Thursday 18 September 2014

Abolishing Parole and other Crazy Stuff

Krill and Womble
Independent Policy Consultants
“ In God and Gluckman We Trust"

To: The Rt Hon John Key
From:  Wilson Womble

Abolishing Parole and Other Crazy Stuff -  Keeping the Conservatives At Bay

1.0      Introduction

Dear Prime Minister,

1.1       This paper provides you with independent advice on the possibility post-election, that there will be a minority Conservative enclave in Parliament who have declared an intention to join forces and lobby for the return to a ‘tough on crime’ law and order policy , which includes the abolition of parole, a ‘three strikes for burglary’ policy, and increased imprisonment for a range of offences.
1.2       You have sought independent advice on the merits or otherwise of moving away from rational, evidence based approaches to the reduction of crime and reoffending and back to the retributive policies adopted by successive governments from 200 to 2011, which resulted in a significant increase in imprisonment levels, at a time when the crime rate was steadily reducing.  

1.3 This paper was written without recourse to official departmental or Cabinet papers and documents that inform the government’s Reducing Crime and   Reoffending Strategy, which over the last 3 years, has facilitated significant reductions in the crime rate.  It is written from the viewpoint of an independent external observer. 

1.4  We have waived our fee on this occasion, and ask instead that you make a donation to Women’s’ Refuge. 

2.0 The Current Situation

2.1       We understand that the Conservative Party and  ACT  (and possibly NZ First?) may either severally or jointly  advocate for a return to pre-2011 policies, which will generally result in  longer prison sentences, and harsher treatment of offenders.  You have asked us to consider whether there is (a) any positive political gain from agreeing to such measures, (b) what the impact of such measures will have on the government’s Better Public Service Reducing Crime and Reoffending Strategy, and (c) whether there is an ‘alternative discourse’ available which will be more effective in reducing crime. 

2.2   There are two issues currently on the table.  The first is the Conservative’s proposal to abolish parole.   The second is ACT’s proposal to introduce separate 3 strike  legislation for the offence of burglary, and introduce a new offence of  ‘home invasion’, with a  prison sentence of 25 years. 

2.3   We will deal with each policy in turn, consider the evidence  for both, and then propose ‘alternative policies’  which have the potential to make further in-roads into the reduction of crime and social harm. 

2.4  The main protagonists for  these policies are Colin Craig  and Garth McVicar of the Conservative Party, and Jamie Whyte of ACT.  Advisers to those parties probably include Stephen Franks, who has publicly called for the abolition of parole, and David Garrett, for ACT.  Both men have been M.P.s, and both have provided legal advice to the Sensible Sentencing Trust.  

2.5  Both ACT and the Conservatives have copied policies from the USA and UK.  While the UK   is currently pursuing a retributive agenda, there has been a remarkable shift in the USA toward state level bipartisan agreements to reduce levels  of imprisonment.   As these changes have become embedded there have been unexpected outcomes, both in relation to reduced offending by released prisoners, and improvements around public safety levels.  This paper will refer to those changes and the consequences of developing similar strategies in New Zealand. 

3.0  The Abolition of Parole

3.1  The key features proposed by the Conservative Party are that:
  • A mandatory sentence would be imposed i…e.” 9 years means 9 years; life means life
  • The Parole Board will apply release conditions and ensure they are enforced. ( It is unclear how they would ensure release conditions were enforced.)
 3.2 Stephen Franks has most clearly articulated the case for abolishing parole.   He differs in one respect from the Conservative’s approach.  His preference is to let judges set the release supervision conditions at the time of sentencing, and allow them to be relaxed on application at release, or by the Prison Manager.  The Prison Manager could remit up to 10% of the sentence as an incentive for good behaviour. 

3.3 Stephen Franks has provided the most detail, and argues for a model similar to that of the US Federal system, which ended parole for most crimes in 1996, and instead provides in most cases for a period of mandatory  supervision at the end of most sentences.  He argues that this approach would work for the following reasons: 
  • ·         There is no evidence that prison populations would explode, if parole were cut back. 
  • ·         Ending criminal expectation of parole dramatically increases certainty, which will act as a deterrent to reoffending; – which in turn would result in judges reducing sentence lengths. 
  • ·         Because much of the serious crime is committed by a relatively small population of career criminals, the change would affect serious offenders being released early from prison and reoffending. 
  • ·         There is no evidence that parole works any better to reduce reoffending than supervision at the end of the judge-given sentence.

