The Summit Of Folly: Why ‘Middle New Zealand” Will Have The Last Word On Crime And Punishment.

Little Proposes, Middle New Zealand Disposes: If nothing else, the Justice Summit has shown Andrew Little what he is up against. The anger and hurt of Maori. The anxious attempts of various state institutions to meet the often contradictory expectations of their political masters. And last – but by no means least – the inescapable reality of “Middle New Zealand’s” veto: it’s indisputable power and its implacable determination to have the final say.

ANDREW LITTLE must be wondering whether his Justice Summit was worth it. Encounters between practitioners of deliberative democracy and participants in direct democracy are seldom trouble free. How could they be? Deliberators are elected, while participants in direct democratic forums are often self-selected, or, even worse, the delegates of special interest groups. By the time the Justice Summit drew to a close it was very clear that the formal practices of deliberative democracy and direct democracy’s roiling currents of passion and conviction had only Little in common.

If nothing else, the experience will have shown Little what he is up against. The anger and hurt of Maori. The radical programmes with which the latter propose to empty the prisons of their disproportionate ethnic muster. The anxious attempts of the various state institutions tasked with managing crime and punishment to generate outcomes that meet the often contradictory expectations of their political masters. And last – but by no means least – the inescapable reality of “Middle New Zealand’s” veto: it’s indisputable power and its implacable determination to have the final say.

That power was on full display in the opening hours of the Summit when Jayne Crothall, whose three year old daughter, Brittany, was murdered as she slept in 1997, was reported as breaking down in tears when a Maori woman claimed Pakeha did not know what it was like to be victimised.

“This has been a horrendous summit for victims of crime”, Crothall told the 700 Summit participants “People have been told they don’t know what it is like to be a victim because they’re European. There have been a lot of racist comments made. I have never heard so much racism.”

Sadly, it is Jayne Crothall’s words that Middle New Zealand will take away from the Justice Summit. Her accusations of racism will be amplified across the country by the Sensible Sentencing Trust who are also likely to highlight the words of University of Canterbury criminologist, Greg Newbold, who boycotted the whole event as a waste of time and told RNZ National that if Little is serious about reducing the prison muster, then he should “build more prisons and end double-bunking”.

Middle New Zealand: overwhelmingly Pakeha; gainfully employed; living in their own homes; law-abiding and tax-paying; is temperamentally impatient (if not contemptuous) of sociological and historical explanations for Maori offending. To their ears, the arguments of academics and “experts” about poverty and colonisation come across as sounding suspiciously like excuses.

Which is why nearly all of the evidence of Maori suffering will have been, at best, half-heard by Middle New Zealand. At worst, it will be taken as proof of the “Maarees’” manifest deficiencies as citizens. By contrast, and simply because they chime so completely with their own deep-seated prejudices, Jayne Crothall’s words will not only be heard, but they will also be remembered and angrily repeated. Such is the power of Pakeha confirmation bias.

The thing to remember about all of the colonial societies in which the settlers have triumphed demographically, is that the over-representation of the colonised in the criminal justice and prison systems will be welcomed, consciously or unconsciously, by the settlers as proof that their culture is still on top. Were only 15-16 percent of prison inmates Maori (i.e. the muster matched the percentage of New Zealanders identifying as Maori) a number (probably a distressingly large number) of Pakeha would interpret the statistic as evidence that the Police and the Courts were not doing their jobs.

Of course, Andrew Little can’t say that: not if he wants his party to win the next election. What’s more, the Labour-NZF-Green Government cannot even be seen to be addressing the gross over-representation of Maori in New Zealand’s prison system to aggressively. Middle New Zealand’s tolerance threshold runs out at the notion of convicted criminals being rehabilitated outside prison walls. They will accept intensifying rehabilitation efforts behind bars, and many would accept the desirability of every prisoner having their own cell. What they will not accept is criminals being “set loose in the community” before they have demonstrated conclusively that it is safe to release them.

That’s why Greg Newbold advised Andrew Little to “build more prisons and end double-bunking”. Because he is shrewd enough (as both an ex-con and an academic expert) to know that his is the only formula which Middle New Zealand (the people who determine the outcome of general elections) is ready to accept.

That Little gets this was illustrated by his last-minute offer to hold a special summit for the victims of crime. It’s a terrible idea. Such a gathering will, almost certainly, morph into a no-holds-barred display of Middle New Zealand’s retributive instincts. Little will be ordered to keep on doing everything that his just-concluded Justice Summit begged him to stop doing. The racist arbiters of crime and punishment in New Zealand will jubilantly exercise their political veto – and, God forgive them, Andrew Little and Jacinda Ardern will comply.

