Why do I have the feeling that the Minister of Justice had not read the Chief Justice’s speech “Blameless babes” before rightly kicking for touch the suggestion to bring in “early release amnesties” as occur in other jurisdictions, but wrongly suggesting that the Chief Justice should not be open about her opinions on tackling crime? I for one want to know what the head of New Zealand’s Supreme Court thinks about these matters – I don’t want to wait until she retires before I gain the benefit of her wealth of knowledge and experience. I don’t agree with the proposal for ‘early release amnesties’ but given that this is referenced in a couple of lines of what is a considered, well-researched and thought-provoking 15 page speech, I would hardly have thought it deserved the wrath of a Minister I thought was one of this government’s exceptional performers. For the Minister of Justice to effectively say ‘we write the rules, you apply them’ suggests a degree of arrogance I have not seen from him before.
The title of the Chief Justice’s Annual 2009 Shirley Smith Address was a reference to the statement made in 1999 by Shirley Smith, New Zealand’s first woman law lecturer, that “we have to find out why blameless babes became criminals”. The Chief Justice identifies concerns about calls for increasingly punitive sentences despite the fact that more punitive sanctions have not made our communities safer and then sets about asking a series of very important questions; questions that she not only has a right to ask, but I would venture an obligation to ask. The Minister says he is interested in the drivers of crime and that is precisely where these questions are directed.
In the speech the Chief Justice traverses the international evidence about whether or not imprisonment is a deterrent to offending or re-offending. This seems to be a perfectly proper line of inquiry. Imagine if the government ordered free access to a drug in response to public demand (including perhaps a referendum) even though all the research indicated that it would cause more harm than good in the vast majority of people, but could assist a small number – the problem being you couldn’t tell in advance which ones would be harmed and which ones could be helped. Would it not be better to set out all the relevant information so that there could be an informed debate, and then leave the decision to an expert body that would make its decisions based on the strict evidence and none of the emotionalism?
And what about the victims of crime? The Chief Justice suggests that there should be a serious assessment of whether the emotional and financial cost of keeping victims in thrall to the criminal justice processes does help their recovery from the damage they have suffered or whether they are re-victimised. This is a vitally important question to ask.
International studies show that re-offending is higher for those sentenced to imprisonment than those sentenced to community-based sanctions and also that the longer the period of imprisonment the poorer the prospects of rehabilitation. So why are we calling for more imprisonment and longer periods of imprisonment when the evidence shows that this can be counter-productive?
So who are the offenders who are filling our prisons? Like the Chief Justice I am not making excuses for the offending I am looking for explanations and potential points of intervention. The prison inmates so often come from a background of family disruption & abuse and lack of educational attainment that the association is self-evident. It is time to address the drivers of crime, which is what the Chief Justice is saying – and actually it’s what the Minister of Justice is saying too. What did happen to that Drivers of Crime Ministerial Meeting I attended earlier this year?
The Chief Justice rightly states:
“All the evidence and all the informed opinions seem to point to the futility of believing that the causes of crime can be addressed by penal policy and criminal justice processes.”
This is what leads her to identify some strategies for reducing the prison population – she uses Finland as an example, being expert led, supported by a political accord that there would be no use of a “fear of crime” as a populist theme, and assisted by media restraint in reporting crime. The public supported the strategy because after a public education programme they understood that imprisonment does not reduce crime and therefore they were willing to turn their attention to what does reduce crime.
On this basis, the Chief Justice proposed
• Community education;
• Intervention strategies for those at risk;
• Better support for probation;
• Increased attention to mental health and substance abuse;
• A frank policy of being prepared to reduce the prison population by management.
It was only in the context of the last bullet point that the Chief Justice posed the question whether we were ready for a range of solutions including the reducing the length of sentences, expanding bail laws and an early release amnesty. If not, she said, we will have to keep building prisons and directing resources into incapacitation – a strategy that Shirley Smith (and many others) had no doubt would not work.
I am disappointed that certain elements of the media have done their usual once-over-lightly job of focussing on the single most controversial element of the paper without addressing what is a thoughtful alternative to those who have nothing sensible or evidence-based to add to the debate we must have if we want to reduce the crime rate. The Herald’s editorial was a stand-out exception and the Press reprinted most of the speech. Given that we need the media to be part of the solution the response to this speech by the broadcast media does not inspire me with optimism.
I am grateful that the Chief Justice has contributed to the debate and I congratulate her for her forthrightness and courage.