Last Sunday, I was assailed by a full page ad in the Sunday Star Times, promoting the
Conservative Party’s Election policies. The first of its
policies, the Law and Order policy was shaped in response to
opposition claims that it’s policies were just plain ‘crazy’.
The
media summary can be found at a separate website, ‘Stand for Something’ and
takes the following position:
Call us crazy, but the way we
see it a politician’s job is to follow the instructions voters give them.
If we’re elected it’ll be
because you wanted us to give the Government a backbone - to insist they reform
the justice system as you instructed.
We want justice for victims of
crime and harsher penalties for those who do the crime. How loony is that?
Criminals will be made to do
hard work; there’ll be no time to moan about being hard done by.
But it’s not just us calling
for tougher sentencing; over 90% of you instructed the Government - via a
referendum - to harden up on criminals. You were ignored.
If you’ve had enough of this
arrogant and toxic behaviour from politicians - it’s time to show them the
yellow card.
On our watch referendums will
be binding, justice will prevail.
Anything else is just crazy talk
Stand
for Something - or is it Stand for Anything
?
If ‘Stand for
Something ‘ is a reflection of Conservative philosophy, then we are in in
trouble. The phrase comes from the quotation
“If you don't stand for
something, you will fall for anything.” It was originally attributed to one of
American’s founding fathers, Alexander Hamilton (1757-1804); First US Secretary Of The Treasury. Alexander may
have been good at quotes, but it is doubtful that he followed his own
advice. He was involved in a sex scandal, and fraud allegations. More recent attributions include Ginger Rogers, Malcolm X and Martin Luther King Jr.
The quotation means that without a strong belief or conviction, you are more susceptible
to arguments. If, for instance, you don't have a strong position on a political
point, you are more likely to believe what other people tell you. Cowboy singer Aaron Tippin, wrote a song ‘You’ve got to
Stand for Something’ around 1990.
His rendition gives weight to the
view that ‘country music’ is an oxymoron. When he sings you can feel the breeze from the
Republican flag waving in your face.
If you don’t believe me, watch this video.
Now Daddy didn't like trouble,
but if it came along
Everyone that knew him knew which side that he'd be on
He never was a hero, or this county's shinin' light
But you could always find him standing up
For what he thought was right (my underlining).
Everyone that knew him knew which side that he'd be on
He never was a hero, or this county's shinin' light
But you could always find him standing up
For what he thought was right (my underlining).
The emphasis is not on having a position that is supported
by the facts, but in having a position.
Positions of that kind can become in the course of a generation or two,
unassailable assumptions; even when there is no empirical evidence for
them. What Daddy does because he thinks
it’s right, his children do because they know it’s right. And so myths are born.
The late John Kennedy puts it together for us:
“The
great enemy of truth is very often not the lie--deliberate, contrived and
dishonest--but the myth--persistent, persuasive and unrealistic. Too often we
hold fast to the clichés of our forebears. We subject all facts to a
prefabricated set of interpretations. We enjoy the comfort of opinion without
the discomfort of thought.
[Commencement
Address at Yale University, June 11 1962]
Conservative’s
Law and Order Policies – the Perpetuation
of Myth
Myth No
1: That Politicians ignored the 1999
Citizen Initiated Referendum Referendum
The most obvious myth is the Conservatives claim that the government ignored the 2000 Citizen’s Initiated Referendum, (CIR)in which 90% of voters instructed it to ‘harden up on criminals’. It’s worthwhile going back to that referendum, - it was 14 years ago and many younger voters won’t know of its significance. It changed the face of penal policy in New Zealand for more than a decade.(1) It arose after the mother of Mr Norm Withers was violently assaulted in 1997. He gathered the necessary 300,000 signatures together and presented the petition to Parliament.
The
referendum asked the question:
Should there be a reform of our criminal justice
system, placing greater emphasis on the needs of victims, providing
restitution, and compensation for them and imposing minimum sentences and hard
labour for all serious offenders?’
