Gordon Campbell: The Sian Elias speech about crime

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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