Scoop Election 08: edited by Gordon Campbell

Gordon Campbell: The Sian Elias speech about crime

July 20th, 2009

The recent speech by Chief Justice Sian Elias may have been greeted with some – sensational headlines – “Top Judge Suggests Prison Amnesty” – and some equally ropey press releases that the nation’s most powerful judge wanted to give crims a ‘Get Out of Jail’ card. In reality, the Chief Justice was sending out a carefully worded warning that the fear of prison doesn’t serve to protect society any more, if it ever did. It was such a good speech, it will almost certainly be ignored.

Top marks for trying, though. If society denies bail and parole and insists that risk be managed by a policy of containment, the Chief Justice warned, such an approach is likely to be unsustainable. “I question whether that strategy can responsibly be maintained. Changing it will require public acceptance that risk cannot be eliminated, and that the costs we are absorbing to try to do so, are disproportionately expensive.”

Oddly enough, much the same conclusion had been reached quite independently by former Black Power member Dennis O’Reilly. On his excellent blog Nga Kupu Aroha, O’Reilly recently wrote this, in his account of the tangi for gang leader Denis Hines :

The liturgy itself was fluid, funny, rambling perhaps. The Ratana Minister conducting the service was himself a former convict and he shared his own story as we meandered through the programme. We paused to pray. I reflected on Denis’ death, alone, away from whanau, dying of cancer, not in a hospice or even a hospital, but in a prison cell. Denied, I presume, those little but frequent comforts we normally extend to the mortally ill. We are creating a merciless penal system. With the reality of long and sometimes interminable prison sentences upon us, get used to more whanau and friends dying in jail. With the planned over crowding of prisons through double bunking and the re-opening of a substandard prison facility such as Mt Crawford, get prepared for unhappy and violent institutions. Consider the subtext of the message we send when we contemplate locking people up in facilities constructed of shipping containers. With our ‘crush and crate ’em’ philosophy, we will reap what we sow.

Hard to ignore that grim prospect, and the Chief Justice gave it chapter and verse. The full text of her speech is here.

So far though, Justice Minister Simon Power’s only response has been to play the politics of the issue, and rebuke her for raising the subject in public at all. Allegedly, Power was shocked – shocked ! – by some of the content in the Chief Justice’s speech, Power’s rebuke was not warranted, and it relied on a very narrow interpretation of the separation of powers between Parliament and the courts. Spare us. Right throughout her speech, the Chief Justice had been at great pains to acknowledge the primacy of Parliament and its laws. She was raising much wider issues – about whether for instance, the attitudes that have been driving our response to crime are sustainable, and are serving our community well. That debate is too important to be left to Simon Power and the Sensible Sentencing Trust to conduct on their own.

After all, New Zealand already has the second highest rate of imprisonment per population in the developed world – and as the Chief Justice added, the rates for Maori are right up there with the incarceration levels in the United States. If we continue with the current policy settings, our prison muster is estimated to reach 10,795 in eight years time. The cost in social and financial terms should be causing taxpayers some sleepless nights. Leaving aside the cost of building enough prisons to house such an intake, it currently costs about $100,000 a year to keep each inmate behind bars. Community sentencing costs only a fraction of this – and would still do so, even if it was properly funded.

To advocate a rethink is not to be soft on crime. Carefully, the Chief Justice stressed that some criminals need to be in prison, that rehabilitation is not the only purpose of the penal system, and that the anguish of victims deserves our compassion. Yet as she also argued – and this was probably the bravest part of her speech – a system that is being driven by victims’ rights and which is reliant on imprisonment to contain the risk to society will be, in the long run, self defeating.

The section about victims’ rights in the speech is worth expanding on. In the past, she concedes, victims were not well treated by the justice system, and were regarded as largely irrelevant to court proceedings. However, the risk with the current switch in emphasis, the Chief Justice warns, is that we may be turning back the clock : “ The detachment and public ownership of the accusatorial system of determining criminal culpability freed victims and their kin from the tyranny of private vengeance. “ That sense of objective detachment and scrutiny is now in jeopardy. Courtrooms, she says, can now be very angry places.

What the emphasis on the victim’s voice is achieving is a re-personalisation of criminal justice. In such a climate, judges may well be expected not simply to enact the law – but to express, through their sentencing patterns, their loyalty to the victim. 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.