There were major problems with the question - there was not one, but a series of questions
that were at odds with one another. As Pratt
points out:
“one
could vote for restitution for victims of crime, for example, without
supporting mandatory minimum sentences; and the ‘hard labour’ component would,
if enacted, have meant that this country was in breach of UN conventions
against the forced labour of prisoners to which it was a signatory.”(2)
The
question was drafted by Mr Graham Capill, the then leader of the Christian Heritage Party, a fringe political group with no
representation in Parliament who subsequently came to taste the joys of prison
as a convicted sex offender. Certainly, the
question had all the hallmarks of being written by an enthusiastic
amateur. To make matters worse, parliamentary officials declined the opportunity they
had been given under the 1993 electoral changes to request that the referendum
‘question’ be rephrased because of lack of clarity before it went to the
voters.
At that time CIR’s were non-binding on
government. Rather than ignoring its
inadequacies, the main political parties supported it. For Labour the CIR was:
“of
great symbolic importance because it gave everyone in this House an idea of the
level of concern about crime, our prison system, and the needs of victims”. (3)
For National,
“there
has been a clarion call from the community for tougher law and order measures”.
(4)
The referendum was so influential that it negated the expert
report of the 1981 Penal Policy Review Committee, which
recommended inclusive social and welfare programmes, with more humane, penal
measures. It is not therefore, true
to say that the CIR was ignored by government.
The
referendum informed three pieces of legislation in 2002; (the
Sentencing, Parole and Victims’ Rights Acts). Commenting later on the changes
variously brought about by the 2002 legislation, the Ministry of Justice
acknowledged the need to ‘respond to the 1999 referendum which revealed public
concern over the sentencing of serious violent offenders. New Zealanders also expressed a desire for
better protection from dangerous offenders.(5)
Prior to the 2002 general election, the government
started to interfere with the sentencing process. Judges were encouraged by the Labour Minister of Justice the Hon
Phil Goff, to make use of maximum
penalties, saying that ‘the current law
relating to sentencing does not adequately ensure that … sentences reflect the
seriousness of offending’. (6)
There followed a range of legislative measures all of
which resulted in as the Conservatives so delicately put it, ‘a hardening up on
criminals’ and ‘harsher treatment’. For
example:
·
The age of
eligibility for preventive detention was lowered from 25 years to 17 years –
the number of such prisoners has increased from sixteen in 1981 to 300 in 2012;
·
The Sentencing
Act made provision for restitution to victims from their offenders;
·
Under the
Parole Act, sentencing remission was abolished for all those serving sentences
of two or more years;
But that was only the beginning. The ‘hardening’ accelerated as the two main
political parties began outbidding one another in the ‘tough on crime’
war. National complained that the prison
numbers were not increasing quickly enough:
“opposition
politicians … question if the new laws are any tougher. They say the projected
prison population increase is less than that expected before the law was
changed.”(7)
ACT argued that American penal arrangements should be
the model for policy development in New Zealand, a country where imprisonment rates increased 700 per cent
from 110 per 100,000 of population in 1975 to 764 in 2011. That ultimately led to the introduction of New
Zealand’s own ‘three strikes’ legislation (the Sentencing and Parole Reform Act
2010).
The impact of the CIR was significant. As can be seen in the above graph, and the
table below, the imprisonment rate rose significantly. Take a look at the progressive increases from
2000 until 2012.
