle over abortion rights in Poland is not over<p>After a week during which mass street protests erupted in Poland against a proposed new law banning abortions, on October 6 politicians backtracked on the plans and the <a href="http://www.bbc.co.uk/news/world-europe-37573938">parliament voted</a> to reject the law. But, despite the victory for pro-choice campaigners, Poland is still left with some of the most restrictive abortion laws in Europe – and further restrictions have been proposed. </p>
<p>Abortion is currently only legally permissible under certain strict conditions in Poland. If the pregnancy constitutes a threat to the life or health of a woman, if prenatal examination indicates heavy, irreversible damage of the embryo, or if an incurable illness threatens the embryo’s viability, then it is legal. It is also legal if there is justified suspicion that the pregnancy is the result of an illegal act – but that must be confirmed by a prosecutor. </p>
<p>The <a href="http://www.sxpolitics.org/frontlines/book/pdf/capitulo5_poland.pdf">law was briefly relaxed</a> in 1996 to allow for abortions on social grounds until the 12th week of pregnancy. But that decision was ruled unconstitutional a year later and the country reverted to previous legislation. The Federation for Women and Family Planning <a href="http://www.reuters.com/article/us-poland-abortion-idUSTRE67P46Z20100826">has estimated</a> that around 150,000 illegal abortions are carried out each year, while legal abortions number only around 1,000 per annum.</p>
<p>Despite this, the “Stop Abortion” coalition and conservative Christian think-tank Ordo Iuris, <a href="http://www.thetablet.co.uk/news/5384/0/polish-women-walk-out-of-catholic-churches-in-protest-at-bishops-call-for-stricter-abortion-laws-">backed by Roman Catholic Bishops</a>, collected <a href="http://www.bbc.co.uk/news/world-europe-37449903">more than 400,000 signatures</a> to submit a bill to the Polish parliament that would ban abortion completely. This included criminalising miscarriage in “suspicious” circumstances – both for the pregnant woman and anybody assisting her – and in effect preventing pre-natal tests altogether. Meanwhile, a liberalisation bill was tabled by the “Save Women” pro-choice coalition, that would change the law to allow abortions until the 12th week of pregnancy. </p>
<p>In late September, the Polish parliament rejected the liberalisation bill and <a href="http://www.telegraph.co.uk/news/2016/09/23/polish-mps-back-near-total-ban-on-abortion-which-could-see-women/">passed the restrictive abortion bill</a> to its Justice and Human Rights Committee for further consideration. Although the bill was not sponsored by the conservative, Church-affiliated ruling Law and Justice (PiS) party, every single one of its deputies voted in favour. </p>
<h2>Anger mounts</h2>
<p>What was not anticipated was the scale of resistance and protest and level of anger manifested on <a href="http://www.bloomberg.com/news/articles/2016-10-02/black-monday-as-polish-women-strike-against-total-abortion-ban">“Black Monday” on October 3</a>. In dreadful weather, Polish women across almost 200 town and cities in Poland, and across the world, took to the streets to protest. They took their inspiration from a strike <a href="https://www.theguardian.com/world/2005/oct/18/gender.uk">by women in Iceland in 1975</a>, when 90% of women refused to work, clean or look after children in protest at discrimination in the workplace. </p>
<p>Many employers sanctioned a day off and shops, museums and restaurants were closed. The protests in the heart of Warsaw paralysed the Polish capital. Protesters wore black clothes and waved black flags to signify the loss of reproductive rights and the future deaths of Polish women under a complete ban on abortion. </p>
<p>At first, it seemed that the highly visible protests would be dismissed as irrelevant. Anti-government protests organised by the civil movement KOD (Committee for the Defence of Democracy), had attracted ten times the level of <a href="http://www.bbc.co.uk/news/world-europe-36236576">support in May</a>, and been ignored by PiS. Poland’s foreign minister, Witold Waszczykowski, <a href="http://www.reuters.com/article/poland-abortion-idUSL5N1C92D0">initially trivialised</a> the Black Monday protests as “fun” for women, and an inappropriate way to seek to influence debate.</p>
<p>However, in a sign that PiS was responsive to the scale and ferocity of the protests, prime minister Beata Szydło <a href="http://www.independent.co.uk/news/world/europe/poland-abortion-ban-strike-prime-minister-beata-szydlo-distances-government-women-take-to-streets-a7345066.html">publicly reprimanded</a> Waszczykowski for his remarks, and sought to distance the government from the bill. This was despite her personal support for it – and the support of the PiS leader, Jarosław Kaczyński. Two days after the protests, science and higher education minister Jarosław Gowin <a href="https://www.theguardian.com/world/2016/oct/05/polish-government-performs-u-turn-on-total-abortion-ban">stated</a> that the protests had forced a rethink and taught the government “humility”.</p>
<h2>Opinion shift</h2>
<p>What PiS had underestimated was the level of anger provoked by the legislation, the capacity of the campaign to mobilise young women and the consequent dramatic shift in public opinion around abortion. Before the protests, around 70% of Poles supported the existing so-called “compromise” law. A <a href="https://oko.press/sondaz-oko-press-rosnie-liczba-zwolennikow-liberalizacji-ustawy-antyaborcyjnej/">recent IPSOS telephone poll </a> of 1,001 people conducted between 28 and 30 September showed the level of support for the status quo had fallen to 47%. </p>
<p>Meanwhile, only 10% support a further restriction of abortion law, with an unparalleled surge of support to almost 40% for abortion to be liberalised to include “difficult circumstances” (on socio-economic grounds) of the pregnant woman. Support for the government also dropped significantly to its lowest levels since last year’s elections and opinion polling also shows that PiS supporters are divided among themselves on the question of abortion.</p>
<p>This dramatic shift led to a volte-face by PiS members, who hurriedly sought to distance themselves from the proposed legislation. The Justice and Human Rights Committee <a href="https://www.theguardian.com/world/2016/oct/05/polish-government-performs-u-turn-on-total-abortion-ban">recommended</a> that the legislation be rejected and this was followed by the Polish parliament rejecting the bill <a href="http://www.bloomberg.com/news/articles/2016-10-06/polish-lawmakers-reject-total-abortion-ban-after-protests">outright by 352 votes to 58</a>.</p>
<h2>More restrictions on cards</h2>
<p>But the question of access to abortion is by no means settled. PiS is working on its own abortion bill, which is likely to propose that so-called “eugenic abortions” – abortions on the grounds of foetal congenital deformity – to be outlawed. Given that out of 1,044 legal abortions in Poland in 2015, 1,000 <a href="http://wiadomosci.onet.pl/tylko-w-onecie/rosnie-liczba-legalnych-aborcji-pis-chce-zmian-w-ustawie/9rb7tl">were permitted</a> on these grounds, this would still result in a virtual ban on abortion. </p>