3.4 Franks does not say how Judges would enforce conditions following release; whether   through a Probation or Parole Officer, or through some other kind of enforcement or compliance process. 

4.0  Comparing the Proposed Abolition of Parole in NZ to the US Federal Prison System

4.1 A recent report from the Urban Institute, [1] depicts a Federal Prison System in crisisComparisons before and after restrictions on  parole were imposed, paint a very different picture from that offered by Franks.  In  summary:
  • ·         The federal prison population has escalated from under 25,000 inmates in 1980 to over 219,000 today.
  • ·         In 1986, only 50 percent received a prison sentence, over 37 percent received probation, and most of the remainder received a fine.[2]  In 2011, more than 90 percent of convicted federal offenders were sentenced to prison, while only 10 percent got probation.[3] 
  • ·         At the federal level, all offenders must serve at least 87 percent of their sentences, (due to the restrictions on parole) while, at the state level, most serve a lower percentage and nonviolent offenders often serve less than 50 percent of their time.[4]
  • ·         The average federal prison sentence in 2011 was 52 months,5 generally higher than prison sentences at the state level for similar crime types.[5] 
  • ·         This prison population growth has resulted in Federal prisons  currently operating at between 35 and 40 percent above their rated capacity; [6]
  • ·         The federal prison system’s budget request for 2014 is $6.9 billion, which is more than a quarter of the Department of Justice’s budget. That share is projected to grow, taking resources away from other public safety priorities.[7]

4.2  There is considerable support for reform, with Attorney General Eric Holder stating;  
'This overreliance on incarceration is not just financially unsustainable -- it comes with human and moral costs that are impossible to calculate.'  It was Holder who said in a statement last year: 'Too many Americans go to too many prisons for far too long and for no truly good law enforcement reason.'
4.3  Proposals to reduce the prison numbers in the Federal system include: 
  • ·         Reducing mandatory minimum sentences and amending statutory penalties downwards;

  • ·         Allowing Judges to exempt an offender from a mandatory minimum sentence if he or she meets certain criteria.

  • ·         Under truth-in-sentencing laws, inmates must serve their entire sentence, except what is subtracted for good conduct. Lowering the minimum amount of time served to 80, 75, or 70 percent could go a long way toward easing overcrowding—without losing the “certainty and severity of punishment” that truth-in-sentencing laws were intended to guarantee. Reducing the minimum amount of time served to 75 percent would save $1.079 billion in 10 years. In other words, parole by another name.

  •       Early release of elderly and terminally ill prisoners

  • ·         Federal prisoners can receive reduced sentences for good conduct (except for those with life sentences or with less than a year to serve) and participation in an intensive drug treatment program. Expanding such opportunities could free up bed space through the early release of those who participate in programs proven to cut down on recidivism.

  • ·         Incentivize prisoners to engage in conduct and activities that lower their risk levels during the course of incarceration.  Low risk  prisoners  would earn more credits and would be released early to serve the remainder of their prison terms on home detention. 
5.0  Can the US Federal Prison System Support the  Case for Parole Abolition?

5.1  Stephen Franks case for the abolition of parole cannot be substantiated by the Federal Prison experience, for the following reasons;

 (a) The prison population has not reduced.  On the contrary it has increased exponentially;
 (b)   Removing eligibility for parole has not increased certainty about sentencing; nor has it acted as a  deterrent.  It is time to debunk the myth that prison acts as a deterrent.  The Department of Corrections puts great store in the in the work of Paul Gendreau and Claire Goggin, both pre-eminent in the analysis of psychology in a Correctional setting.  This is what they have to say, (minus the numerous citations); [8]
What, then, does the empirical record say about how well deterrence speaks to the principle aims of penology? The goal of protecting the public through incarceration related reductions in recidivism has been an unmitigated failure. There have been several meta-analyses of the effects of prison on subsequent reoffending These studies involved considerable sample sizes and different meta-analytic strategies, and the researchers involved had varying perspectives on the matter, as they represented different disciplines (e.g., criminology, economics, psychology). Nevertheless, the conclusions are remarkably similar. Imprisonment generally results in increases in recidivism in the range of several percentage points. Furthermore, when moderators such as differences in sentence length,  higher versus lower prison security level, inmate age and risk level, and the quality of research design have been examined, the results of the meta-analyses do not support deterrence theory. 
…..As for harsher prison conditions (i.e., effects of higher security levels on recidivism), the results point to increases in recidivism of up to 14%;
…….. In conclusion, the meta-analyses are conclusive: Prisons are not a deterrent to future criminal behavior.