This essay was originally posted on The Daily Blog of Friday, 24 August 2018.

Emotion, Not Reason, Is Driving New Zealanders’ Attitudes Towards Crime And Punishment.

Who Do You Love? The battle over crime and punishment is largely determined by who emerges from the debate as the primary recipients of New Zealanders' empathy. Do we focus our emotions on the victims of crime, or on rescuing the perpetrators from the circumstances that led them to commit the offences which put them behind bars?

TRYING TO TALK with New Zealanders about crime and punishment is never easy. In our highly punitive culture, people who break the law generally receive very little sympathy from their fellow citizens. For most Kiwis the blunt formula: “you do the crime, you do the time”; is sufficient.

Asking New Zealanders why some people “do the crime” usually elicits an equally blunt explanation. Criminals are “bad bastards” – pure and simple. In vain do reformers point to the offenders’ dysfunctional upbringings: to the violence and abuse that more often than not has surrounded them since birth. The stock rejoinder thrown back in these “do-gooders” faces is: “Look, I know plenty of people who had difficult childhoods, but none of them ever stabbed a dairy-owner or raped and murdered a teenage girl.”

The reformers’ job is made even harder by the ordinary New Zealander’s genuine empathy for the victims of crime. Nothing inflames New Zealand’s “sleepy hobbits” like the handing down of a prison-sentence deemed manifestly inadequate to the severity of the offence.

The name “Sensible Sentencing” captures this phenomenon brilliantly. Conjured-up is the negative image of an over-educated liberal judge who has clearly paid far more attention to the report of some away-with-the-fairies psychiatrist than he has to the impact statements of the victim and/or her family. In the eyes of these citizens, a “sensible” sentence invariably involves locking-up the perpetrator and throwing away the key.

It does no good to point out that putting a bad person in prison almost never results in a better person coming out. “We don’t put them in prison to make them better”, say the sensible sentencers. “We put them inside to give their victims some justice and to keep the rest of us safe.”

Most of the people who say this sort of thing have absolutely no idea what a real prison is like – never having spent so much as a single hour locked-up in a concrete cell. They’ve never experienced the loss of personal liberty. Never been caged. Never faced an endless procession of grey, featureless days punctuated only by shattering displays of human cruelty. Never had to endure emotional and physical pain without the slightest prospect of care or solace.

Ensuring that most people never find out what prison is really like is one of the key objectives of those who seek to profit out of the incarceration of human-beings. For the big corporations behind private prisons, keeping the focus on the victims of crime is crucial.

All parents at one time or another fear for their children’s safety – imagining the very worst when they don’t come home on time. That’s why it’s so easy for them to empathise with those whose loved ones really have been injured or killed. Directing the fear and anger generated by violent crime against its perpetrators and those who defend them is a lot easier than trying to make the public understand what gave rise to the offending in the first place. The very last thing the private prisons lobby want people to say about the person in the dock is: “There, but for the grace of God, goes my son or daughter.” Or, even worse: “That could have been me.”

Keeping the focus away from the grim realities of incarceration also serves those with a vested interest in downplaying the whole question of the rights of accused persons. If people knew what being locked-up was like, then they’d be very careful to ensure that the presumption of innocence was respected and upheld.

It was the famous English jurist, Sir William Blackstone, who said: “It is better that ten guilty persons escape than that one innocent suffer.” It is perhaps the greatest achievement of New Zealand’s Sensible Sentencing Trust that the present reality of dozens of innocent persons spending months in remand cells for offences they will later be acquitted of does not enrage the New Zealand public. Their motto would appear to be: “It is better that ten innocent people remain locked-up than that one guilty person re-offends on bail.”

In a social climate such as this it is quite pointless to simply enjoin the government of the day to “do the right thing” and empty out the remand prisons, or, to bring forward the parole eligibility for those prisoners convicted of non-violent offences. Were the government to respond positively to such appeals its political opponents would have a field-day. “Look at them!”, the conservative politicians would scream. “They’re letting these criminals walk free!” The inevitable political backlash would almost certainly be fatal.

What’s required is a well-considered and well-funded campaign to bring home the realities of crime and punishment: the conditions that breed offending and the circumstances in which convicted offenders are expected to rehabilitate themselves. Such a campaign should aim to recruit not just lawyers and criminologists, but journalists, novelists, playwrights and screenwriters. Rousing human empathy is as much a mission for the arts as it is for the sciences – maybe even more so.