<p>Meanwhile, another bill supporting a complete ban but with no punishment for the pregnant woman, collected 160,000 signatures and has already been submitted to the Polish parliament by the Polish Federation of Movements for the Defence of Life. It remains to be seen whether this bill will be debated in parliament.</p>
<p>But it seems certain that further restrictions will be proposed – and just as certain that further protests will take place. A further women’s strike has been called for the October 24 across the whole of Poland, with pro-choice protesters determined to maintain the pressure on the government.</p><img src="https://counter.theconversation.com/content/66652/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anne-Marie Kramer has previously received funding from the Economic and Social Research Council to research reproductive politics in Poland.</span></em></p>A popular protest forced the government back down on its proposed ban, but Poland still has savagely restrictive abortion laws.Anne-Marie Kramer, Lecturer, Faculty of Social Sciences, University of NottinghamLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/574912016-04-13T20:15:47Z2016-04-13T20:15:47ZHow ‘tough on crime’ politics flouts death-in-custody recommendations<p>Whatever might be said about its successes and failures, it’s clear that 25 years after the Royal Commission into Aboriginal Deaths in Custody <a href="http://www.austlii.edu.au/au/other/IndigLRes/rciadic/">tabled its final report</a>, Australia has become much less compassionate, more punitive and more ready to blame individuals for their alleged failings. </p>
<p>Nowhere is this more clear than in our desire for punishment. A harsh criminal justice system – in particular, more prisons and people behind bars – has apparently become a hallmark of good government.</p>
<p>This wasn’t always the case. But it just so happened that the royal commission handed down its findings at a time when the politics of law and order was rapidly changing. </p>
<h2>Reform to intolerance</h2>
<p>The 1970s through to the late 1980s was a period of criminal justice reform. Decriminalisation of certain types of summary offences, such as public drunkenness and prostitution; a commitment to reducing prison numbers through the introduction of community service orders and other non-custodial sentencing options; the development of mental health services for offenders; specific programs for women prisoners; and improved conditions for prisoners more generally: these were <a href="http://researchonline.jcu.edu.au/24468/">key parts of the political agenda</a>. </p>
<p>But, by the late 1980s and early 1990s, changing political conditions were <a href="http://www.austlii.edu.au/au/journals/AUIndigLawRw/2011/2.html">no longer conducive to effective reform</a> of the criminal justice system.</p>
<p>By the 1990s, state and territory governments no longer spoke of reducing prison numbers, but rather of <a href="http://researchonline.jcu.edu.au/24468/">the need to lock more people away</a>. </p>
<p>This move toward “law and order” responses manifested in:</p>
<ul>
<li><p>increased police powers, particularly in relation to public order;</p></li>
<li><p>“zero tolerance”-style laws that <a href="http://www.austlii.edu.au/au/journals/UWALawRw/1999/10.pdf">increased the use of arrest or detention</a> for minor offences;</p></li>
<li><p><a href="http://www.aic.gov.au/media_library/publications/tandi_pdf/tandi138.pdf">mandatory prison sentences</a> for various offences (particularly in the Northern Territory and Western Australia);</p></li>
<li><p>controls over judicial discretion through the introduction of mandatory minimum terms of imprisonment; </p></li>
<li><p>a growing use of remand and <a href="https://theconversation.com/not-for-punishment-we-need-to-understand-bail-not-review-it-28651">restrictions on bail eligibility</a>; </p></li>
<li><p>longer terms of imprisonment for a range of offences, most recently <a href="https://www.crimejusticejournal.com/article/view/145">New South Wales’ so-called “one-punch laws”</a>; </p></li>
<li><p>more people <a href="http://researchonline.jcu.edu.au/24468/">sentenced to prison than non-custodial options</a>; and </p></li>
<li><p><a href="http://researchonline.jcu.edu.au/24468/">changes to parole and post-release surveillance</a>, which have made parole more difficult to obtain and easier to revoke.</p></li>
</ul>
<p>There was <a href="http://researchonline.jcu.edu.au/24468/">both a judicial and political perception</a> of the need for “tougher” penalties, often based on political expedience and media-fuelled public alarm over particular crimes. </p>
<p>While these administrative, legal and technical changes contributed to increasing prison numbers, they also reflected a less tolerant and more punitive approach to crime and punishment. </p>
<p>Put bluntly, the last 25 years have seen a spectacle of punishment most graphically illustrated in climbing imprisonment rates. And these changes were directly in opposition to the fundamental findings of the royal commission, which advocated a reduction in Indigenous imprisonment rates. </p>
<h2>Self-fulfilling practices</h2>
<p>The Australian prison estate <a href="http://www.pc.gov.au/research/ongoing/report-on-government-services">now costs well over A$3 billion a year</a> to operate. And building a prison <a href="http://researchonline.jcu.edu.au/24468/">can cost between $500 million and $1 billion</a>, depending on its location, security level and size. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/118520/original/image-20160413-23623-r623yj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/118520/original/image-20160413-23623-r623yj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=365&fit=crop&dpr=1 600w, https://images.theconversation.com/files/118520/original/image-20160413-23623-r623yj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=365&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/118520/original/image-20160413-23623-r623yj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=365&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/118520/original/image-20160413-23623-r623yj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=459&fit=crop&dpr=1 754w, https://images.theconversation.com/files/118520/original/image-20160413-23623-r623yj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=459&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/118520/original/image-20160413-23623-r623yj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=459&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Imprisonment rates in Australia are not the result of increased levels of crime, since increases in imprisonment rates have continued while crime rates have levelled or fallen in many categories of crime from 2000.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/710928003/1254166079/">♪ ~/Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc/4.0/">CC BY-NC</a></span>