5.2  Franks claims that serious offenders would be incapacitated in prison for longer periods, thus reducing their likelihood of reoffending in the community.   However, he takes no account of the impact mandatory sentencing has on minor offenders.  In the Federal system, and prior to the Sentencing Reform Act of 1984 and mandatory minimums for drug offenses, a quarter of all federal drug offenders were fined or sentenced to probation, not prison. Today 95 percent are sentenced to a term of imprisonment.  The average time served before 1984 was 38.5 months, almost half of what it is now. Reducing the number of drug offenders by just 10% will save the Federal system $644 million over the next ten years.  Previous reductions of crack sentences did not harm public safety or increase recidivism. 

5.3  Stephen Franks suggests that keeping criminals in prison for longer, prevents them from committing crime in the community, and results in a reduction in reoffending.  However, the USA research is clear; the early release of inmates for program participation has no significant impact on recidivism rates, nor does it compromise public safety.[11] 

5.4  Efforts over the last ten years to reduce the US prison population has led to some startling results.  There has been efforts across the States to reduce the prison population, with modest reductions in many States.  Recent research by ‘The Sentencing Project’ shows that over this period  three States, New York, New Jersey and California, reduced the size of their prison population by over 25% - yet the crime rates in those States have declined faster than the national average. [12]  

5.5  In summary: 
  • ·         New York and New Jersey led the nation by reducing their prison populations by 26% between 1999 and 2012, while the nationwide state prison population increased by 10%.
  • ·         California downsized its prison population by 23% between 2006 and 2012. During this period, the nationwide state prison population decreased by just 1%.
  • ·         During their periods of decarceration, violent crime rates fell at a greater rate in these three states than they did nationwide. Between 1999-2012, New York and New Jersey’s violent crime rate fell by 31% and 30%, respectively, while the national rate decreased by 26%.  Between 2006-2012, California’s violent crime rate drop of 21% exceeded the national decline of 19%.
  • ·         Property crime rates also decreased in New York and New Jersey more than they did nationwide, while California’s reduction was slightly lower than the national average. Between 1999-2012, New York’s property crime rate fell by 29% and New Jersey’s by 31%, compared to the national decline of 24%. Between 2006-2012, California’s property crime drop of 13% was slightly lower than the national reduction of 15%.
5.6  While it might seem intuitive that reducing prison populations would negatively impact public safety – or conversely, that declining crime rates would drive down levels of incarceration – such a relationship has generally been shown to be relatively weak. This is because just as forces beyond crime rates affect incarceration levels, forces beyond incarceration affect crime.

5.7  Research by the Pews Charitable Trusts comes up with similar results.  The lack of connection between increasing prison rate and a declining crime rate is illustrated by comparing Connecticut and Idaho’s performance between 1994 and 2008.  Connecticut’s prison population grew by a modest 5%, yet it achieved a 47% reduction in the crime rate.  Idaho on the other hand, achieved a 103%  increase in the prison population over the same period, and its crime rate reduced by 47%. 

5.8  These prison population reductions have come about through a mix of changes in policy and practice designed to reduce admissions to prison and lengths of stay. The experiences of these states reinforce that view that criminal justice policies, and not crime rates, are the prime drivers of changes in prison populations. They also demonstrate that it is possible to substantially reduce prison populations without harming public safety.

6.0  Does Parole Supervision Reduce Reoffending?

6.1  There is some truth in Stephen Franks comment that there is no evidence that parole works any better to reduce reoffending than supervision at the end of the judge-given sentence. 

6.2  As recently as 2005, the Urban Institute noted that ‘remarkably little is known about whether parole supervision increases public safety or improves re-entry transitions’.[13] Reviewing the situation in Britain, Shute (2004) remarked that after 35 years of research, it was still unclear whether parole release has a beneficial effect on recidivism.[14]  We are not aware of any research in New Zealand  on this issue, (or most other significant criminal justice issues, for that matter). 

6.3  Franks distinguishes between parole supervision and supervision at the end of a sentence - without detailing how they would be done and by whom.  Call it what you will, the way in which parole is done, is the key issue.  In some  jurisdictions it amounts to little more than a requirement for ex-prisoners to phone in on a regular basis, to assure the Parole officer that they are still alive. 