2000
|
149
|
2005
|
173
|
2010
|
197
|
2012
|
191
|
While there has been similar upward trends in
societies similar to New Zealand, the effect has not been as dramatic. In
Australia, the rate of imprisonment increased from 89 per 100,000 of population
in 1992 to 124 in 2012; in the UK from 90 to 149 from 1992 to 2013; in Canada,
it actually declined from 123 per
100,000 of population in 1992 to 114 in 2010. In New Zealand, it increased from
119 in 1992 to 204 in 2010 (and now sits at 194).(8)
Myth No 2: That government has failed to ‘Harden Up’ on Criminals
A number of measures were introduced that deliberately emphasise the
inferior status that prisoners have compared to the rest of society. In its submission to the Justice and
Electoral
Select Committee on the 2013 Human Rights Amendment Bill, the Robson Hanan Trust point out that of the eleven pieces of legislation passed in the previous three years, all were in breach of the Bill of Rights Act, eight related directly to prisoners and offenders. It concluded by saying:
Select Committee on the 2013 Human Rights Amendment Bill, the Robson Hanan Trust point out that of the eleven pieces of legislation passed in the previous three years, all were in breach of the Bill of Rights Act, eight related directly to prisoners and offenders. It concluded by saying:
“The collective impact of this legislation
accurately depicts the nation we have become.
It speaks of a nation in which the right against search and seizure and
the protections against arbitrary or unlawful interference of privacy is
ignored. A nation that is prepared to
punish offenders twice for the same offence and authorise arbitrary detention,
in breach of sections 26 and 22 of the Bill of Rights. A nation that not only illegally denies
prisoners the right to vote, but is prepared to subject them to
disproportionately severe treatment affirmed by Section 9 of the Bill of
Rights, resulting in disparities between offenders that are not rationally
based and result in grossly disproportionate sentencing”.(9)
Current proposals will allow for the indefinite
post-prison detention of some sex offenders and have as their cue similar sexual
predator legislation in the USA (indefinite psychiatric detention after their
prison sentence of those sex offenders judged to be suffering from a ‘mental
abnormality’). For such offenders, the end of their prison sentence, as set by
the courts, will no longer be a guarantee of release.
Myth No
3: That longer and harsher sentences
reduce crime.
Throughout the world expert advisory
committees or national commissions have time and again been told that there is
no credible evidence that imprisonment reduces reoffending. (10) One major study, which analysed the
findings from 50 prison effects studies dating from 1958 and involving over 300,000
prisoner subjects concluded that there is no evidence that
prison sentences reduce recidivism and some evidence that the relationship
works the other way around.(11) In the best studies they could find, it appears
that imprisonment is more likely to increase (rather than deter) criminal
behaviour upon release and that the longer the sentence, the more likely
prisoners are to reoffend on release. It is an expensive way of making bad
people worse. Why
sentence offenders to longer sentences, if they are more likely to
reoffend?
Punishment does not deter – even when it is
harsh
A large number of studies have found no clear
correlation between sanction severity and
levels of offending (12) (13) (14) A recent study found that harsh prison sentences did not deter criminal offending, and may well increase it. (15) David Brown, in a recent article, puts it this way:
levels of offending (12) (13) (14) A recent study found that harsh prison sentences did not deter criminal offending, and may well increase it. (15) David Brown, in a recent article, puts it this way:
…research
generally suggests that deterrence is, in any event, an overrated
notion—largely assumed, rather than proven. The research suggests that the
likelihood of getting caught is the primary deterrent; that there may be some
deterrent effect of imprisonment in relation to instrumental property crimes,
but little if any in expressive crimes such as assault and other violent crime;
and that the severity of punishment has no deterrent effect (16)
A recent Canadian study, which reviewed empirical research on
deterrence in several countries, urged its readers to conditionally accept the
hypothesis that crime levels are not affected by the severity of
sentences. (17)
Myth No
4: Putting More People in Prison Means
Safer Streets
The ‘lock ’em up’
policies of the last 20 years have failed. It is worth considering that there
would be no crime if everyone was in prison, and relatively little if all males
aged 15 to 35 were incarcerated.
Under the ‘lock ’em up’ solution, societies were
safer to the extent that the small numbers of dangerous people were
incapacitated, but when offenders emerged from prison – with no job prospects,
unresolved drug and mental health problems, and diminished connections to their
families, whānau and communities – they often returned to crime. Those working
in the criminal justice know that such an approach does not work.