</figcaption>
</figure>
<p>Such is the financial cost of our commitment to <a href="http://netk.net.au/Prisons/Prisons2.pdf">a system that’s widely ineffective</a> in reducing re-offending, and significantly contributes to the further marginalisation of those who are incarcerated.</p>
<p>These increases in imprisonment in Australia have been paralleled in other countries such as the United Kingdom, the United States, New Zealand and, more recently, Canada. It is <a href="http://researchonline.jcu.edu.au/24468/">arguably their embrace of the neoliberal agenda</a> that has led these countries down the path of a harsher approach to crime and punishment. </p>
<p>In contrast, European jurisdictions that have more social democratic and corporatist forms of government have <a href="http://www.cambridge.org/au/academic/subjects/law/criminal-law/prisoners-dilemma-political-economy-and-punishment-contemporary-democracies?format=PB&isbn=9780521728294">sustained more moderate criminal justice policies</a> and have relied less on exclusionary and punitive approaches to punishment.</p>
<p>But states that experienced a decline in principles and policies reflecting the welfare state and embraced neoliberal notions had a realignment of values and approaches that emphasised “deeds over needs”. </p>
<p>Their focus shifted from rehabilitative goals to an emphasis on deterrence and retribution. Individual responsibility and accountability increasingly became the core of the way justice systems responded to offenders. </p>
<p>Privatisation of institutions and services; widening social and economic inequality; and new or renewed insecurities around fear of crime, terrorism, “illegal” immigrants and racial, religious and ethnic minorities have all impacted the way their criminal justice systems operate. </p>
<p>Completing the cycle, these changes, in turn, <a href="http://oro.open.ac.uk/4385/2/The_globalisation_of_crime_control.pdf">fuelled social demands for authoritarian law-and-order strategies</a>.</p>
<h2>Human warehouses</h2>
<p>In understanding the use of imprisonment, one of the most important points to grasp is that a rising imprisonment rate is not directly or simply related to an increase in crime. </p>
<p>The use of prison is a function of government choices; it reflects government policy and legislation, as well as judicial decision-making. </p>
<p>Imprisonment rates in Australia are <a href="http://www.abs.gov.au/AUSSTATS/abs@.nsf/Lookup/4530.0Main+Features12013-14?OpenDocument">not the result of increased levels of crime</a>, since increases in imprisonment rates have continued while crime rates have levelled or fallen in many categories of crime from 2000. Similar patterns are <a href="https://en.wikipedia.org/wiki/The_Spirit_Level:_Why_More_Equal_Societies_Almost_Always_Do_Better">seen internationally</a>. </p>
<p>The growth of the law-and-order agenda has also resulted in far weaker ideological differentiation between major political parties on criminal justice policy. The most politically expedient response to crime is the promotion and implementation of the “toughest” approach. </p>
<p>While conservative political parties may have traditionally appeared to be “tougher” on crime and punishment, many Australian states and territories, such as New South Wales and <a href="http://www.app.unsw.edu.au/section-5-political-timeline-5">the Northern Territory</a>, have <a href="http://www.app.unsw.edu.au/nt-indigenous-imprisonment-rate-compared-australian-imprisonment-rate">sustained and large increases in imprisonment rates</a> under Labor governments.</p>
<p>In the process, prisons have become human warehouses for marginalised peoples, and most particularly Indigenous people. This point is graphically illustrated by the fact that Indigenous men are now <a href="http://www.abc.net.au/news/2015-12-03/fact-check-aboriginal-men-in-jail-and-university/6907540">more likely to be siting in a prison cell</a> than in a university classroom.</p>
<p><em>This article is part of <a href="https://theconversation.com/au/topics/royal-commission-special-report">a special report</a> marking the 25th anniversary of the Royal Commission into Aboriginal Deaths in Custody. <a href="https://theconversation.com/au/topics/royal-commission-special-report">Check out the rest of the package</a>.</em></p><img src="https://counter.theconversation.com/content/57491/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Chris Cunneen receives funding from the Australian Research Council competitive research grants scheme. </span></em></p>Australia has become less compassionate, more punitive and more ready to blame individuals for their alleged failings since the Royal Commission into Aboriginal Deaths in Custody.Chris Cunneen, Professor of Criminology, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/536912016-02-01T11:08:30Z2016-02-01T11:08:30ZEurope has lost its Polish anchor<p>It was clear that something unusual was happening when both <a href="http://www.thenation.com/article/regime-change-in-poland-carried-out-from-within/">The Nation</a> and <a href="http://www.wsj.com/articles/polands-bad-turn-1452122970">the Wall Street Journal</a> denounced the Polish government. </p>
<p>Since taking power after elections last October, Jarosław Kaczyński’s Law and Justice party (Prawo i Sprawiedliwość, or PiS) can claim at least one undeniable accomplishment: they have brought Poland back into the international spotlight. </p>
<p>Unfortunately, what got illuminated has been an unrelenting assault on the norms of constitutional governance and the principles of liberal democracy. </p>
<p>After years of being <a href="http://www.economist.com/news/special-report/21604684-first-time-half-millennium-poland-thriving-says-vendeline-von-bredow">hailed</a> as the shining example of post-Communist success and European integration, Poland is once again depicted abroad as a land where “<a href="http://www.telegraph.co.uk/news/worldnews/europe/poland/12081347/EU-warns-Poland-it-could-be-subject-to-monitoring-over-media-crackdown.html">European norms</a>” are not respected, and people are once again evoking deeply unfair stereotypes of Polish “<a href="http://www.huffingtonpost.com/nikolas-kozloff/ukraine-and-poland-same-o_b_8423704.html">backwardness</a>.”</p>
<p>What happened? And why is this significant for Europe?</p>
<h2>Not representative</h2>
<p>Let’s begin with an easily overlooked fact: the Poles themselves did not fundamentally change during the past year. </p>
<p>It would be a mistake to search for any recent sociological trends, cultural shifts or economic developments that would explain why the Poles came to embrace the PiS worldview – because they haven’t. </p>
<p>Yes, they increased their total number of votes since the previous parliamentary elections in 2011, but only by 81,914 (in a country of 38.5 million people). </p>