6.4  In others, there are a myriad of conditions and persistent monitoring – all of which, if overdone, may well lead to an increase of offending.  This response fits with ‘defiance theory’ in which punishment perceived as unfair, unjust or excessive, can lead to unacknowledged shame and defiant pride that increases future crime.  Both “specific” defiance by individuals and “general” defiance by collectivities results from punishment or surveillance perceived as unfair or excessive, unless deterrent effects counterbalance defiance and render the net effect of sanctions irrelevant.[15]

6.5  In some cases, there is a genuine mix of accountability and support, with therapeutic input and efforts to assist with accommodation and employment.  These fashions change across jurisdictions over time, and in response to prisoners who present at various levels of need and perceived risk.

6.6  Keeping the above reservations in mind, the research shows that offenders granted unconditional release would be more likely to reoffend, to reoffend more quickly, to reoffend more often and to commit more serious offences than offenders released conditionally into the community. Further, if supervision is the mechanism by which conditional release affects reoffending risk then it would be expected that offenders who receive minimal supervision would be more likely to reoffend, to reoffend more quickly, to reoffend more often and to commit more serious offences than offenders who are more actively supervised.

7.7  One  of the better pieces of recent research comes from the Australian Institute of Criminology. [16]     It sought to address two questions of importance to correctional policy:

1.      Does unconditional release increase the risk, speed or seriousness of further offending compared with conditional release?

2.      Does less frequent supervision increase the risk, speed or seriousness of further offending compared with more frequent supervision?

7.8  The results revealed that offenders who received parole supervision upon release from custody took longer to commit a new offence, were less likely to commit a new indictable offence and committed fewer offences than offenders who were released unconditionally into the community. The answer to question (2) is that more active supervision can reduce parolee recidivism but only if it is rehabilitation focused.

7.9  The Department of Corrections is currently doing an excellent job of making parole supervision a more therapeutic experience, and providing rehabilitation opportunities to maximise the potential for reducing reoffending.  The ‘Working Prisons’ strategy announced last week, includes the transfer of funding for post-release rehabilitation, which could well provide for a speedier shift to rehabilitation focused parole supervision. 

7.10  The current findings are also consistent with research recently carried out by Kuziemko [17] who studied the effects of a US reform that eliminated parole for certain offenders. She found that the prisoners affected by this reform accumulated a larger number of disciplinary infractions, completed fewer rehabilitative programs and reoffended at higher rates than inmates unaffected by the reform. Both sets of findings provide encouraging evidence of the benefits of parole supervision, if conducted in a way that addresses the criminogenic needs of the offender. The findings of the current study also raise an important question for governments. If parole supervision is effective in reducing reoffending despite the limited resources available for post-release support, how much more effective would it be if it were better resourced?

8.0  The ‘Stick and Carrot’ Approach

8.1  Stephen Franks in his fascinating blog, proposes yet another idea.

At the least,  prison management should be able to remit up to 10% of a sentence, so that they have some carrots for good behaviour, as they did up till the dopey reforms of the 1980s.  That was when the failed experiment began, in the hope that if we were nice enough to criminals for long enough, they might be nice back.

8.2  The idea that prison managers should exercise a judicial function, in remitting a prison sentence, will of course, be anathema to the judiciary, who will argue that  prison staff do not have the skill or experience to exercise that role – and they are right.  The reality is, however, that prison staff already have a dangerous level of influence over the parole function, in making recommendations to the Parole Board about who should or should not  be released.  There is a growing and justifiable concern about the extent to which prison management and psychologists have adopted a risk averse approach to the release of prisoners.  More often than not, prisoners are portrayed as presenting a risk to public safety’, or that they have ‘failed to  complete a programme of rehabilitation’.  The issue is not that they make recommendations of that kind, but they can do so in the absence
of external, independent review.  Rethinking Crime and Punishment in its supplementary submission to the Law and Order Select Committee on the Parole Amendment Bill  gave three examples which illustrate the issue.  

8.3  Stephen Frank’s  preference is to let judges set the release supervision conditions at the time of sentencing.  However,  there is no way of anticipating at the time of sentencing, how an offender is likely to respond to a prison sentence, and what conditions are appropriate at the time of release.   In long sentences, conditions set at the outset would most likely be meaningless at the time of release

8.4  It is not correct to say, as Stephen Franks does, that there have not been any ‘carrots for good behaviour’ since the 1980’s.  The Labour government introduced the Prisoner Placement System (PPS) in 2007 at the Otago Regional Facility, and intended to take the methodology into Springhill and the Women’s Prison at Wiri.   It was a system of rewards and sanctions with better behaved prisoners being accorded greater freedom, flexible visiting arrangements and so on.  Badly behaved prisoners would be placed in solitary confinement and denied access to rehabilitation programmes.  I am unaware as to whether it still functions, but given the damning report of the UN Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to New Zealand (CAT/OP/NZL/ 1) It shouldn’t. 