“It seems to me,” the Chief Justice concluded, “ the real drivers of the increased prison population forecast, as a result of the denial of bail and parole, are our insistence that risk be managed by a policy of containment. I question whether that strategy can responsibly be maintained. Changing it will require public acceptance that risk cannot be eliminated, and that the costs we are absorbing to try to do so, are disproportionately expensive.”

Plainly, there are no easy options. In the past, bail and parole have been the tools by which society has balanced the various factors of risk, expense and rehabilitation – but high profile cases like the Graham Burton case and others, continue to undermine the public’s acceptance of that option. There has been, the Chief Justice observes, a public loss of confidence in criminal justice, and a lack of trust in criminal justice personnel and officials. ‘Cool, impartial justice,’ the Chief Justice notes, ‘is not getting a very good press these days.’

In fact – though she does not go this far – something of a downward spiral is in train. For political reasons, it becomes easier to join in blaming the bureaucrats – heads must roll! – than to allocate them the extra funds and personnel needed to restore public confidence in the system.

To her credit, the Chief Justice did not simply throw up her hands at this point and head for the exit. The only immediate alternative, she ventured, could be to reconsider the length of sentences the laws currently require. “That could be achieved by statutory changes to bring down the parole component of the sentence (affecting an overall reduction in sentence) and by early release amnesty. Are we ready for solutions such as these?” (Probably not, to judge by much of the response to her speech.) Yet if we can’t face up to such consequences, she says, we will need to keep on building prisons, which is a different form of the downward spiral. If only because, to cite the old maxim that she also quotes in her speech : ‘The threat of imprisonment doesn’t deter, and imprisonment does not reform.’

So far, the government has shown no appetite for engaging in a debate about the issues that the Chief Justice has dared to raise. These days, the fear of crime out in the community is more than matched by the fear in the Beehive of seeming soft on crime. Yet can we truly afford the social and financial costs of our current culture of imprisonment? Does any plan exist to address the economic inequalities that are the breeding ground for crime – or to assess and to fund the resources needed to treat the mental health and drug problems that routinely derail the process of rehabilitation?

Hardly. As Chief Justice, Sian Elias can only pose the questions, and hope that a debate will ensue. For now, the government is choosing to hide behind its narrow and mechanistic view of the boundary lines between the courts and Parliament. A genuine response would be seen as politically risky, given the mood of the electorate, and with no guarantee of success. As Dennis O’Reilly indicates, the ‘crush ‘em and crate ‘em’ approach is just so much easier to exploit, politically.


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    1. 23 Responses to “Gordon Campbell: The Sian Elias speech about crime”

    2. By Peter on Jul 20, 2009 | Reply

      Gordon, have you had a good look at the Sensible Sentencing Trust? I made enquiries about joining, just to discover the strength of its membership, and when I asked I was told it was “confidential”. Hardly the response of an open and popular organisation, I suggest. So how many members do they have, who funds it and why is it given so much air time by the media?

    3. By Daisy on Jul 20, 2009 | Reply

      Peter I think you will find that is because big business funds them quite significantly, I don’t have proof of course becauswe it is impossible to get proof. But they clearly have large amounts of money to throw around.

      I hope people read The Spirit Level and get to grips with the information there, the bigger the inequality gap you have the greater crime rate. Being a poor country doesn’t make crime rates high, but the inequality gap does, and the US us the no 1 developed country in this category.

      I fear no government has the guts to stand up and say this isn’t working, locking up people should be a last restort. California has about 300 people on life sentences for shop lifting…. is this where we want to go.

      We should use people in the community to pay reparation not in de-humanising prisons.

    4. By stuart munro on Jul 20, 2009 | Reply

      It is of course the natural response of any right wing government, to deny the connection between the social effects of their economic policies, and the level of failure.
      We can see the same sticking of heads in the sand over a coherent response to the world economic downturn. John Key, citing a need to improve productivity, uses this as a basis for essentially taking no action. Of course, a 10+% unemployment rate is going to kick the shinto out of our productivity anyway, but somehow this does not concern him. The productivity line is really only code for continued efforts to decrease wages. We might credit the idea if it had not been the prevailing (and spectacularly unsuccessful)policy of the last two decades.
      It is a well established property of systems like economies or societies, that if one makes no substantial intervention, one need not expect any change. Key et al seem to believe that, having thrown Clark et al out on their ear for conspicuous non-performance, the public will endure his and his friend’s non-performance indefinitely. It is true that he is prettier than Helen Clark, but not, I suspect, pretty enough to be allowed to screw up indefinitely.
      The burgeoning crime rate is only an indicator of a broader based social malaise; an indicator that our current leadership seems to believe it can get away with ignoring.

