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August 17, 2009 | by  | in Features | [ssba]

Blameless wisdom

Tania Sawicki Mead looks at last month’s stouch between Justice Minister Simon Power and Chief Justice Sian Elias.

There’s nothing quite like an intelligent public servant stepping out of place to give a newly instated government the heebie-jeebies. How can you package law and order rhetoric into a tasty media titbit if you have opinionated experts making reasonable statements all over the airwaves?

I imagine this is how the National Government viewed the recent speech given by Chief Justice Sian Elias at the annual New Zealand Law Society Women-in-Law committee. No doubt the Chief Justice also understood how frustrating her insights might prove to be, claiming she would have to alter the title of the speech (Blameless Babes) “because it is bound to be misrepresented as ‘Chief Justice thinks murderers are blameless babes’.”

It is a pretty unlikely inference given that anyone working within the justice system is likely to know far too much about the culpability of murderers and others of their ilk. However, that didn’t prevent a barrage of sensationalist headlines: ‘Top Judge Suggests Prison Amnesty’, ‘Dame Sian Elias crossed Constitutional Barriers—Key’ and ‘Chief Justice’s call for shorter sentences shocks Power’. Misrepresentations (and overuse of the word ‘shock’) worthy of Woman’s Day.

Sensible Sentencing Trust (can anybody tell me how they have become the ‘go-to guys’ for the anti-crime community’s sound bite?) spokesperson Garth McVicar said “I think [Dame Sian] is totally on the wrong track … talking about how people have choices and how they choose to commit crime or they don’t and why are so many people choosing to commit crime (sic) in this country.” Could we at least have someone capable of coherent sentences to represent this particular constituency?

So what exactly was Elias proposing, and why were her comments so inflammatory?

Her speech, the annual Shirley Smith address, began by explaining some of Smith’s thoughts on justice. What Shirley Smith was posing . . is the critical question: What turns blameless babes (as all criminals once were) into the stuff of nightmares?

Elias then went on to identify some key issues around the working philosophy of the justice system, and how it is perceived among the wider community.

Where once was optimism about reforms, she believes, we now have professional pessimism, a lack of community confidence (in the system) and increasing anxiety about crime. In this climate, calls for tougher sentences and an obsession with risk management have overridden more considered responses. While overall crime is decreasing, violent crime is climbing, and the issue is (unsurprisingly) of deep concern to those in the community who are affected and many more besides. A rejection of rehabilitative policies in the 1980s, to be replaced by more punitative measures, was followed by a dramatic rise in the crime rate, a ‘nothing works’ attitude, and a shifting of the focus of the debate over penal policies from officials to ‘safe communities’ advocates. We are now faced with the second-highest prison rate in the developing world, which is estimated to rise by 500 in the next decade.

Much of this seems to be a measured and insightful assessment of liberal perspectives on the justice system. And contrary to her detractors’ accusations, Parliament’s primacy in setting the justice agenda was reiterated a number of times. Elias did not directly challenge the government’s position on law and order; she was asking hard questions about our overall approach to crime, and whether we can sustain a system that attempts to ‘manage’ crime, instead of addressing its roots.

The Chief Justice then went further, highlighting a recent paradigm shift in the focus of criminal justice onto the victims of crime. Such a focus, she argued, puts at risk “the retention of the traditional accusatorial system of determining criminal culpability, with its detachment and public ownership. Courtrooms can be very angry places.” As seen recently in the Sophie Elliot case, a victim’s centrality to a case can do as much harm as good, especially for the victims’ family members. Elias acknowledged the pain that this exposure can create for victims. Moreover, she believes, this emphasis creates an atmosphere where a judge’s decision is interpreted as an expression of sympathy with the victim, as opposed to a cool-headed interpretation of the law. To quote the ever-wise Gordon Campbell of Scoop, in a recent piece on the same subject, “When taken hand in hand with the expectation that the criminal justice system can somehow eliminate the risk from crime, these punitive attitudes—grounded in fear and the thirst for vengeance—can be socially damaging, and unrealistic”.