<p>The fact is that in last October’s election, PiS won <a href="http://parlament2015.pkw.gov.pl/">just over 37 percent</a> of the votes cast, which amounts to 18 percent of the country’s registered voters, thanks to Poland’s persistently low turnout rate. </p>
<p>There was no groundswell of support for Jarosław Kaczyński’s vision; instead, he was able to seize power because of the fragmentation and weakness of his opponents. </p>
<p>This is what must be kept firmly in mind whenever they claim that they have a democratic mandate to carry out revolutionary changes. They may have a legitimate majority in the Parliament, but they speak for just over a third of those who voted last October and fewer than than 20 percent of the total electorate.</p>
<h2>Radical change</h2>
<p>Although PiS does not represent any significant shifts in Polish public opinion, they do exemplify a worrying trend in Europe, as far right parties threaten stability across the continent. Most egregiously, the authoritarian regime of Viktor Orbán in Hungary <a href="http://www.nsd.uib.no/european_election_database/country/hungary/">gained power</a> in 2010 with a two-thirds majority, allowing him to rewrite the constitution. </p>
<p>As the Polish election results came in on October 25, many observers concluded that the Budapest scenario could not be repeated in Warsaw, because PiS lacked the votes needed for constitutional changes.</p>
<p>What has followed, however, has been surprising. PiS has managed to erode the foundations of liberal democracy even without formally changing the constitution. </p>
<p>The new Polish government has sidelined the country’s <a href="https://euobserver.com/political/131662">constitutional court</a>, purged the <a href="http://www.pap.pl/en/news/news,451708,sejm-amends-civil-service-law.html">civil service</a> and (most worrying of all) radically transformed the public <a href="http://www.bbc.com/news/world-europe-35257105">media</a> into a pro-government mouthpiece. </p>
<p>Although independent media outlets continue to operate, the state media <a href="http://www.tvp.info/22875459/przybywa-widzow-wiadomosci-tvp1-i-tvp-info-programy-telewizji-polskiej-liderami-w-swoich-kategoriach">dominates the airwaves</a>. The head of the party’s parliamentary caucus <a href="http://wiadomosci.onet.pl/kraj/ryszard-terlecki-skomentowal-prace-nad-nowa-ustawe-medialna/fxdl06">said</a>, “If the media imagines that it will distract Poles with criticisms of our changes, then that must stop.”</p>
<h2>Historical roots</h2>
<p>PiS belongs to a long ideological tradition in Poland known as National Democracy, though that label carries too much baggage to be used politically today. </p>
<p>Prior to the Second World War, this movement was infamous for its <a href="http://www.amazon.com/When-Nationalism-Began-Hate-Nineteenth-Century/dp/0195151879">vitriolic antisemitism</a>, and while some of those views can still be heard in right wing circles today, this is no longer a major theme. </p>
<p>Hostility toward “outsiders” has, to a certain degree, been redirected toward refugees from the Middle East, sexual minorities, Polish liberals (derisively called “<a href="http://wpolityce.pl/polityka/277490-sluszna-uwaga-skowronskiego-skandaliczne-zachowanie-ws-atakow-w-niemczech-podwaza-wiarygodnosc-tego-co-niemieckie-media-pisza-o-polsce-media-na-pasku-polityki-i-ideologii">Polish speakers</a> but not true Poles”) and unspecified anti-Polish forces in Berlin, Moscow and Brussels. </p>
<p>More enduring than antisemitism is a political vision that emphasizes national cohesion, social discipline and cultural homogeneity. Though one might be tempted to label PiS “anti-democratic,” it is vital to recognize that they want to dismantle <em>liberal</em> democracy in order to create <em>national</em> democracy.</p>
<p>A national democracy is one in which the nation is governed by a strong leadership that speaks with a single voice, unencumbered by parliamentary squabbling or legal technicalities. Once the people have selected that leadership, true patriots should rally behind them. </p>
<p>PiS supporters do not see themselves as antidemocratic. Quite the contrary, they stress that they merely advocate a different type of democracy. </p>
<p>Their ideal system is <a href="http://www.fronda.pl/a/kornel-morawiecki-to-ze-nad-prawem-stoi-dobro-narodu-nie-jest-zadna-rewolucja,61432.html">best captured</a> by a claim made by one of their supporters in Parliament: “The good of the nation is above the law.”</p>
<h2>What next?</h2>
<p>Supporters of liberal democracy within Poland, along with the country’s many international friends, are left with few options. </p>
<p>The European Union cannot do much. Although technically Brussels could cut off aid or even suspend Poland’s voting rights, such moves have to be unanimous, and the Hungarian government has promised a veto. </p>
<p>Beyond that, there will be “investigations” and delicately phrased expressions of “concern” (a process that has <a href="http://www.politico.eu/article/commission-to-inspect-poland-rule-of-law-assessment-constitutional-court/">already begun</a>), but these will have little or no impact in Warsaw. </p>
<p>Even if the institutions of the EU had more power (and their leaders more determination), the possibility of a backlash within Poland against “outside interference” could undermine any attempt to help PiS’s opponents.</p>
<p>Those trying to save liberal democracy within Poland have joined together in a new movement called the Committee for the Defense of Democracy (<a href="http://komitetobronydemokracji.pl/">Komitet Obrony Demokracji</a>, or KOD), and their public protests have rallied tens of thousands of people <a href="http://www.tvn24.pl/wiadomosci-z-kraju,3/manifestacje-kod-w-wielu-miastach-w-calej-polsce,613194.html">in every major city in Poland</a>. This group, not the current government, represents a genuine majority: according to <a href="http://www.rp.pl/Polityka/311299906-Polacy-martwia-sie-o-demokracje.html">a recent survey</a> 55 percent of Poles fear that democracy in their country is threatened . </p>
<p>But it would require mobilization on a far greater scale to challenge PiS’ power. They have long viewed opponents as enemies who must be defeated, not debated. </p>
<p>When party leader Jaroslaw Kaczyński declares that he speaks for the nation, he does not rely on elections or survey data. He believes that he has a responsibility to educate Poles, <a href="https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=5&cad=rja&uact=8&ved=0ahUKEwib1pzFttLKAhXH2T4KHeodDkkQFgg8MAQ&url=http%3A%2F%2Fwww.batory.org.pl%2Fupload%2Fjkaczynski.pdf&usg=AFQjCNHS4aglLFHhtgS6rv2s50dsj3_kmg">to cultivate their patriotism</a> and to defeat those who, as he <a href="http://300polityka.pl/news/2015/12/11/kaczynski-w-tv-republika-o-rzeplinskim-ustawie-naprawczej-i-najgorszym-sorcie-polakow-7-cytatow/">put it recently</a>, carry treason “in their genes.”</p>