8.5  In a recent report, Paul Gendreau and others examined the  ‘carrot and stick’ approach, commonly known as ‘contingency management. (CM)[18]  Historically, there has been the longstanding dissatisfaction in Canada and the United States with earned remission/good time credit/parole systems.  Procedures have been criticized as being vague, overly complex, inconsistently administered, and with undue delays in the delivery of reinforcements thereby making the incentives meaningless to the prisoner and their custodians.  While they consider that from a theoretical perspective, CM programs have impressive construct validity, they advise against running such a regime in prisons which are unsafe or inhumane, or dysfunctional.   They are not therefore a current  option for  New Zealand prisons. 

9.0  Garth McVicar – The Impact of Parole on Victims

9.1  The other major advocate for the abolition of parole is Garth McVicar.  His opposition however, is emotive rather than rational. Franks quotes McVicar in this way;

"I have spent 13 years helping victims challenge a parole system that seems to have been designed to torment them…..
 “Victims are continually re-traumatized, the current system opens up old wounds and locks victims into the cycle of grief and ensures they cannot put the crime behind them.”

9.2 In introducing McVicar’s comments, Stephen Franks says that most criminals come up for parole at one third of their Judge-given sentence.  That is misleading.  A major contributor to the relatively static prison population has been a significant increase in time served by those subject to the parole system; from an average of 50% of sentence in 2000, to 75% in 2013.  About 23% of those eligible for parole currently are not released until at or near the Sentence Expiry Date.[19]

9.3  Garth is extremely adept at conjuring up an image of queues of victims  writhing in anguish at the prospect of appearing before the Parole Board in an effort to persuade the Board that the offender should not be released from prison.  This appeal to the emotions is difficult to manage, as any challenge is likely to be interpreted as a lack of sympathy for victims.  There is on the other hand, a view that the Sensible Sentencing Trust captures a small number of serious victims, and actively  encourages them to appear before the Parole Board – a tactic that is of itself traumatising. 
9.4  There is a prevailing public view that a significant number of victims experience traumatisation at the hands of the Parole Board.  This view has been successfully promulgated by some interest groups, and fed by political and media rhetoric.  It may also have had the unfortunate and unintended consequence of discouraging victims from engaging in the Parole Board process.  But it is not true.  

9.5  The Department of Corrections has done little to correct that view.  In its Regulatory Impact Statement to the Law and Order Select Committee on the 2013 Parole Amendment Bill took the view that around 100 registered victims would benefit from greater flexibility in scheduling proposal. It suggested that a reduction of Parole Board Hearings would mean that less registered victims would need to be notified. We consider that the assumption that there is a benefit in victims not attending Parole Board hearings is flawed.   it operates on the premise that victims simply do not want to engage with the Parole Board.  While it is acknowledged that there may well be victims who feel relieved that there is no scheduled Parole Board hearing, there is no obligation for them to attend in any case.  Moreover, it is important to not lose sight of the fact that the Parole Board hearing is not held for the benefit of the victim. It is held to consider the progress, and eventual release of the offender.

9.6  The reality is very different from that described by Garth McVicar.  There are about 5000 parole hearings a year and victims register in 14 per cent of the cases.  They make submissions in approximately seven per cent of all parole hearing, and around half of those (or in three per cent of all parole hearings) attend personally.  In 2011/12, 332 made written submissions, and of those, 163 made oral submissions i.e. personally appeared.  

9.7    We understand that the Parole Board has done some preliminary research into victims’ needs in regard to Parole Board hearings. We are concerned that in 86 per cent of all cases, victims choose not to register.   We are not aware of any research which tells us why the number is so low – for example, whether the reluctance is based on the idea that it is not necessary, or concerns that the experience may be too traumatic.  We know that a very small number feel personal pressure to attend and represent their views. In some cases it is likely they have an unrealistic expectation of the impact their words will have on the Board.

9.8  Further victim research could help us understand how to make the Parole Board experience less daunting, so that victims are more willing to participate.  We do know, for example, that on occasions the Parole Board has discussed with victims and offenders the opportunity to take part in a restorative justice conference. When such a conference is agreed to, the outcome for both offenders and victims has usually been mutually beneficial.  In our view, the Parole Board hearings should be constructed as a potentially positive experience for both victims and offenders, rather than being portrayed by the department as harbouring the potential for trauma and an impending risk to public safety.

