Friday 11 July 2014

Conservative’s Law and Order Policy - Perpetuating Myths

by Kim Workman

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:
For Safer Streets and other Mad Ideas

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

The lyrics include the following lines; 

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). 

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

Let’s take a closer look at the myths being perpetuated within the Conservative Party’s ‘Law and Order’ Policy .  Having done that, we need to ask the critical question – will these policies produce ‘Safer Streets’ - the overriding theme for the campaign.
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.  
Imprisonment Rate per 100,000 population

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:

“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:

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’ rightsproviding 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. 

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.  
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'.  


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. 

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) 
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,
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):123146

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