Friday 17 July 2009

Justice isn’t working

Justice It’s said by someone who should know better [see her 16-page speech here in PDF] that New Zealand must reconsider its whole approach to imprisonment and to the way we “create criminals.”

That we must consider the view that “imprisonment is a symptom of social failure”; that we must look more at the causes of crime rather then the effect of crime on its victims; that instead of locking people up the justice system should instead “find out why blameless babes become criminals”; that “effective rehabilitation” of criminals has suffered since “leadership of the debate about penal policy has passed from officials and professionals . . .  to advocates for victims and safer communities.”

In a complete reversal of cause and effect she asserts that “providing only a prison at the bottom of a cliff is not a solution” because the existence of that prison ensures “criminals will just keep on falling into it.”  In a complete insult to all of us she appears to put criminals and their rehabilitation ahead of the victims of crime and safer communities. And in a complete reversal of the principles of justice she wrings her hands on behalf of “blameless babes” who become criminals and get locked up, while failing to even consider what these “blameless babes” have done to get locked up, and to whom.

This is said by New Zealand’s Chief Justice Sian Elias in an address to the Wellington branch of the Law Society.  It is not her speaking in a personal capacity – it is our Chief Justice ‘speaking with her robes on.’  It is a disgrace.

“Society creates criminals,” she quotes a mentor approvingly, “society must look at the conditions that create them.”  That’s all very well, Ms Chief Justice, but before considering how “society creates criminals,” shouldn’t we – and you – first understand the damage that criminals do the non-criminal members of society. And since you’re the Chief Justice, shouldn’t you at least have some grip on what “justice” actually means?

In that light, I invite Ms Elias to to reflect on why we have a justice system in the first place.  Which is to say, if we follow Thomas Jefferson, to reflect on why we institute governments at all.  To paraphrase Mr Jefferson:

We hold these truths to be demonstrable in reality: that because the mind is our species' means of survival and full flourishing, human beings are individually possessed of certain inalienable rights, which are the rights to life, liberty, and the pursuit of private property and happiness; that to secure these rights, governments are instituted among people . . ; that all laws legislated by governments must be for the purpose of securing these rights; that no laws legislated by government may violate these rights . . .

Seems pretty straightforward.  Almost self-evident, you might say: that we all have rights; that government’s job is to secure those rights; that all laws legislated by governments must be for the purpose of securing these rights; that the agents of government must be agents of right, not of wrong.

So what sort of things violate our rights then?  That’s pretty straightforward too: assault, burglary, fraud, murder, that’s the sort of stuff we want protection from.  That’s the sort of thing for which “governments are instituted among people”: to protect us from our rights being violated: to ensure  “safer communities” (to use the phrase that soured in Ms Elias’s mouth) – i.e., communities in which you and I are safe from being assaulted, burgled or murdered by “blameless babes” and rehabilitating criminals – and the protection of our most basic rights.

This is the primary purpose of governments, and it delineates by extension the primary purpose of the justice system – which is neither to rehabilitate criminals nor to punish them, but to protect us from those who do us over.

Sure, if the rehabilitation of criminals can make us safer then by all means give it a go. And if punishing criminals by hard labour and long sentences will keep them off the streets and away from threatening our loved ones and our property, then that’s something to encourage.   But let’s not overlook the fact that the primary and principled purpose of the justice system is not to reduce the number of criminals, but to reduce the number of victims.

“Our prison system isn’t working,” you say? If it’s keeping at least some criminals off the street, then to that extent at least it is.


Elijah Lineberry said...

Oh yes, let's lock up people and give them 'hard labour'; yes, what a splendid idea - the engaging in primitive, medieval, sanctimonious 'punishment' to make everyone feel better; whilst we are at it we should also bring back the birch and cat-o-nine tails - that will REALLY make grubby middle class people feel better than everyone else!

Let's ignore the fact that 90% of prisoners should not even be in prison, that it is a training school to make people better criminals and that locking people up is barbaric; no, let's get stuck in and really return to Elizabethan values to tell ourselves what 'good people' we are.

Putting someone in a cell for 22 hours per day and treating them as a 'non person' is evil in my opinion.

What delights me is that the Chief Justice agrees with me. (a splendid fillie!)

hooligan said...

90% - as Pauline Hansen might say - please explain?

Shane Pleasance said...

Hear, hear, Mr L

hooligan said...

To expand a little: Shane & Elijah, what are the conditions that prisoners should be keep in? Whom should be in jail? And, what would you have them do with their time? And, who pays?

Lyndon said...

I think the point is that the state best serves peoples' right not to be crimed at by instituting a system that minimises crime.

Perhaps more properly, one that offers good marginal return on expenditure for crime prevention.

There is a *lot* of argument (and I won't be staying for it) but it turns out obsessing on longer sentences fails either way.

hooligan said...