9.9  We urge the Justice sector to resist from engaging in argument  which pits the rights of victims against the needs of offenders, or to use legislative processes to this end.  We do not consider that the removal of offenders rights inherently enhances the rights of victims.  Recent British research evaluated the discursive status of victims and people convicted of criminal offences. It explored 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 detailed how victims’ rights are sometimes advocated for at the expense of ‘offenders’ rights in public discourse. An examination of parliamentary debates confirmed the differentiation between ‘victims’ and ‘offenders’. 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.[20]

9.10   Garth McVicar is an expert at milking emotion.  Indermaur and Hough[21] argue that “anyone who wants to improve public debate about crime needs to be attuned to the emotional dimension of attitude formation.” The punishment of criminal offenders is a deeply emotive issue - and yet academics tend to favour the rational and logical over the emotive, and dismiss the latter as irrelevant and misguided.  The public, on the other hand, has little problem with “gut reactions” and supporting what “feels right” rather than what they are told is logically correct, or empirically proven.  That is why punitive policies and practises win votes - they meet the emotional needs of voters and tax-payers.  [22]

9.11  Emotions of fear, anger and disgust are certainly easy to elicit on topics of crime and punishment and, as Karstedt[23] points out, if encouraged, can provide strong ground for even more repressive policies. To reduce public input to that of emotional reaction denies the more pragmatic public interest in the effectiveness of sentencing and approaches to reducing crime.[24]  The relentless focus on whether the public want “tougher” or more “lenient” sentencing, or on issues such as name suppression, the public naming of sex offenders, and whether or not offenders should be bailed or paroled, focuses on the emotional dimensions of public attitudes, and allows both the media and politicians to exploit “the voice of the people” for their purposes. This is fundamentally disrespectful of the public, and  dismisses it as a viable force for policy development.[25]  

9.12 The next three years must be about engaging the public in an informed, rational and evidence-based discussion about effective criminal justice policy.  We recommend that you build on the emerging evidence of a significant shift in  public opinion.  There is growing evidence that the punitive attitudes that determined the course of a very punitive criminal justice system have run their course.  What evidence there is suggests that public attitudes were never as punitive as politicians imagined.   A 2013  Colmar Brunton Survey commissioned by the Ministry of Justice into Public Perceptions of Crime [26] 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.

9.13  A recent survey of political candidates, conducted by the Howard League of Penal Reform, showed that the ‘tough on crime’ rhetoric of former campaigns is notable by its absence.    Instead, the focus was  on such issues as the overuse of remand; the tightening rules around parole; poor access to education, work, skills training, rehabilitation programmes or good health care in prison; and, limited supports for those leaving prison. 
The vast majority of candidates (77%) stated that prisoners should be locked in their cells for a maximum of 8 hours a day, and 85% of candidates supported the extension of the ‘release to work’ scheme.  Even though no National candidates responded to the survey, it is usual that politicians test the public waters before committing to responses of that kind. 

9.14  There has not been a government funded survey of public attitudes toward crime and punishment since 2003.  If you are to embark on a criminal justice strategy that emphasises rational thinking over emotive rhetoric, we recommend that you conduct a survey of public attitudes toward crime and punishment early in your term of office, so that you have a clear idea of the level of support for reform. 

10.0  Three Strikes Legislation For Burglary

10.1  If the ACT Leader Jamie Whyte is in Parliament post-election, he will be seeking support for the introduction of separate legislation  to make the offence of burglary subject to a three strikes regime.  Whyte claims  that the UK legislation resulted in a 35% reduction in burglary since its introduction in 1990.  I recommend that you read Kim Workman’s piece on the proposal; Caught in the ACT – The Negligible Impact of   the UK Three Strikes Burglary Policy.Workman does go on a bit, but there are two key points;

(a)    There is no evidence at all to show that the three strikes legislation reduced burglary by 30%.  While there has been a 35% drop in burglary in the UK since 1999, there were similar drops for car crime and other property offences, for which there was no three strikes provision.

