Richard Bourke

Richard Bourke, Melbourne Law School Alumnus and Director of the Louisiana Capital Assistance Center, texts to apologise he will be late for our interview as he is still “on the road”. Little do we know that he has been “on the road” for over 6 hours driving home from the most far-flung prison in Louisiana. It is only after the interview (late in New Orleans) that he lets this fact slip, raising a beer in true Australian fashion.

Richard is a remarkably passionate advocate for US death row inmates, which makes sense when he tells his story. In his early days as a student at MLS, Richard was introduced by Danny Sandor (for whom the MLS Danny Sandor Prize in Children’s Rights is named) to volunteer with high-risk adolescents, reluctantly giving this up to take up articles with a criminal law firm in St Kilda. Before joining the bar, Richard took two months to volunteer at the Louisiana Capital Assistance Center. After his time at LCAC Richard, already “hooked” on how much difference he made in an environment with such need, went back to Melbourne. After practicing successfully as a barrister for four years he “had this realization that at some point, I was going to put my head down over a brief and look up, and it will be 25 years later.” So despite the fact he was a successful barrister, who enjoyed his work, he decided to “to make a conscious choice.” Richard returned to the LCAC, originally planned for six to 12 months, and has been there ever since.

Reflecting on his legal career in Australia he comments on the commitment to excellence and professional responsibility obviously ingrained in the law profession in Australia. “It’s a wonderful background to take anywhere and shouldn’t be taken for granted.”

Richard remains optimistic that the death penalty is failing and is on its way out in the United States. Leaving aside “a somewhat unique political moment” resulting in a wave of unprecedented Federal executions under the last President “the interest in and enthusiasm for the death penalty by those who administer it continues to drop, the public interest in the death penalty and public support for the death penalty continues to drop the number of death sentences each year, broadly speaking, continues to drop.” There are only 44 Federal death row inmates currently in a population of 330 million people. However, in the United States, eventual elimination of the death penalty cannot be taken for granted:

“The advances in human rights, particularly in the face of state activity, government activity, debates on human rights; it’s a story of winning and holding ground and winning more ground and holding more ground.”

Richard was struck by the statistics on Australian Aboriginal incarceration when speaking at a conference here a few years ago. While not presuming to suggest solutions after 20 years away, he felt compelled to point out to the meeting that the numbers are staggering in comparison to those of other countries. “Australia simply has to reckon with the fact that where we are with those rates of over incarceration is so far beyond the pale.” He continues “...it needs to start with a recognition and a refusal to accept those numbers, (and move) into engaging the cheap political fix of incarceration.”

“The death penalty, is very frequently here in the US and throughout its history has been a cheap political fix... It’s an easy popularist fix, and incarceration serves a similar purpose in Australia.”

Secondly, Richard emphasised the need to humanise each individual in the criminal justice system. “it’s very easy to convey a stereotype in the mind of the Australian public about an intoxicated Aboriginal man, and everyone thinks they understand what the story is, and what the backstory is, and why that person is locked up and what it’s all about, and why the authorities may have acted in this way. Each of these people is an individual human being with an individual story about who they are, how they’ve gotten there, who cares about the fact that they’re there.” Returning that individual human dignity is a precursor to treating them with more humanity and recognizing that the current approaches are unacceptable.

Turning to his work with the LCAC Richard describes the extraordinary privileges of working with not only his clients and their families, but the families of those who have been killed by his client’s violence. The victim’s family play a critical role in the decision of whether or not the government will pursue execution. It is an “extraordinary reversal” where the system turns innocent people who’ve experienced extraordinary trauma into being complicit in killing another person.

This is where Richard has seen “the humanity of people shine”. He has seen his client’s compassion grow, despite the system’s efforts to strip their dignity.

He has seen “extraordinary grace from the families of those who have suffered a loss to violent crime; to murder”. There are proponents who believe that the death penalty, gives “justice” to the victim’s family, however some families exhibit, “so much more respect for human life, so much more willingness to consider compassionate mercy than those who are administering the system” ... “it’s liberating for people to step away from defining their love for their lost one in terms of vengeance or a maximum penalty or killing itself. That’s been an extraordinary thing to watch.”

In the context of an organised criminal justice system in a democratic country, Richard sees the LCAC as “gatekeepers to the way our society is constructed”. What they are fighting against “is the legalization, the constitutional validation of violence by the state against the individual. It’s where the government is authorized to kill its own citizens.” Richard and his team work to ensure the government “remains in its power, that balance and respect for individual human dignity is afforded, that the basic human rights recorded.”

“We have the privilege of participating in an extraordinary exercise of political power, democratic action, constitutional authority, because we are part of that system that is meant to help keep that individual alive and act as the gatekeeper, the interpreter, the advocate for them, so that’s a lot of responsibility.”

Richard explains that lawyers in the human rights field ask the affected individual to trust then and share an extraordinary amount of personal information as well as their lives, and “sometimes ... that personal information is more important to them than whether they live or die in that moment”. Being appointed as the lawyer gets you in the door but trust needs to be earned. It “is an extraordinary privilege to be granted to have that role, both in our community and in that person’s life”.

Richard advises MLS students interested in human rights law to begin with a belief that you can make a difference. Issues of human rights are not “someone else’s problem or a problem someone else should be solving. Overcoming that gap between seeing the problem and being part of the solution is a critical step.”

Excellence (one of the four core values at the LCAC) is critical. “I don’t mean to sound harsh, but it’s not enough to have your heart in the right place... the system is stacked almost by definition against folks in the field of human rights.... And so develop a degree of skill and excellence, commit yourself to be very good at the things that you’re doing.”

Richard believes that engaging with the history of law is vital to human rights legal practice and hopes that it is taught early and well in the JD at MLS. He also recommends working to develop some of the skills which “are not naturally going to be taught in law school” such as empathy.

“That is a skill that is learned; it’s a muscle that is exercised and grows stronger. You might not find as many opportunities as you’d like or hoped for in the halls of the law school. So make sure you’re doing other things to develop that sort of repertoire of skills which will stand you in good stead in human rights.”

With that, we leave Richard to his well-earned beer and to his role in “bending the arc of the universe” by winning and holding ground over the people “trying to bend it back the other way”.

Prepared by: Bronwen Ross and Kristi Young
JD Student MLS
July 2022