Alright, I ask another way then: Assuming Elijah's 90% comment before was an embelishment, lets assume that the non-violent drug users and dealers, and so-called tax-cheats are only 20% of detainees. What are the rest there for, theft, rape, violence, murder? As far as I'm concerned I'm happy to pay for a bed, a blanket, shit - yet healthy - food a doctor on occassion, and protection from harm from others, and a very secure cell and yard. The prisoners should grow their own food, which would determine what's to eat. Anything else outside of that - restricted to books and perhaps music - is up to their family to provide and anyone else that gives a shit. Murders come out in a box. Thieves and rapists? I'm open to earlier release.

Luke H said...

I have a draft of a Corrections White Paper for the Libz that I've been working on sporadically. Statistics from my paper:

In 2006 there were somewhat more than 10,000 custodial sentences. These were for:

* Violent crimes: 2700 (27%)
* Property crimes: 3200 (32%)
* Drug offences: 800 (8%)
* Traffic offences: 2000 (20%)
* Offences Against Justice*: 1200 (12%)
* Other**: 380 (4%)

*Offences Against Justice are essentially failures to comply with or interference with judicial process, orders and conditions.

** "Other" includes a multitude of offences including tax evasion, firearms, liquor, censorship and other offences against bureaucracy.

Luke H said...

Here is another excerpt stuff from my white paper. Before you get stuck in with the inevitable criticisms, this is still a draft at this stage and, as an excerpt, lacks context.

This isn't official Libz policy either; at this stage it is just my opinion after reading a few articles and books about prisons.


Overall principles

In general, prison under a Libertarianz system would be for the primary aim of removing the offender from society for the duration of their sentence. HOWEVER, this does not necessarily entail that prisons ONLY exist for this purpose. They must also uphold the rights of prisoners (prisoners remain New Zealand citizens, and retain many if not most of their rights and freedoms), and I suspect we would be exceedingly cavalier if we denied that prisons should not also operate with a view towards reducing recidivism rates.


Obviously the Libertarianz has no problem whatsoever with the concept of contracting out prison services to the lowest bidder. There is only two caveats to this.

* Prison services must adequately adhere to and uphold prisoners rights as defined in law.
* Prisons must be located in New Zealand.

If prisoners were moved to a different country which could provide services at lower cost, the families of prisoners will be unable to reasonably visit them. Removal to a foreign country could be considered cruel and unusual punishment. Furthermore, it will be more difficult for independent prison watchdogs to observe conditions at the prison and ensure that prisoner's rights are being upheld. There are also questions of whether it will be possible to uphold New Zealand laws in a prison located in a different country.

Prisoners' rights

Although one reaction to prisoners is to "lock them up and throw away the key" one must stop and consider that only 30% of prisoners are in prison for violent offences such as rape or murder. A large proportion are traffic offences and property crimes. Some offenders will be there are manslaughter, where their offence is essentially be negligent or somehow responsible for an accident. Furthermore, there is always the possibility that prisoners may be innocent. There is a further moral argument: how are we to expect prisoners to reintegrate into society after release if we brutalise them and treat them like animals? Clearly, we have a moral duty to ensure that the rights of prisoners are considered.

The primary right of prisoners is the assurance that they will never be subject to cruel or unusual punishment.

Legal rights:

The rights of those arrested and convicted in New Zealand are explicitly set out in the Constitution of New Freeland.

* The right to due processes.
* The right to administrative appeals.
* The right to access the parole process.
* The right to be notified of all charges against them.
* The right to receive a written statement explaining evidence used in reaching a disposition.
* The right to file charges against another person, including other prisoners and guards.
* The right to a hearing upon being relocated to a mental health facility.

Luke H said...

... and some more:


Other rights:

* Freedom of religion, within reason (eg, religious prisoners do not have the right to extra facilities or the right to leave their cell more often than other prisoners).
* Prisoners must NEVER be deprived of meals, health care or access to bathing facilities
* Video surveillance of prisoners at all times to prevent guards assaulting prisoners as punishment. Prisoners may press assault charges against guards (and vice versa).
* Certain minimal visitation rights (eg once per week or once per month) for a reasonable length of time
* Right to a reasonable quantity of information eg books, magazines, newspapers, although this right could be taken away if abused (books used as missiles, etc).

In practise, there is a single policy which would go a long way towards preserving the human rights of prisoners; allowing any prisoner to request, at any time, to be removed from contact with all other prisoners (while keeping his other rights; i.e., this would not be the same as being placed in solitary confinement). Although this would somewhat increase costs, I believe this is an extremely important right which could all but eliminate inmate rape and assault.

In fact, if all prisoners could be separated at all times, this would eliminate the problem of violent gangs in prisons and the movement of drugs, cellphones, etc. However, this might be detrimental to the mental health of inmates, and prove logistically difficult.

Privileges (allowed in the event of good behaviour)

* Possession of personal property such as: cigarettes, stationary, a watch, cosmetics, and snack-food.
* Additional visitations.
* Conjugal visits at low-security prisons could be another incentive for prisoners to behave, lessen sexual tension, strengthen their support network, keep relationships alive, and increase the chances of reintegration after release.