(b)      The UK three strikes provision is has been applied in only 22% of all 3 strikes cases. The judiciary avoid imposing the penalty in all but the most serious cases, and invoke the ‘exceptional circumstances’ clause in all others.  The result is the average time burglars spend in UK prisons is 7 months, compared to 16 months in New Zealand

“What did reduce UK burglary from 1999 onwards was the Burglary Prevention Initiative, which targeted communities with at least twice the average burglary rate. The Police established 55 projects, employing a range of activities such as target hardening of vulnerable premises, improved street lighting, high-visibility policing, promotion of neighbourhood/home watch, work with repeat victims. publicity campaigns/awareness raising, youth diversion initiatives and security patrols. A 2003 evaluation showed that the number of burglaries per month across the 55 projects was calculated to have fallen by 20%, compared to a fall of 13% in the comparison areas.

11.0  The Conservative Party and the God Factor

11.1  It is unlikely that Colin Craig will play the ‘God’ card; he has avoided doing so pre-election.  However, Craig and two of his high flying candidates have strong religious beliefs; one is a member of the Destiny Church, the other is a member of the Church of the Latter Day Saints. 

11.2  One of the great unsolved mysteries is why evangelical Christians have a tendency to promote policies which bear little resemblance to the gospel.  It is not a new thing.  Brockway noted in 1871,

If punishment, suffering, degradation are deemed deterrent, if they are the best means to reform the criminal and prevent crime, then let prison reform go backward to the pillory, the whipping-post, the gallows, the stake; to corporal violence and extermination! But if the dawn of Christianity has reached us, if we have learned the lesson that evil is to be overcome with good, then let prisons and prison systems be lighted by this law of love. Let us leave, for the present, the thought of inflicting punishment upon prisoners to satisfy the so-called justice, and turn toward the two grand divisions of our subject, the real objects of the system, viz: the protection of society by the prevention of crime and reformation of criminals.[27]

11.3  In 2008, Workman articulated his own concerns in a published article, Crime, Christians, and the Spirit of Punishment.  [28]

11.4  It is unlikely that Colin Craig will invoke God’s authority in the course of any cross-party agreement on law and order issues.  If he does, I suggest you as how his policies align with gospel values. 

12.0 Concluding Comment

12.1 The National-led government has recently moved from the primarily retributive policies that have dominated the criminal justice system since around 1995.  While the legislative agenda has continued to be primarily about crime control and suppression, and includes persistent breaches of the Bill of Rights Act, the operational level tells a different story.  The BPS Reducing Crime and Reoffending Strategy has moved the focus toward initiatives which are effective in reducing crime and reoffending, and genuine reductions in the crime rate. 

12.2  The basic difficulty with conceding that ground to either  the Conservatives, ACT, or even NZ First, is that there primary interest is in the delivery of retributive justice, and their policies demonstrate a lack of interest in or knowledge of, rehabilitation, crime prevention initiatives, or policies outside of punishment.  You have wisely responded to these calls for a return to the ‘tough on crime ‘ approach, by saying that you would look at it, but you think that National has the balance about right. 

13.0  Reducing Imprisonment Levels

13.1  The criminal justice system in New Zealand mirrors but to a lesser degree) the  current dilemma facing the US Federal Prison System. While we have produced some remarkable reductions in crime and reoffending, the prison population has remained persistently high.  The general public view is that the reductions in the crime rate should produce a parallel reduction in the prison population; but they have not.  While the Minister of Corrections confidently predicted in March this year that there would be 600 less prisoners by 2017 the current prison population stands at 8,754 as at 28 Aug - an increase of 119 prisoners on the 8,535 that were in prison 12 months ago.

13.2  The reality is that criminal justice policies and not crime rates, are the prime drivers of change in prison populations.  The last 12 years has seen a raft of legislation which has either made it easier to imprison offenders, or made it more difficult for them to leave.  There is only one way out of this dilemma, and that is to introduce a mix of changes in policy and practise designed to reduce admissions to prison, and their length of stay.  The US experience is that both can occur not only without threatening public safety, but reducing reoffending even further. 

14.0  Recommendations

14.1  We make the following Recommendations:

  •       That the Ministry of Justice conduct a survey on Public Attitudes toward Crime and Punishment by December 2015;

  •      That the BPS Reducing Crime and Reoffending Targets are reviewed and a new target is introduced which will require the Justice sector to reduce the imprisonment rate from 200 per 100,000 to 150 per 100,000 by December 2017; [29]

  •       That an Independent Review is carried out into the Department of Corrections system of establishing risk assessment measures, and the establishment of independent and external mechanism to assess and monitor the integrity of current assessment processes;  

  •      That a review of the parole be conducted, in order to increase its effectiveness in reducing reoffending, through active therapeutic based interventions.    