A
recent benchmark study concluded that a 10% increase in imprisonment will at
the most produce a 2–4% decrease in crime rates (18) Closer to home,
the New South Wales Bureau of Crime Statistics and Research (NSW BOCSAR)
calculated that to achieve a 10% reduction in burglary rates through
imprisonment, they would need to increase the number of burglars imprisoned by
34%, at a cost of A$26 million per year. (19) The authors were careful to point out
that they did not take into account the potential effect of imprisonment as a
factor that might increase criminal behaviour after the offender was released.
It
is widely accepted and established that any crime-reduction effects of
imprisonment are soon subject to diminishing returns. High-rate serious
offenders are more likely to have been arrested and imprisoned earlier on, so that
as more people are sent to prison, they include increasing numbers of
lower-rate offenders who have committed less serious offences (20)
Myth No 5: Prisons Work
As long as prisons have been in existence people have
known they are one of the causes of crime. More than 200 years ago, the English
prison reformer John Howard called prisons ‘schools for crime’. Other effects include fracturing of family and
community ties, hardening and brutalisation, and the effects of imprisonment on
mental health. As the British
Home Office wrote in a 1991 white paper Custody,
Care and Justice:
“Imprisonment breaks up families. It is
hard for prisoners to retain or subsequently to secure law-abiding jobs.
Imprisonment can lessen people’s sense of responsibility for their actions and
reduce their self-respect, both of which are fundamental to law abiding
citizenship. Some, often the young and less experienced, acquire in prisons a
wider knowledge of criminal activity. Imprisonment is costly for the individual,
for the prisoner’s family and for the community.” (21)
The combination of all those factors
has led to a growth in recidivism. After remaining more or less the same year after year, 2009/10 rates of
reoffending by released prisoners, and their re-imprisonment, worsened, with
Māori recidivism rates consistently remaining around 10% higher than those of
the total prisoner population. (22) In-prison and post-release programmes
can sometimes work, but most in-prison rehabilitation is not resourced well
enough, or for long enough, to make a difference.
Myth No 6: That
Victims Have Not Been Supported
It is a myth to say that victims have
not been supported by government since 1990. However,
it is true to say that before 1991 victims were not supported well (or in some
cases not at all). It is also
true to say that the current legislative and policy framework for the support
of victims is significantly flawed.
Prior to 1991 government support for victims was
almost non-existent. There was no
mention of victims for example, in the 1981 Penal Policy Review report. The CIR talks about addressing the needs
of victims, with specific mention of restitution and compensation. But the political discussion soon shifted the
emphasis from victims’ needs to victims’ rights; providing
victims with more opportunities to give emotive ventilation in the court,
rather than preserving a balanced and calm judicial environment.
During this period, there was a transfer in the ownership of penal
power, from governments and their expert advisers to governments and those who
claimed to speak on behalf of the public at large.
Subsequently the Sentencing Act 2002 made provision for restitution to victims from their offenders. Under the Parole Act 2002, victims would have more of a presence both in court and at subsequent adjudications (parole hearings, for example), where they would be able to make impact statements on the consequences provided that if prisoners successfully sued the Department of Corrections, victims would be able to sue their offenders for any such windfall for up to six years after they left prison. The Electoral (Disqualification of Prisoners) Act 2010 took away prisoners’ right to vote.
Subsequently the Sentencing Act 2002 made provision for restitution to victims from their offenders. Under the Parole Act 2002, victims would have more of a presence both in court and at subsequent adjudications (parole hearings, for example), where they would be able to make impact statements on the consequences provided that if prisoners successfully sued the Department of Corrections, victims would be able to sue their offenders for any such windfall for up to six years after they left prison. The Electoral (Disqualification of Prisoners) Act 2010 took away prisoners’ right to vote.
The collective
impact of this legislation went well beyond the impact on prisoners, and the
increased rights of victims. The current
push is for victims to have more say in how much punishment their offenders
should receive – and to be allowed to say in court what they thought of their
offenders as well as give graphic details of the harm they had suffered.
It is
this focus on rights rather than needs, (as originally envisaged by the CIR)
that has led to an unsatisfactory environment for victims. Their ‘right’ to occupy this much more
central place in the criminal justice system often leads to animosity and
disappointment instead of progress toward healing.