    5. By Cameron McLeod on Jul 20, 2009 | Reply

      The fact is that Elias is a judge, a member of the independent judiciary, she is not entitled to share publicly any political opinion. It does not matter if she is right or not, she is not elected and therefore it’s simply not her place to use her position of power to influence any person. this is not the first time Elias has stepped out of line, read her essay ‘another spin on the merry-go-round’, in that she spoke of constitutional matters, and seems to favour “judicial supremacy”. She, like Lord Cooke, has attacked parliamentary sovereignty on many occasions (R v Pora, Taylor v NZPB), this is not her position, she has no part to play regardless of her legal knowledge. Elias is there to apply the law she is given and to fill the gaps where is needed, nothing more.

    6. By Robert Boyd-Bell on Jul 20, 2009 | Reply

      I wonder whether part of the public pre-occupation with crime at a time when crime figures are actually falling is because it is easy and cheap news for the media to access and report. Police calls and court coverage are not expensive as journalism goes and fill more column inches and on-air minutes than they otherwise justify.

    7. By Adolf Fiinkensein on Jul 20, 2009 | Reply

      stuart munro, your logic is impeccable. Labour have governed for nine years and National for nine months but the problem is all laid at National’s feet. Why do you waste the band width?

      Daisy. Three hundred people on life sentences for shop lifting? Really?

      BTY our jails can’t be all that dehumanizing if gangsters can go about their business of running drug rings from behind the bars of the maximum security wing.

    8. By nznative on Jul 20, 2009 | Reply

      Well Adolf we’ve got the nats at the moment ………. before that it was labor ……….. before that the nats …. before that labor …….before that the nats etc etc etc. They are both to blame and although the last labor govt extended prison sentences and increased the numbers of police and expanded their powers idiots still go on about them being ‘soft’ on crime. They wern’t, they played the same stupid game as the Nats and might as well not of bothered ……..

      The Nats are however looking at privatizing parts of the justice system and never mind John keys magic cycle way ………… there is a industry worth BILLIONS awaiting exploitation by the private sector.

      Our tax dollars will be going to private prison operators …………. sorry about the lack of nurses and how expensive our free education system is for parents……… and just on the quiet, pensions are looking very dodgy in 20 years time, we dont know where the money will come from.

      Jail will be a huge growth industry under the Nats.

      Well done John Key.

      Perhaps in the future we can house the old pensioners inside them.

    9. By nznative on Jul 20, 2009 | Reply

      p.s We should all have notice how the Nats recently voted AGAINST measures which curtailed the marketing ofthe drug alcohol.

      The consumption of the drug Alcohol is directley linked to increased violence, crime and accidents.

      That National effectivly voted for the pushers of a a drug of violence shows how serious they are about tackling root causes of crime ……….

    10. By stuart munro on Jul 20, 2009 | Reply

      @Cameron Mcleod,
      Becoming a judge does not oblige a person to altogether abandon politics. Speaking at a function is hardly an abuse of judicial impartiality; better that political views are expressed there than in the courtroom.

      When you compare the integrity and sobriety of the average judge with the contemptible rabble of ill-bred buffoons that populate parliament, I certainly know whose views I want to hear more of, and whose views don’t about to a hill of beans. And Sian Elias is perhaps, a better than average judge.

    11. By Cameron McLeod on Jul 20, 2009 | Reply

      stuart munro, what is better, a government of elected parliamentarians? or a government of unelected judges? i think the former. under our constitution we have something called the separation of powers, all members of government should be aware of this, Elias has noted its importance a number of times, she knows her role, why does she insist on acting ultra vires?

    12. By Brian Marshall on Jul 21, 2009 | Reply

      Gordon, You are wrong to critise Simon Powers in this case. He has correctly identified that it is the role of the government to decide policy and the Judges to impliment the law as is. Judges MUST impliment the law, not try and change it.