Wilson Womble
Krill and Womble
Independent Policy Consultants

[1] The Urban Institute, Stemming the Tide: Strategies to Reduce the Growth and Cut the Cost of the Federal Prison System November 2013
[2] BJS (US Bureau of Justice Statistics). 1987. “Federal Offenses and Offenders: Sentencing and Time Served.”
Washington, DC: US Department of Justice.
[3] Mallik-Kane, Kamala, Barbara Parthasarathy, and William Adams. 2012. “Examining Growth in the Federal Prison Population, 1998 to 2010.” Washington, DC: US Department of Justice.
[4] 2012. 2011 Sourcebook of Federal Sentencing Statistics. Washington, DC: USSC.
[5] Idem
[6] 2013c. “FY 2014 Performance Budget Congressional Submission: Federal Prison System Salaries and
Expenses” Washington, DC: US DOJ.
[7] Samuels, Charles. 2012. Utilization of Community Corrections Facilities Report to Congress. Washington, DC: US Department of Justice.
[8] Gendreau, Paul and Claire Goggin, Practising Psychology in Correctional Settings, Chapter 23 in The Handbook of Forensic Psychology, (ed Irving Weiner and Randy K.Otto) Wiley: 2013 pp. 759 – 794
[9] 2013. 2012 Sourcebook of Federal Sentencing Statistics. Washington, DC: USSC.
[10] BJS (US Bureau of Justice Statistics). 1987. “Federal Offenses and Offenders: Sentencing and Time Served.”
Washington, DC: US Department of Justice.
[11] Guzman, Carolina, Barry Krisberg, and Chris Tsukida. 2008. “Accelerated Release: A Literature Review.” Focus, Oakland, CA: National Council on Crime and Delinquency.
[12] Mauer, Marc and Nazgol Ghandnoosh, ‘Policy Brief: Fewer Prisoners, Less Crime’ The Sentencing Project, July 2014.   
[13] Solomon AL, Kachnowski V & Bhati A 2005. Does parole work? Analysing the impact of post prison supervision on re-arrest outcomes. Washington: Urban Institute
[14] Shute D 2004. Does parole work? The empirical evidence from England and Wales. Ohio State Journal of Criminal Law 2: 315–331
[15] Sherman, Lawrence W. Defiance, Deterrence, and Irrelevance: A Theory of the Criminal Sanction, Journal of Research in Crime and Delinquency November 1993 vol. 30 no. 4 445473
[16]  Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn, ‘Parole Supervision and Reoffending’ Trends and Issues in Crime and Justice, No 418, Australian Institute of Criminology, September 2014
[17] Kuziemko P 2013. How should inmates be released from prison? An assessment of parole versus fixed-sentence regimes. The Quarterly Journal of Economics 128(1): 371–424
[18] Paul Gendreau, Shelley J. Listwan, and Joseph B. Kuhns, Managing Managing Prisons Effectively: The Potential of Contingency Management Programs, 2011-04 A Corrections User Report
[19] Personal discussion with Peter Johnstone, Director of Research and Evaluation, Department of Corrections,   28 Jan 2014. 
[20] 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
[21] Indermaur, D. and Hough, M. (2002) “Strategies for changing public attitudes to punishment”, in J.Roberts and M.Hough (eds) Changing Attitudes to Punishment: Public opinion, crime and justice (Cullompton:Willan), pp 198-214 
[22] Karstedt, S.  (2002) “Emotions and criminal justice”, Theoretical Criminology, 6(3), 299 – 318. 
[23] Karstedt S (2002) Emotions and criminal justice. Theoretical Criminology 6(3):299–317.
[24] Doob A (2000) Transforming the punishment environment: Understanding public views of what should be accomplished at sentencing. Canadian Journal of Criminology 42(3): 323–340.
[25] Indermaur, David et al,  “A matter of judgement: The effect of information and deliberation on public attitudes to punishment”, Punishment & Society 2012 14: 161
[27] Brockway, Z. R. (1871). The ideal of a true prison system for a state. In E. C. Wines (Ed.),
Transactions of the National Congress on Penitentiary and Reformatory Discipline (pp. 38–65).
Albany, NY: Weed, Parsons.p.42
[28] Workman, Kim ‘Crime, Christians and the Spirit of Punishment’ in Bruce Patrick (ed) New Vision New Zealand.  Vol. 111, Auckland: Tabernacle Books 2008.
[29] If it is possible to reduce reoffending by 25% over a three year period, it is certainly possible to reduce the prison population by the same amount.  That would put New Zealand on a par with the United Kingdom, but still above Australia, and Canada.