<p>As the founder of the National Democratic movement, Roman Dmowski (whom Kaczyński considers his primary ideological inspiration), <a href="https://www.academia.edu/198226/_Democracy_and_Discipline_in_Late_Nineteenth-Century_Poland_Journal_of_Modern_History_71_2_June_1999_346-93">put it in 1905</a>: </p>
<blockquote>
<p>The National Democratic movement has for a long time given the impression that it was working for the future of society against the will of that society…This does not at all deprive us of moral strength, because the national movement draws its moral strength not from the contemporary generation alone, but also and above all from the best traditions of the past.</p>
</blockquote>
<p>This is not the sort of movement that moderates its agenda because of popular protest.</p>
<h2>A danger for Europe</h2>
<p>Poland has been an oasis of <a href="http://www.economist.com/news/leaders/21605910-poland-just-had-best-25-years-half-millennium-its-transformation-remains">economic stability</a> and growth for a decade, even as the rest of the continent struggled with the Great Recession. </p>
<p>The Polish political system, for all its many inadequacies and petty corruption, had exemplified steady improvement toward a respect for the rule of law, even as <a href="http://www.dw.com/en/romania-rule-of-law-under-attack/a-18521030">so</a> <a href="https://euobserver.com/justice/117008">many</a> <a href="https://www.hrw.org/news/2013/05/16/hungary-rule-law-under-threat">other</a> post-Communist countries battled endemic structural problems. </p>
<p>The norms of public life in Poland had been moving toward greater <a href="http://porterszucs.pl/2015/03/08/the-antipathy-index/">respect for diversity</a>, even as intolerance was growing throughout most of Europe.</p>
<p>But no longer. </p>
<p>The country that was quietly (perhaps surprisingly) becoming one of Europe’s anchors will no longer be playing that role. </p>
<p>Given the rough seas the continent must navigate over the next few years, we should all be very concerned.</p><img src="https://counter.theconversation.com/content/53691/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Brian Porter-Szücs 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>After years of being hailed as the shining example of post-Communist success, Poland is being depicted going ‘backward.’ What happened? And why is this significant for Europe?Brian Porter-Szücs, Professor of History, University of MichiganLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/532782016-01-21T15:47:15Z2016-01-21T15:47:15ZWhat to do if you’re really angry about Making a Murderer<figure><img src="https://images.theconversation.com/files/108468/original/image-20160118-31837-2hk9ka.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Questions remain about the evidence against Steven Avery.</span> <span class="attribution"><span class="source">Netflix</span></span></figcaption></figure><p><em>Warning: this article contains spoilers. Finish the series before you read.</em></p>
<p>The Netflix documentary series Making a Murderer has people furious. More than 400,000 people have signed a <a href="https://www.change.org/p/president-of-the-united-states-free-steven-avery">petition</a> demanding Steven Avery’s release from prison, following his conviction for the murder of Teresa Halbach. Anyone who has watched the series has a view on whether this conviction was secured under suspicious circumstances.</p>
<p>Avery originally spent 18 years in prison after being wrongfully convicted of sexual assault in 1985. He was later cleared thanks to developments in DNA science and serious concerns were raised about the police investigation into that case. Avery filed a $36 million lawsuit against local law enforcement in 2003 but was arrested for murder before it could be settled.</p>
<p>Making a Murderer charts the progress of the murder trial, raising questions about evidence being planted and witnesses being coerced into testifying to implicate Avery in the crime. </p>
<p>The filmmakers and the prosecutor in Avery’s case are currently slugging it out in a media <a href="http://www.theguardian.com/culture/2016/jan/17/making-a-murderer-netflix-steven-avery">slanging match</a>, each side accusing the other of having been selective in their use of evidence.</p>
<p>We know that miscarriages of justice happen. Avery’s own history testifies to that. The <a href="http://www.innocenceproject.org/free-innocent/improve-the-law/fact-sheets/dna-exonerations-nationwide">Innocence Project</a> has reported that there have been a staggering 337 post-conviction DNA exonerations in the US since 1989. Some of these people served decades in prison. Florida man James Bain, for example, was released from prison in 2009 having served <a href="http://www.businessinsider.com/james-bain-exonerated-after-35-years-in-prison-2013-10?IR=T">35 years</a> for a crime DNA now shows he could not have committed.</p>
<p>The bad news for Avery is that in the absence of DNA evidence proving someone else committed the murder, it is immensely difficult to get a conviction overturned when all appeals have been exhausted. Those who believe in Avery’s innocence will be haunted by the scene in the final episode of Making a Murderer, in which his highly competent team of lawyers sits around a table utterly defeated.</p>
<p>The need to balance a fair trial with the need to have some finality to a case means that adversarial criminal justice systems can be reluctant to admit mistakes have been made.</p>
<p>So other than having uncommon powers of patience, resilience and determination what can you do if you think there has been a miscarriage of justice? Here are five courses of action:</p>
<h2>1. Turn detective</h2>
<p>The easiest way to overturn a conviction is to discover fresh evidence. Appeal courts are very reluctant to overturn a conviction if all the evidence was put before the jury at trial. The rules of criminal procedure aim to create an equality of arms at trial between the prosecution and defence. However, this overlooks the fact that there is a great discrepancy between the two at the investigatory stage.</p>
<p>Prosecution authorities can draw on the significant investigative resources of police departments, which the defence cannot hope to match. At trial, the defence generally seeks to rebut the prosecution’s arguments rather than investigate other possible explanations. It is not the job of the defence team to identify the culprit, they only have to show that there is reasonable doubt about their client’s guilt. But often, the only realistic chance of overturning a conviction comes from discovering some other possible explanation for the crime – such as evidence pointing to someone else’s guilt.</p>
<h2>2. Read the leading science journals</h2>
<p>People are often exonerated because of scientific developments – particularly in DNA. This means that, sometimes years later, more can be done with existing DNA evidence than could be done at the time of trial. </p>