      Peter, it sounds as if you do not agree with the sensible sentencing trust. If that is so, then you are free to set up your own counter group. but if you joined them or tried to, just to see their membership then you are a dishonest person. Shame on you.

      Daisy, I have no idea if there is a 100 people serving life in California for shop lifting, but if there is, it’s because they broke the law. I’m also disgusted by the constant harping on about social conditions being responsible for crime. That’s rubbish and excuses. Just because there is unemployment does not a criminal make.
      Don’t want to go to jail? Easy, don’t break the law. It’s not rocket science. Stop making excuses where there are none.

    13. By stuart munro on Jul 21, 2009 | Reply

      Cameron McCloud,
      There’s more than a slight difference of degree between a judge’s public address and a tyrannical rule by a self appointed judiciary.

      But lets us be quite clear: given the loathesome pack of lazy, corrupt, lying, hebephrenic buffoons and gibbering idiots who’ve been running NZ into the ground from Parliament for the last 30 years, I’d take a competent military dictator over that lot any day of the week.

      With great pleasure.

    14. By nznative on Jul 21, 2009 | Reply

      Brian sounds like one of those people who never accept the reasons ( or blame ) for things happening. His excuse’s are clear, simple and quite often wrong.

      Simon Powers has reacted in a typical ‘boot camp’ way and will be organizing two lines of mp’s through which Judge Ellias will have to run. She will get kicked, yelled at and abused.

      In the boot camp we dont need any pointy headed thinking or people speaking up about their area of expertise !!!!!.

      P.s who is paying the sensible sentencing mob, what is their membership and why wont they be honest about these things ?????????? .

      They are not supported by groups who would make a lot of money out of private prisons are they ?????????

      Maybe they are.

    15. By Martha Mitchell on Jul 21, 2009 | Reply

      @BC Cameron
      In the realm of NZ, based on founding documents, enacted formal statement, conventions (or as you prefer- “under our constitution!” ) Elias did not step outside her role.

    16. By cameron mcleod on Jul 21, 2009 | Reply

      Martha Mitchel, consider the spirit of the constitution principles of things such as the magna carta, the case of proclamations, the securities of tenure act, the bill or rights act 1688 and the judicature act. all i am saying is that judges have a very important role concerning our constitution, and that role is not to alter or influence the law of the land unless there is a hole which needs to be filled, or a matter which defies (in the words of Cooke LJ) ‘basic human rights’. i don’t think it is the job of elias to become involved in matters of parliamentary interest unless those matters “defy common right or reason”. by the way we do have a constitution, stupid or brilliant as it may be it is a one line constitution, parliament is sovereign.

    17. By brian marshall on Jul 21, 2009 | Reply

      How is it that you know me NZNative? There might be many reasons why someone does something, but have you been unemployed or in a low paying job?
      I have, but I worked at getting a job or a better job. I didn’t go and commit crimes just because of my circumstances.

      You are making excuses for those that break the law. If I speed while driving and get a ticket, it’s because I have exceeded the speed limit. I’ll pay the ticket or sort out an arrangment to pay it off. If I decide to steal a bicycle while drunk, that’s me deciding to steal.

      You are wrong in saying “His excuse’s are clear, simple and quite often wrong.
      ” since I’m saying there are NO excuses.

    18. By Martha Mitchell on Jul 21, 2009 | Reply

      Cameron first you said “under our constitution we have something called the separation of powers, all members of government should be aware of this, Elias has noted its importance a number of times, she knows her role”

      She does, she showed she must not flinch from her responsibility(role) to respond to a breach of convention at such close quarters.

      Absolutely I agree with you, Judges have a very important role concerning our constitution.
      Now you now say “consider the spirit of the constitution principles of things such as the magna carta?”

      Under the “spirit” of the magna carta she was also is well within “her role” .
      If she saw a breach and did not respond she would have been remiss in her duty/role.
      She did not violate the spirit of anything- except Powers.

    19. By Peter on Jul 21, 2009 | Reply

      Brian Marshall is right about one thing – I don’t agree with most of what the so-called Sensible Sentencing Trust says. But how he concluded that enquiring about the make-up of the organisation ( membership numbers, income etc) is dishonest is ludicrous. Does he really think trying to find out the credentials of an organisation which is allowed to lecture us through the media no accountability is somehow wrong? It would follow that he is against all media inquiry, all political inquiry – maybe all police inquiry, too?