But focusing on the victim is exactly what the National government intends to do. Indeed, it has already put in motion a review of the Victims’ Rights Act 2002, “to ensure victims’ rights are recognised across the justice system” (John Key’s speech to the Sensible Sentencing Trust, 19 April 2008). Key envisages “that this review will result in concrete amendments to the Act and will enhance victims’ rights and access to support service.” Most people, including Elias, believe that victim’s rights should be given more respect than previously afforded under the justice system. But, she believes, the emphasis on victim’s rights within the courtroom does little to encourage turning hot vengeance into cool, impartial justice, “which isn’t getting very good press these days”.

A system whereby the court believes its role to be the condemnation or forgiveness of a crime, regardless of the impact on the victim, is not one anyone wants to see. But a system where crime is interpreted solely in reference to how it has impacted lives, and not in reference to the court’s ability to minimise the chances of repeat offending (among other considerations), or what is intrinsically a just sentence, is similarly undesirable.

John Key wants to put victims at the forefront of law and order policy. “It’s time for policies that will truly deliver for victims. That’s what National will do.” Elias believes that much of this rhetoric is thanks to increasing suspicion and hostility towards professionals and officials working in the system. “Leadership about the debate about penal policy . . [has] passed to advocates for victims and safer communities.”

This sea change goes beyond championing victim’s rights. In a recent speech entitled ‘National’s Justice Agenda: Keeping Our Word’, Justice Minister Simon Power highlighted the many promises that the election campaign had made, and fulfilled, within 100 days. Power emphasised the National party’s crackdown on criminal groups and the creation of legislation to deny parole for repeat offenders, “to send the message that offenders who continue to commit serious acts of violence will take full responsibility for their actions.” He also highlighted changes to the Bail Act, tipping the benefit of doubt back “in favour of public safety” for borderline cases.

Power also defended his party’s adjustments to the focus of penal justice, in what seemed to be a pointed comment towards Elias: “I, for one, make no apology for any policy that elevates the status of victims relative to the offender—even if it happens to inconvenience those who have an institutional interest in the court process.”

National’s response to Elias’ suggestions, that she was crossing constitutional borders and offering opinion where she should be interpreting the law, missed the point completely (perhaps on purpose). A speech does not change the law. It does not challenge parliament’s authority. Nor is it likely, judging by the reaction, to drastically change people’s minds. What it can achieve is to promote the wisdom and experience of someone who, unlike Power, has worked within the justice system for 40 years and studied alternatives to penal vengeance.

In an illuminating section of the speech on the nature of National’s policies, Power explained that they intended to target “injustices that threaten public safety, or victims’ rights.” Unsurprisingly, there is little emphasis on addressing the root causes of crime. Injustice will be adressed, but only on a case by case basis. Injustices of upbringing, birth and education don’t threaten public safety until they morph into criminal activities. National’s perspective is that victims of crime have more rights than victims of structural injustice.

Governmental myopia is hardly breaking news. But if the National government really is concerned with crime in this country (and they should be—it’s costing us), they would do well to pay attention to Elias’ suggestions. Crime will not go away overnight because certain criminals are denied parole. The old maxim, which Elias quotes, still holds true; the threat of imprisonment does not deter, and incarceration does not reform. This is not to say that some criminals should be imprisoned, or that rehabilitation should be our sole concern. But we will not contain crime by containing prisoners for longer, harsher, more vengeful sentences.

Where inequality exists, so too will crime. This must be too bitter a pill to swallow for many of those who responded online to Elias’ speech, not to mention the not so Sensible Sentencing Trust. Accepting that some people aren’t just born criminals puts the onus back on communities to get to the heart of the issue, something that necessitates perhaps a little too much hard work. A culture of fear and condemnation is a lot less demanding.

To quote Shirley Smith, pioneering female lawyer, and one of our great legal minds:

“To provide only a prison at the bottom of the cliff is not a solution. Criminals will just go on falling into it, at great cost to the community.

“We have to find out how blameless babes become criminals. Writing as a lawyer who has read many probation reports I have no doubt that their life experience has been the cause. Society creates criminals, society must look at the conditions that create them.”

As Elias remarked, “Changing [the risk management attitude] will require public acceptance that risk cannot be eliminated, and that the costs we are absorbing to try to do so, are disproportionately expensive.” The penal system is our bluntest instrument of control; we should not overwhelm it with the burden of ‘solving’ the crime problem so that we don’t have to.


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