<p>Fans of the series will be aware that arguments about <a href="http://lawprofessors.typepad.com/evidenceprof/2016/01/several-readers-have-asked-me-questions-about-theethylenediaminetetraacetic-acid-edta-evidence-used-in-the-steven-averymak.html">ethylenediamine tetraacetic acid</a> (EDTA) tests are particularly important in Avery’s case. If EDTA can be proven to be present in the samples of Avery’s blood found in the victim’s vehicle, it would significantly strengthen the defence’s argument that evidence was planted by police as it would show the blood sample had been kept in a test tube. Developments in EDTA testing in Avery’s favour would seem one of the best chances of overturning his conviction.</p>
<h2>3. Get a lawyer</h2>
<p>There are often problems getting legal advice post-conviction as at this stage the funds have usually dried up and public assistance is usually limited.</p>
<p>If you believe in Avery’s innocence, Making a Murderer ends on a very bleak note. No longer able to afford his legal team, he is left by himself to plough through voluminous quantities of documents in the hope of finding some source of exculpation.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/108469/original/image-20160118-31821-ae3ml6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/108469/original/image-20160118-31821-ae3ml6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=462&fit=crop&dpr=1 600w, https://images.theconversation.com/files/108469/original/image-20160118-31821-ae3ml6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=462&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/108469/original/image-20160118-31821-ae3ml6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=462&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/108469/original/image-20160118-31821-ae3ml6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=580&fit=crop&dpr=1 754w, https://images.theconversation.com/files/108469/original/image-20160118-31821-ae3ml6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=580&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/108469/original/image-20160118-31821-ae3ml6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=580&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Avery in court.</span>
<span class="attribution"><span class="source">Netflix</span></span>
</figcaption>
</figure>
<p>In the US you can write to the Innocence Project, which supports post-conviction clients – and indeed supported Avery in his first case. Its counterpart organisation in the UK, the Innocence Network, has been disbanded. However, there are organisations such as the <a href="http://www.criminalappeals.org.uk/">Centre for Criminal Appeals</a> and <a href="http://www.insidejusticeuk.com/">Inside Justice</a> which help with post conviction cases, as well as a number of university law schools.</p>
<h2>4. Call your celebrity friends</h2>
<p>Miscarriage of justice cases need a campaign to keep the issues in the forefront of public consciousness and to further investigations. This requires journalistic, public relations, and campaigning skills that are beyond the remit of most lawyers. </p>
<p>Nothing attracts media attention to your campaign like celebrity endorsement. The case of Kevin Nunn is one such example. Nunn was convicted of murder in the UK in 2005, despite arguing that the police should release forensic samples for re-testing. He didn’t get much media attention until the actor, [Tom Conti](<a href="http://news.sky.com/story/1428909/convicted-killer-in-last-ditch-dna-appeal">http://www.eadt.co.uk/news/actor_tom_conti_backs_campaign_to_overturn_kevin_nunn_s_murder_conviction_1_3960231</a>, offered to pay for the re-testing. Nunn eventually secured a hearing at the <a href="http://www.bbc.co.uk/news/uk-england-suffolk-27903276">British Supreme Court</a>, but his efforts to get forensic samples re-tested continue. </p>
<h2>5. Go to the top</h2>
<p>Many legal systems allow for some sort of intervention by the executive when there is exceptional concern over a conviction. In Avery’s case it is the Governor of Wisconsin and not the President of the United States who has the power to pardon. That’s because Avery was convicted of state rather than federal crimes.</p>
<p>If you feel Avery should be pardoned you can contact Governor Scott Walker of Wisconsin by emailing him at <a href="mailto:govgeneral@wisconsin.gov">govgeneral@wisconsin.gov</a> or writing to Office of Governor Scott Walker, 115 East Capitol, Madison, WI 53702.</p><img src="https://counter.theconversation.com/content/53278/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Richard Owen works in association with The Centre for Criminal Appeals and Inside Justice. </span></em></p>The Netflix documentary about the case against Wisconsin man Steven Avery has everyone talking. What can you do if you smell a rat?Richard Owen, Director Essex Law Clinic, School of Law, University of EssexLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/510052015-11-23T16:26:09Z2015-11-23T16:26:09ZWhy Poland’s new government is a problem for migrants to the EU<p>The new Polish prime minister, Beata Szydło, had a firm message for her EU allies in her <a href="http://wbj.pl/beata-szydlo-delivers-policy-speech/">inauguration speech</a> – they shouldn’t burden the Poles with their migrant problems. As she put it:</p>
<blockquote>
<p>The issue of refugees is making us aware that the question of solidarity must be defined clearly. One cannot call attempts to export problems, which some countries have created without others’ participation, solidarity.</p>
</blockquote>
<p>Szydło is deputy leader of the right-wing Law and Justice (PiS) party, <a href="http://www.theguardian.com/world/2015/oct/25/poland-lurches-to-right-with-election-of-law-and-justice-party">which won</a> a decisive victory in October’s election, becoming the first political grouping in post-communist Poland to secure an overall parliamentary majority (Andrzej Duda, the <a href="https://theconversation.com/polands-new-hawkish-president-could-be-shape-of-things-to-come-from-warsaw-45792">recently elected</a> president, is also from Law and Justice). </p>
<p>In the wake of the Friday 13 <a href="http://www.huffingtonpost.com/entry/paris-attacks-timeline_56490a09e4b0603773499133">Islamist terrorist attacks</a> in Paris, Szydło’s speech explicitly framed the new government’s programme in terms of increasing Poland’s national security – even while she mainly focused on the social and economic issues at the centre of the party’s election pledges. The obvious question for Poland’s allies is what it means for the country’s migration policy. </p>
<h2>Doves vs hawks</h2>
<p>The former Civic Platform (PO) centrist government, led by Ewa Kopacz, tried to strike a balance between competing domestic and international pressures on the migrant front. It was concerned to be seen to be responding to popular anxieties about EU institutions trying to impose migrants on a country with very few ethnic minorities and virtually no non-Europeans.</p>
<p>At the same time, the former administration came under growing pressure to take a greater share of migrants – both from the liberal-left domestic media and cultural establishment and from Brussels and other EU states. </p>