Watching movies like Twelve Angry Men, Dead Man Walking and The Shawshank Redemption will likely win more converts to the cause of improving our criminal justice system and the prisons it fills than reading lengthy learned articles in academic journals. On the vexed question of New Zealanders’ attitudes towards crime and punishment, reason, unaided by emotion, will never be enough.

This essay was originally posted on The Daily Blog of Friday, 22 June 2018.

Keeping Justice's Blindfold In Place

Blind Justice: The blindfold Lady Justice traditionally wears is to deny her the opportunity to be moved by either partiality or pity. Under our system of Justice only evidence brought before the courts can convict the accused. But the Sensible Sentencing Trust-sponsored "Christie's Law" would allow the suffering of victims to unbalance Justice's scales - fundamentally prejudicing the right of accused persons to a fair trial.

GARTH McVICAR is using the tragic death of Christie Marceau to secure a further erosion of New Zealanders’ legal rights.

In November of 2011 Miss Marceau was stabbed to death in her North Shore home and died in her mother’s arms. The man accused of attacking her had earlier been charged with her kidnapping. Over the strenuous objections of the Police, he had been remanded on bail to a house less than a kilometre from the Marceau home.

Mr McVicar’s Sensible Sentencing Trust (SST), with the full support of Miss Marceau’s parents, is now promoting what it is calling “Christie’s Law”: a series of measures which will make it much more difficult for judges to grant bail to people accused of serious crimes.

That Miss Marceau’s parents should want to prevent other families from enduring the horror and heartbreak which they have been forced to endure is entirely understandable. That Mr McVicar’s trust has fastened upon their grief in order to advance its private political agenda is despicable.

For there can be no disputing the SST’s radical right-wing politics. A brief perusal of “Christie’s Law” reveals that Mr McVicar and his supporters, by making the decisions of judges subject to a police veto, are attempting to undermine the independence of the New Zealand judiciary. They are also attempting to overturn what is arguably the most important of our legal rights – the presumption of innocence.

The presumption of innocence requires the state to prove the guilt of an accused person “beyond reasonable doubt”. And until such time as his or her guilt is proven, that person remains (and must be considered) innocent of the crime/s of which s/he is charged.

It is the presumption of innocence that makes the right to be granted bail so important. Without it, merely being charged with an offence could see the accused deprived of their liberty for days, weeks, months – even years. Time which, in the event of their eventual acquittal, can never be returned. The unreasonable denial of bail is, quite simply, an open invitation to serious injustice.

Of course, an absolute adherence to the logic of presumed innocence would be as dangerous as its persistent and unreasonable denial. To release accused persons whose actions, mental stability, and/or past history of offending render them a credible and serious threat to the safety of the public would be very wrong. Accordingly, we have given our judges the authority to refuse bail when, by granting it, people’s lives and property would be recklessly endangered.

In the overwhelming majority of cases that come before them our judges exercise this discretion wisely. But judges, like the rest of us, are fallible human-beings. In a tiny handful of cases they make a decision which, with hindsight, turns out to have been reckless and foolhardy. The decision to grant bail to the person accused of Miss Marceau’s murder clearly falls into this category.

The truly evil aspect of the SST’s promotion of “Christie’s Law” is that it pretends that the fallibility of our justice system is fixable. That if you threaten judges with sufficiently dire sanctions, and give police the power of veto over bail decisions, then the number of tragic mistakes will be lessened. What they leave unsaid, of course, is that in attempting to eliminate one kind of mistake “Christie’s Law” would almost certainly give rise to a host of others. Intimidated judges and over-zealous policemen would very soon begin to deny bail to anyone and everyone charged with serious crimes. The presumption of innocence would be turned on its head. Gross injustices, far from being reduced, would multiply.

New Zealanders should reject not only the measures contained in “Christie’s Law” but the very idea of attaching the victim of a fatal stabbing to such overt politicking. There is a reason why the prosecution of serious crime became the exclusive preserve of the state, and the SST’s posturing throws it into stark relief.

The administration of justice cannot be conducted impartially, or according to the dictates of reason, if it is in any way drawn into the emotionally charged environment of grief and anger to which the victims of crime, through no fault of their own, are remanded. It’s why Justice is always pictured wearing a blindfold. It is to prevent her from seeing the grief and anger of crime’s victims – lest, out of pity for their plight, she negates the rights of the accused.

No sentence which is driven by the raw emotions of crime’s victims can ever be “sensible”. Justice is not vengeance, and must never be allowed to become so. In using Miss Marceau’s name to achieve their political objectives, Mr McVicar and the SST are attempting to circumvent the duty we all share to keep Justice’s blindfold in place, and her scales in balance.

This essay was originally published in The Press of Tuesday, 21 February 2012.