Anonymous said...

Good posts Shane and Lineberry.

And good on Ms Elias for having the courage to speak up.

You may like to read about the costs of the Californian prison system and failure of the '3 strikes' stupidity:

Elijah Lineberry said...

Thanks Shane and Ruth; I should point out at this point (before the "Usual Wankers" get their knickers in a twist) I was expressing a personal opinion, not Libz policy.

I regularly debate prisons (and my opposition to them) with other Libz and my view is..ummmm...ha ha..'unique'

twr said...

I'm not sure why "property crimes" always seem to get an easy ride. In most cases they are more premeditated than violent crimes, and are a better indicator of someone who requires more effective "correction".

Anyway, Ruth, you say "good on Ms Elias for having the courage to speak up."

Why exactly? Why the hell should these mongrels get a free pass to do whatever the hell they like to other people and then get away with it because the prisons are a bit uncomfortable and crowded for them? What kind of message would that send them? How would you like it if someone beat the crap out of you, and then was let out early by some chardonnay socialist and then came back round to your place and finished the job?

hooligan said...

On the rehabilitation question, I spoke to Greg Newbold recently and fairly often and he beilves that 'imposed' rehabilitation to date has been a failure for most prisoners. Now, I'm not suggesting rehab is not a good idea, but rehab for murders? Rapists? Do theives really not know that they are doing wrong, can't help it, and need rehab? What is it you want to do with these people Elijah? I've read what you don't want? Also, privatise prisons? When have the libz supported that?

Lyndon said...

From memory the sex offender treatment has an effect and the serious violence units work, statistically, at least as well as some popular medications. WHich is a matter of reduced risk.

I'm not saying the typical serious violent offender is insane but you probably wouldn't recognise the way they think.

If you've been living in a personal world where hurting people a lot actually does seem senisible, then stopping requires more than an act of will.

Luke H said...

are a better indicator of someone who requires more effective "correction".

Well, that's just the point - there isn't any "more" effective correction to give them.

Most research into prisons shows that, for the majority of prisoners, no 'correction' of bad behaviour takes place. They are just absent from society, and the only people vulnerable to being attacked by prisoners are the guards and fellow prisoners.

Oswald Bastable said...

One part- a major one- in bringing the prison population down- is to remove the mentally ill from prison.

They be in a secure faciltiy for treatment, or in the case of many, permanent incarceration for the protection of the population and themselves.

Cut them out of the prison population and the dynamics will change!

twr said...

"who requires more effective "correction". "

Ok, that was a euphemism. I meant who deserves punishing more. Basically, if the bastard can't keep his hands off other people's stuff then he deserves to be locked up until he can.

ZenTiger said...

Just reading the paper today, I note that one guy was up to 140 convictions, another over 100 with 40 convictions whilst on bail, at various times.

Sometimes, people are in prison for "minor" offences, because it's the 100th time they've done it.

You have to wonder if someone can be caught driving without a license 30 times, how they get noticed. If they don't get the message fines and home detention brings, prison might actually be keeping some-one else safe.

There are many real solutions to reducing the prison population. Releasing prisoners for the sole reason the prison is crowded is not one of them.

Anonymous said...

Anyway, Ruth, you say "good on Ms Elias for having the courage to speak up."

Why exactly?

Because the prison system is dysfunctional, and objectively does not work. I've been speaking to a couple of libertarians (not Neocons - actual Libs) over the weekend, and they totally agree with Elijah. We think politicians should be the first ones in jail.

When you have people who call themselves libertarians like the guy at 'crusader rabbit' and Perigo hoping for the murder of one's political opponents (ie Obama) you know libertarianism in NZ has lost its mana.

shari said...

Political assasinations aside, let's bring back the Death Penalty; but only if the entire Justice System is revamped to include degrees of murder and manslaughter.

Justice Elias is merely practising freedom of speech. That she should do so from the bench of the Supreme Court is highly undesirable because the judiciary must always be perceived by the people to be separate and distinct from the Executive.

Are prisons overcrowded? Yes. Does rehabilation work? Maybe. Do prisoners emerge from within the walls more hardened in criminal ways? Yes.

There are but 2 choices. Build more prisons or reduce sentences/early releases.

Building costs money and space. Not in the budget and not in my backyard takes care of that option.

Reducing sentences is not an option because the law as it stands is not a deterrent to criminal behaviour.

Early releases, while too wide a suggestion, is not an option because there was a reason for the sentences being imposed in the first place.

Is Justice Elias suggesting the sentencing of all the lower courts are flawed?

To use Feynman's analogy, Justice Elias is attempting to resolve the overcrowding of prisons by applying the top-down model.

She forgets she is part of the problem that contributed to the overcrowding of prisons issue.

Are we also part of the problem?

Yes, if we are not taking an interest in educating the minds of our young.

Yes, for allowing many injustices to fall upon this nation without serious protest.

Yes, because Kiwis will never attain sufficient political passion to the point where they are willing to spill blood on the streets.