<p>Having initially opposed the European Commission’s proposal for mandatory migrant quotas, the government decided to share the burden following the wave of migration during the summer. It had feared it was in danger of being labelled one of the least migrant-friendly member states by the Western media, and switched to a policy of “responsible solidarity” instead. At the <a href="http://www.bbc.co.uk/news/world-europe-34344346">September EU summit</a> on the migration crisis, Warsaw went against the Czech Republic, Hungary and Slovakia and voted to accept 4,500-5,000 additional migrants, meaning a total of around 7,000 next year. </p>
<p>Law and Justice took a very different position. It argued that Poland should resist EU pressure to take in migrants and make policy decisions based on Polish interests. It warned there was a serious danger of making the same mistakes as many Western European countries, making Poles “guests in their own country”. During the election campaign <a href="http://wiadomosci.onet.pl/kraj/mocne-wystapienie-kaczynskiego-ws-imigrantow-ambasada-szwecji-odpowiada/zdnmqn">it claimed</a> that France, Germany, Italy, Sweden and the UK were EU states with large Muslim communities where this scenario was already unfolding.</p>
<p>The party argued that rather than taking in migrants, the EU should concentrate on providing aid to refugee camps in the Middle East and North Africa. It accused the government of betraying its central European allies and violating national sovereignty by taking decisions under EU pressure without the agreement of the people. It argued that taking 7,000 migrants was unrealistic because family members would be able to join initial arrivals, and that it was naive to believe that this quota would not be used as a precedent to force Poland to take in additional migrants in the future. </p>
<h2>In office</h2>
<p>So how tough will Law and Justice be now that it has power? In the wake of the Paris atrocities, new European minister Konrad Szymański suggested that Poland might try and <a href="http://www.economist.com/news/europe/21678514-je-suis-charlie-was-about-free-speech-time-issue-migrants-europe-sees-paris-attacks">unpick the September deal</a>. He argued that the attacks showed that the EU’s response to the migrant crisis was flawed and his country’s participation in the relocation scheme was now untenable. </p>
<p>Yet Szymański did subsequently backtrack on this somewhat, saying that Poland would only accept migrants under the EU scheme if security guarantees were in place. Meanwhile Szydło and new foreign minister Witold Waszczykowski both said the new government would abide by the deal, while stressing that Warsaw would be seeking robust guarantees that any migrants were genuine refugees and did not pose a threat to national security.</p>
<p>Nonetheless, as Szydło’s policy speech made clear, the Law and Justice-led government is likely to take a much harder line on this issue than its predecessor. We can expect Poland to oppose taking in additional migrants under the EU scheme, even as their numbers show no sign of abating and more intensive attacks on Islamic State in Syria potentially increase the number of refugees leaving the country. States trying to put the issue of controlling the bloc’s external borders back on the agenda can expect support from the Poles too. Though time will tell how far the new government differs from Civic Platform in practice, Polish-style “responsible solidarity” may well turn out to be interpreted very differently by the new administration.</p><img src="https://counter.theconversation.com/content/51005/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Aleks Szczerbiak 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>With hardliners taking charge of the government and presidency in Warsaw, the migrant rhetoric is looking worrying. But how much will change in practice?Aleks Szczerbiak, Professor of Politics and Contemporary European Studies, University of SussexLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/457922015-08-07T05:29:24Z2015-08-07T05:29:24ZPoland’s new hawkish president could be shape of things to come from Warsaw<p>Where next for Poland? That is the big question following the <a href="http://abcnews.go.com/International/wireStory/polands-conservative-president-andrzej-duda-takes-office-32914946">swearing in</a> of Andrzej Duda for a five-year term as the new president. </p>
<p>The 43-year-old lawyer’s <a href="http://www.bbc.co.uk/news/world-europe-32862772">shock victory</a> in May’s presidential election has shaken up Polish politics. It means that for the first time since 2010, Poland’s president is from a different party to the prime minister. Duda represents the right-wing <a href="http://www.britannica.com/topic/Law-and-Justice">Law and Justice party</a>, while prime minister Ewa Kopacz is from the centrist <a href="http://www.platforma.org/en/about-us">Civic Platform</a>. </p>
<p>Duda’s victory <a href="http://www.worldpoliticsreview.com/articles/15850/duda-s-surprise-presidential-win-in-poland-raises-populist-specter">prompted speculation</a> about whether there would be a significant shift in Polish international relations. Up to a point, is the short answer. Real executive power lies with the prime minister, but the Polish president is not simply a ceremonial figure. According to the <a href="http://www.sejm.gov.pl/prawo/konst/angielski/kon1.htm">constitution</a>, the president has informal oversight and a coordinating role over foreign policy. </p>
<p>The president ratifies international agreements – so he or she can block treaties negotiated by the government; and, as the country’s highest representative, can – for example – participate in meetings of the EU Council. Duda will also exercise powerful influence through his foreign visits and high-profile speeches – beginning with <a href="http://www.theguardian.com/world/2015/aug/06/poland-president-andrzej-duda-stronger-nato-presence-counter-russia">his calls</a> on August 6 for a greater NATO presence in eastern Europe. </p>
<p>This all means that the current government is going to have to live with a powerful figure with a very different agenda – at least until the parliamentary election on <a href="http://www.euronews.com/2015/07/18/poland-to-hold-general-election-on-october-25/">October 25</a>. After that point, Duda’s views could well be the dominant Polish position. </p>
<h2>International interests</h2>
<p>The current government takes what it argues is a constructive approach towards the main EU powers, especially Germany. It claims that this has effectively promoted the country’s international interests – in contrast to the Law and Justice government that it succeeded in 2007, led by <a href="http://www.britannica.com/biography/Jaroslaw-Kaczynski">Jarosław Kaczyński</a>. Civic Platform <a href="http://www.theguardian.com/world/2014/aug/31/donald-tusk-european-council-president-poland">presents the</a> appointment last autumn of the then Polish prime minister Donald Tusk as president of the EU Council as the crowning achievement of this strategy.</p>