    20. By Brian Marshall on Jul 21, 2009 | Reply

      Peter, Read your first comment. “I made enquiries about joining, just to discover the strength of its membership,”
      That is demonstrating a dishonest intention.

      I have no problem with open discourse,in fact I use my real name when commenting as I have nothing to hide, but attempting to find something out by being dishonest about my intentions is just that. Dishonest.
      I’m not a supporter or member of the sensible sentencing trust, but I agree with a lot they say. Maybe they are funded by people who actually care about VICTIMS or crime as opposed to those people who make excuses for criminals like the Auckland Council of civil liberaties or Howard league for Penal reform(Now where do those criminal defence lawyers get their funds from???)

      In fact I feel I might find out how I can make a $20 donation to them tomorrow and sign it “on behalf of Peter, the commentator on Scoop who likes to think that applying to be a member just to see how SST is funded and how many members it has, is not being dishonest”

    21. By ross on Jul 22, 2009 | Reply

      Just so we can be clear, if John Key or a government minister had said what Dame Sian has said, they would probably be feted or told that they were innovative, proactive, maybe even brave or courageous. Enough said. Please stop shooting the messensger and actually listen to the message.

    22. By Kevin Owen on Jul 23, 2009 | Reply

      What We Have

      Friday, 12 October, 10 – 11 am
      “Another one bites the dust: New Zealand’s latest experiment in criminal rehabilitation”.

      Associate Professor Greg Newbold, School of Sociology and Anthropology

      Since 1910, New Zealand has been engaged in a constant search to find a method of rehabilitating criminals that really works. In 1996, inspired by the work of Canadian criminologist Paul Gendreau and others, the Department of Corrections embarked on a new experiment called Integrated Offender Management (IOM). Based on a psychotherapeutic model, IOM involves a complicated and expensive process of identifying an inmate’s ‘criminogenic needs’, creating programs to address those ‘needs’, and applying the programs in the hope of preventing further offending. When initially conceived it was hoped that IOM would produce at least a 25 percent improvement in overall correctional efficiency. Eleven years on, with five-year reconviction rates remaining in the region of 86 percent, it appears that IOM has failed. This paper examines the objectives, strategy, and actual implementation of IOM in New Zealand, and suggests why the project inevitably foundered.

      Greg Newbold is an associate professor in the School of Sociology and Anthropology. This paper is taken from his most recent book, ‘The Problem of Prisons’, which is a comprehensive review of the New Zealand prison system and its litany of failed attempts to rehabilitate criminals.

      What we need

      The Program is a unique non-religious and non-medical prison-based crime and drug rehabilitation model.
      The six to eight-month program uses no alternate drugs and through education, nutrition and body disintoxification achieves a high rate of success. The inmates are put through the program. The best of them are then trained to run the program inside the prison. New teams of inmates are then trained and sent out to start the program in other prisons, making expansion rapid and cost effective. When they leave prison they are certified rehailitation experts and can start the program up in the community
      CRIMINON INDONESIA• Recidivism Rate of Criminon Graduates is 1.25%. Of 300 Criminon graduates released, only 4 returned to prison. The success rate is 98.5%.
      Indonesia has 365 prisons across 17,000 islands and after reviewing the success of the Criminon program in 6 of these, the Ministry of Justice has requested Criminon Indonesia’s cooperation in devising a roll out plan that will eventually bring the program to all of its prisons.

    23. By Tom Bennion on Jul 24, 2009 | Reply

      Interesting to note over at they are looking at a report that an astounding 1 out of 5 Prisoners in California Is Serving A Life Sentence, and raise the interesting question “whether our dominant form of market rationality facilitates prison growth and lengthy sentences.”

    24. By Sandi Kirby on Mar 25, 2010 | Reply

      I cannot believe my eyes/ears that the Penal Reform group think 33 years for Bell for murdering 3 people and leaving the survivor badly injured is too harsh!!!! BEYOND BELIEF!!! In the USA he would get 150+ years. Does Penal Reform give a toss about loved loves left?!!!!!!

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