Illustration: Andrew Dyson.
If you must continue to commit crime, do it in Canberra.
A recent morning spent in the Central Criminal Courts in downtown New York City quickly brings home the gulf between sentencing and procedure in Australia and America (or at least the state of New York).
This was a ''calendar day'' in the state's Supreme Court, roughly equating to ''directions'' in our Supreme Court or ''case management'' before our magistrates.
There was bargaining for adjournments and cursory checks on remandees' welfare. There wasn't a bail application across the whole morning, defenders merely confirming detained client's instructions before contested matters going to trial.
And there was sentencing: quick, harsh and dispassionate.
Unlike Australian courts, sheafs of references were not proffered and defence lawyers did not embark on verbal pleas about their client's subjective features.
There was nary more than a paragraph said on anyone's behalf and not a presentence report, let alone a forensic mental-health report, in sight. At home, such reports are almost invariably in play before anyone gets sent to prison. They are written by skilled and experienced officials who have an eye on each offender's family history, cultural background, criminal antecedents, attitude to offending and, critically, their prospects for rehabilitation and/or likelihood of re-offending.
They typically run to six pages (sometimes up to 10) and they go to the judge before he or she takes the bench. Often, at least in the Supreme Court, the PSR author is called to give evidence. Sometimes parents, employers and offenders themselves also give evidence.
In New York, at least on this morning, there were no such appearances before a judge, who at times seemed almost subsidiary to proceedings. A court sergeant in crisp white shirt talked over the top of the man on the bench (and everyone else), marshalling his sheriffs while monitors and associates added to the general buzz. Maybe His Honour really is a bit subsidiary here in the home of the free.
People were sentenced to prison pretty much it seemed on the say so of the severely groomed district attorneys (''The People''), who told the court exactly what sentence had been agreed by, or offered to, the defence. His Honour, literally, signed off on the deals. The only time the judge seemed particularly involved was in one case when the DA had reduced the degree of a charge from one carrying seven years' jail to one carrying three but where ''The People'' would settle for only 18 months, even given the accused's unsavoury history. His Honour thought this a position worth pushing, while still acknowledging the accused's right to maintain his plea of not guilty. And that plea was adhered to, notwithstanding the judicial urging and the seeming indifference of defence counsel. We heard nothing in open court of the alleged facts but the bench and bar had seen a statement of them and seemed almost to be working in unison.
It was extraordinary stuff, by Australian standards.
Perhaps all the legal work, especially in sentencing matters, is done before court, defenders vigorously making all the points in negotiation that are made in Australia at a hearing.
It brought some pause for thought about how lawyers operate. Let's hope all the work really was going on under the surface and that all defendants got a fair go, distilling the correct plea and having the appropriate sentence crafted (both for them but especially for the community).
But you'd have to have some doubts.
William Taft, when president from 1909 to 1913, described criminal law practice in the United States as a ''disgrace''.
''Big Bill'' did this about a decade before he became Chief Justice of the US (1921-1930) but after he had been the nation's fifth solicitor-general and a Court of Appeals judge for a decade.
Ralph Slovenko, in Crime, Law and Corrections, declared in 1966: ''Lawyers generally regard practice of the criminal law as unworthy of their time and minds''. This was the same time when FBI director J. Edgar Hoover reckoned, ''We are faced today with one of the most disturbing trends I have witnessed in my years of law enforcement: an over-zealous pity for the criminal and an equivalent disregard for his victim.'' Since then, we've witnessed a half-century of law and order muscle campaigns for political office on both sides of the Pacific. Legislation has ratcheted up both the number and scope of offences and the severity of penalties.
Maybe the answer lies further back in American history, with the great John Adams.
The first vice-president and then second president was, with his cousin, Samuel, a leading Son of Liberty, agitating and organising for independence from Britain in the 1770s. Both Adams are among the five Massachusetts delegates who signed the Declaration of Independence in 1776.
John Adams well knew of the propaganda advantage to he and his fellow patriots of the ''Boston Massacre'' of 1770.
This was when scores, maybe several hundred, young, reckless patriots confronted at first one and then a handful more British soldiers enforcing British law in Boston. The redcoats were mightily outnumbered. They were being pelted with objects, including sharp oyster shells. There was confusion in abundance.
But the redcoats had the guns. Five Americans were killed.
Two soldiers were shown to have fired directly into the crowd and were charged and convicted of manslaughter.
Nothing approaching clarity could be demonstrated in relation to the other soldiers but they were all charged.
What chance a fair trial in that hotbed town of revolution?
No lawyer would even take the brief for the soldiers.
Adams, the revolutionary hero, stepped in - he ran the defence and he won, convincing a jury of its duty to look at the whole of the evidence and hold any and all political predispositions in check.
The unfashionable defendants, he declared, must always have the right to representation in court.
On the third anniversary of the massacre, two years before the Revolutionary War, Adams said, ''The part I took in defence … procured me anxiety and obloquy enough. It was, however, one of the most gallant, generous, manly and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my country.'' Adams remains an exemplar for practitioners everywhere.
But you get the feeling he might be needed much more at home than abroad.
Andrew Fraser is a Canberra criminal lawyer.