<p>Law and Justice supports Polish EU membership, but is anti-federalist and at times verges on eurosceptic. It opposes further European integration and defends Polish sovereignty, especially in relation to morality and culture – where it rejects what it sees as an EU liberal-left consensus. The party argues that Poland needs to better advance its national interests within the EU and its critique of German-led closer integration has intensified since the <a href="http://www.theguardian.com/business/debt-crisis">eurozone crisis</a>. </p>
<p>During the presidential campaign, Duda called for the country to recalibrate its relationship with Germany. He also wanted to revisit the decision-making split between Brussels and member states to strengthen national sovereignty in areas like climate policy, claiming EU policies were damaging Polish industry. </p>
<p>The current government has toned down its earlier enthusiasm for adopting the euro, yet it remains committed to fulfilling the criteria for eurozone accession as quickly as possible. Law and Justice opposes adoption until Poland’s economy is more closely aligned with the rest of the EU and then not without a referendum. Since the eurozone crisis, it has increasingly given the impression that it couldn’t envisage any point in the foreseeable future where this could be in Polish interests. </p>
<p>At least some of this positioning is just rhetoric, however. A Law and Justice administration would be more assertive about an independent foreign policy and sound more eurosceptic, but radical steps against EU integration are unlikely. When last in government in 2005-07, it often tended to be integrationist in practice. Neither has the party ever opposed Polish adoption of the euro in principle. In reality, the two Polish parties’ European battles have been less about the substance of integration and more about who is more competent to represent Polish interests abroad. </p>
<h2>Russian policy</h2>
<p>Both parties support the idea of Poland at the forefront of efforts to maintain and extend EU sanctions against Russia and increase NATO presence in central Europe. Yet Law and Justice claims the current government has been constrained by its unwillingness to move too far beyond the EU consensus and counter-balance the over-conciliatory instincts of some major European powers, particularly Germany. </p>
<p>As Duda indicated at his swearing-in speech, Law and Justice wants to use the <a href="http://www.gmfus.org/events/wales-warsaw-priorities-nato-2016-summit">2016 NATO Warsaw summit</a> to secure a greater military presence in the country, preferably including permanently stationed US forces or military bases. They want defensive weaponry to be located on NATO’s eastern flank, <a href="http://openeurope.org.uk/blog/what-does-dudas-win-mean-for-poland-europe-and-the-uk/">something opposed by</a> Germany as too provocative towards Russia. During his election campaign, Duda also called for a stronger Polish presence in international negotiations over Ukraine and Russia and mooted Polish military aid to Ukraine through NATO. </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/91031/original/image-20150806-5245-1i7xnih.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/91031/original/image-20150806-5245-1i7xnih.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/91031/original/image-20150806-5245-1i7xnih.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=627&fit=crop&dpr=1 600w, https://images.theconversation.com/files/91031/original/image-20150806-5245-1i7xnih.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=627&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/91031/original/image-20150806-5245-1i7xnih.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=627&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/91031/original/image-20150806-5245-1i7xnih.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=787&fit=crop&dpr=1 754w, https://images.theconversation.com/files/91031/original/image-20150806-5245-1i7xnih.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=787&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/91031/original/image-20150806-5245-1i7xnih.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=787&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Former president Lech Kaczyński.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Prezydent_Lech_Kaczyński_04.jpg#/media/File:Prezydent_Lech_Kaczyński_04.jpg">Wikimedia</a></span>
</figcaption>
</figure>
<p>Duda identifies with the so-called “<a href="http://www.economist.com/news/special-report/21604684-first-time-half-millennium-poland-thriving-says-vendeline-von-bredow">Jagiellonian policy</a>” of by the late Lech Kaczyński, the president 2005-10, which envisages Poland as regional leader and a broad military and political coalition of east-central European states to counter Russian expansionism. Duda is likely to try and breathe new life into this project, though this won’t be easy given that some states including the Czech Republic, Hungary and Slovakia <a href="http://www.gmfus.org/publications/region-disunited-central-european-responses-russia-ukraine-crisis">have questioned</a> the rationale even behind existing EU sanctions. </p>
<h2>The way ahead</h2>
<p>If Civic Platform remains in government after the October election, Poland faces up to four years of political cohabitation. Law and Justice <a href="http://rpubs.com/benstanley/26691">is currently</a> 10% ahead in the polls but is unlikely to secure an outright majority, and has no obvious coalition partners among the current parliamentary parties. </p>
<p>Despite the politics and rhetoric behind many of the two parties’ divisions on foreign policy, Poland’s most recent period of cohabitation between the two parties, in 2007-10 during the Lech Kaczyński presidency, was certainly not pretty. It saw an ongoing power struggle, including embarrassing battles over the EU. Notably the president delayed Polish ratification of the Lisbon treaty for 18 months in 2008-09. </p>
<p>The alternative is that Duda does find himself working with a government with whom he shares a common programme. If that happens, Poland will be more assertive in pushing forward its interests at the international level, independent of the major EU powers. We will see which of these two futures comes to pass after October 25. As things stand, Poland’s approach to the world has just become considerably less predictable.</p><img src="https://counter.theconversation.com/content/45792/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Aleks Szczerbiak 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>Andrzej Duda’s Law and Justice party is more anti-Russian and eurosceptic than its main rival.Aleks Szczerbiak, Professor of Politics and Contemporary European Studies, University of SussexLicensed as Creative Commons – attribution, no derivatives.