Recent
British research evaluated the rhetoric used by British politicians to convey the meaning of ‘rights’
explored within media output, parliamentary speech-making and other forms of
political discourse. The analysis showed that victims’ rights are sometimes
advocated for at the expense of ‘offenders’ rights in public debate. The impact of this approach did not benefit victims, but
instead served to suppress consideration of meaningful support for victims,
worsen opportunities for prisoner reintegration, and construct a false
dichotomy between citizens who do not fall into mutually-exclusive categories.(23)
There is a policy opportunity for the Conservative Party to switch political thinking toward
policies which support and address victims’ needs, rather than focus on their
rights. Mary Achilles and Howard Zehr’s
article on the topic, and Victoria
University’s Jan Jordan paper, 'Lest we Forget – Recognising and Validating
Victims’ Needs’ are useful guides to the way things could be. Jan’s paper
was written after interviewing 15 victim of multiple rapist Malcolm Rewa.
This could be a significant point of difference from
the ‘victims’ rights’ rhetoric that has dominated political thinking for more
than the last fifteen years.
A Word of Encouragement
There needs to a Conservative voice in the law
and order debate - but this ain’t it.
The Citizen’s Referendum is now 13 years old, and public opinion has
moved on. As mentioned in an earlier
blog Seven Sharp and Penal Policy a 2013
Colmar Brunton Survey commissioned by the Ministry of Justice into
Public Perceptions of Crime showed that only 5% of respondents agreed that
prisons deterred people from committing crime, with the same number advocating
for harsher treatment, mostly in the form of longer sentences. Only 6%
considered that increasing rehabilitation in prisons would increase their
confidence in the justice system, while twice that number (11%) favoured
community based rehabilitation. In the
United States, there has been a significant a significant shift away from punitive attitudes
since 2001.(24)
The Conservative Case for Penal
Reform - ‘Get Smart on Crime’
Why not take a look at what is happening
in the United States? A great place to
start is the Right on Crime Movement. You
can’t get more Conservative than Jebb Bush, Newt Gingrich andGrober
Norquist, and the late Chuck Colson, founders of the movement – or more evangelically
Christian for that matter.
Bush
Tax
Their
Statement of Principles holds true to Conservative principles and as
they so aptly summarise, are
“grounded
in time-tested conservative truths—constitutionally limited government,
transparency, individual liberty, personal responsibility, free enterprise, and
the centrality of the family and community. All of these are critical to
addressing today’s criminal justice challenges. It is time to apply these
principles to the task of delivering a better return on taxpayers’ investments
in public safety. Our security, prosperity, and freedom depend on it.”
A value-based policy which addresses key issues is within grasp. Not only does it have the potential to reduce crime and reoffending, it is also a very smart move. So let's get 'Smart on Crime'.
Afterword
There is one other person is credited with using the ‘Stand for Something’ quote – civil rights activist Rosa Parks. But she added a sentence.
A value-based policy which addresses key issues is within grasp. Not only does it have the potential to reduce crime and reoffending, it is also a very smart move. So let's get 'Smart on Crime'.
Afterword
There is one other person is credited with using the ‘Stand for Something’ quote – civil rights activist Rosa Parks. But she added a sentence.
"Stand for something or
you will fall for anything. Today's mighty oak is yesterday's nut that held its
ground."
It’s not too late to reshape ideas. The Conservatives have referred to their own
policies as ‘mad’ and ‘loony’.
But if there’s no change in current policy,
today’s
nut in the ground is destined
to become tomorrow’s nut in the ground.
References
1. For a
more in depth exploration of this period, we recommend: Pratt, John, A Punitive
Society: ‘Falling Crime and Rising Imprisonment in New Zealand’, Bridget
William Books (2013) http://www.bwb.co.nz/books/punitive-society
2. Pratt,
ibid
3.
New
Zealand Parliamentary Debates (NZPD), 14 August 2001, Vol. 594, p.10916 (Barnett).
4.
New
Zealand Parliamentary Debates (NZPD), 30 April 2002, Vol. 600, p.15845
5.
Ministry of Justice, Reforming the Criminal Justice System, Government Printer,
Wellington, 2002, p.1.
6.
Sentencing and Parole Reform Details Released’, New Zealand Herald, 15 March 2001, http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=177396
7.
Tougher Laws to Raise Jail Numbers’, Dominion Post, 10 March 2004, p.3.
8.
See Julian Roberts,
Loretta Stalans, David Indermaur and Mike Hough (eds), Penal Populism and Public Opinion:
Lessons from Five Countries, Oxford University Press, New York,
2002.
9.
Robson Hanan Trust; ‘Submission to the Justice
and Electoral Select Committee on the Human Rights Amendment Bill 2013 pp 5-7;
10. Michael
Tonry (2008). ‘Learning from the Limitations of Deterrence Research’, In
Michael Tonry (ed.), Crime and Justice: A
Review of Research, Vol. 37, Chicago: University of Chicago Press.
11.
P. Gendreau, C.
Goggin and F.T. Cullen (1999). The
Effects of Prison Sentences on Recidivism, Ottawa: Solicitor General of
Canada.
12. R. Hogg (1999). ‘Mandatory sentencing laws and the
symbolic politics of law and order’, University of New South Wales Law Journal, Vol. 22, No. 1, pp. 263–79.
13. F. Zimring and G. Hawkins (1973). Deterrence: The legal threat in crime control, Chicago: University of Chicago Press.
A.
Blumstein, J.
Cohen and D. Nagin (eds) (1978). Deterrence and Incapacitation: Estimating the effect of criminal
sanctions on crime rules, Washington
DC: National Academy of Sciences.
14. Michael Tonry (2005). ‘The functions of sentencing and
sentencing reform’, Stanford
Law Review, Vol. 58,
October, pp. 52–3.
15.
Keith M. Chen
Jesse M. Shapiro (2007). ‘Do Harsher Prison Conditions Reduce Recidivism? A Discontinuity-based
Approach’, American Law and Economics Review, Vol. 9, No. 1, pp. 1–29.
16.
Brown, David (2010). ‘The limited benefit of prison in controlling
crime’, Issues in Criminal Justice, Vol. 22, No. 1, July, pp. 137–48, p. 142.
17.
Doob and C.
Webster (2004). ‘Sentencing Severity and Crime’ in M. Tonry (ed.), Crime and
Justice. A Review of Research, Chicago: University of Chicago Press.
18. W
Spelman (2006). ‘The Limited Importance of Prison Expansion’ in A. Blumstein
and J. Wallman (eds), The Crime Drop in America (2nd ed), Cambridge
University Press, Cambridge.
19. D.
Weatherburn, J. Hua and S. Moffatt (2006a). ‘How much crime does prison stop? The
incapacitation effect of prison on burglary’, Crime and Justice Bulletin 93,
NSW BOCSAR, Sydney.
20. J.J.
Donahue and P. Siegelman (1998). ‘Allocating Resources among Prison and Social
Programs in the Battle against Crime’, Journal of Legal Studies, Vol. 27, No. 1, pp. 1–43.
21. A.Johnson,
Stalled – A State of the Nation Report.
22. Home Office (1991). Custody, Care and Justice, London: HMSO, para 1.16.
23. Drake, Deborah H, and Henley, ‘Victims’ Versus ‘Offenders’ in British Political
Discourse: The Construction of a False Dichotomy’ The Howard Journal of Criminal Justice, Article first published
online: 10 DEC 2013 DOI: 10.1111/hojo.12057
24. Green D (2013a) Penal optimism and second chances: The legacies of American Protestantism and the prospects for penal reform. Punishment and Society 15(2):123‐146
24. Green D (2013a) Penal optimism and second chances: The legacies of American Protestantism and the prospects for penal reform. Punishment and Society 15(2):123‐146
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