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On The Left - Justice Gained, Not Denied

Crime and justice is probably one of the worst areas of public debate this country has. While there are plenty of areas where nobody actually knows what they're talking about, justice is probably the area where they say it loudest, and say the most stupid things. Talk back radio is a perfect example - you can't go ten minutes without hearing someone moaning about the crime rate, and how bringing back the death penalty would solve the nation's problems. Such people, by and large, are inevitably white middle class males aged over fifty. So are some of the talk back hosts. But that's another argument.

There are two pretty different views of justice which are floating around in the community's collective mind. One is a deeply conservative view that we've been following for almost all of this country's history. This view holds that the way to solve crime is to make the punishment harsher. It's probably best described as a `punitive' justice system, and appears to me to be based on the Old Testament injunction of `an eye for an eye, and a tooth for a tooth.' People who follow this line generally blame rising crime rates on weaker sentences, on being soft on criminals, on the lack of the death penalty, on the lack of hard labour in prisons.

It's interesting to look at the results of such a conservative view on crime and justice. We now suffer 90% more violent crime than we did in 1990. The rate of repeat offending for former prisoners is 80%. Borrowing from Matt Robson, "the Crimes Amendment Act 1993 increased the maximum penalty for both rape and unlawful sexual connection from 14 years to 20 years. And yet conviction for violent sex offences including rape tripled in number between 1988 and 1996."

Those three facts alone should make people think twice about where criminal justice is heading. Yet, they aren't. The fear those vast increases in crime has caused was the reason Norm Withers' referendum on crime last year got such a huge vote. Never mind that the referendum question meant whatever anyone voted for it wanted it to. Anyone concerned about crime voted yes in that referendum, from those seeking restorative justice to those who want tougher crimes, and probably the death penalty to boot.

The alternative view to a punitive approach to criminal justice is a restorative justice approach. The basis restorative justice operates on is to seek to provide a proper resolution for victims by making criminals face the consequences of their actions. It is also about rehabilitating offenders, and perhaps more than anything else is about making sure that victims' needs are met in the resolution of a criminal offence.

I want to look at these in a little more depth, because they are important. A criminal who commits, say, an armed robbery can currently go through the justice system without facing the reality of what they have done to the lives of their victims. That has to stop. One of the most powerful shocks the state can deliver to a criminal is simply to make them face what they have done. To make them face the victims of the crime. Often this isn't appropriate, for example in serious cases of assault and other violent crimes, but where it is appropriate, then crims should face their victims. They need to know they have injured real people, not just nobody.

Rehabilitation is the second priority. Anybody who pretends that locking someone down in a cell for 22 hours a day is going to make them all sweetness and light when they re-emerge from prison is simply stupid. And anybody who thinks that the solution to that particular problem is simply to lock people up for even longer periods of time probably needs to go to prison themselves for a few days. I'd imagine that spending 48 hours in Mt. Eden remand prison would shock a few people's viewpoints a bit. Prison shouldn't be a cruisy place, I'm not arguing it should. It should keep inmates busy, rehabilitate them and train them for life on the outside. That is what a sane justice system would aim for. The last thing prison should be is some dank university of crime, where people who have made a mistake (which is most criminals apart, generally, from repeat or serious offenders) come out as trained and hardened sociopaths.

Finally, the role of victims in the criminal justice system needs to be looked at again. Victims are often totally powerless. Their views are ignored, whether they want harsher or more lenient treatment of a criminal, because there is no way for their views to be heard. The family group conference system used for young offenders is one example of how involving victims in the punishment of offenders can actually work. You can't say that we have a successful criminal justice system when, as now, too many victims feel that justice has not been done.

As is probably evident by now, there's a huge difference between these two approaches. The restorative justice ideal is more optimistic about human nature than a conservative viewpoint, and in this case I think it's the more accurate way to theorise justice. There has to be something wrong with a society which would call for more of the same when the same has demonstrably totally and utterly failed to work.

There are wider ethical issues too. Human rights demand that we treat people as people. A restorative justice system treats all those involved in a crime as people, and attempts as far as possible to resolve the problem caused. A conservative system treats victims as passive recipients of justice over which they have no control, treats criminals as dumb animals for whom the only solution is perpetual imprisonment, and treats the prison system as part of the punishment, rather than part of the solution to ensure the offender doesn't repeat their crimes when they get out.

What is saddest about the whole debate is that things don't get discussed calmly and with reflection. Instead hysteria, wilful ignorance of the facts and attempts to paint the opposing viewpoint as the devil incarnate seem to be the tone that's taken more often than not. I hope that more intelligent comment might perhaps arise, with some sensible contributions to the debate. Matt Robson as associate Justice minister is the first person to have really put restorative justice on the agenda. It's up to interested parties to test the ideas and make sure something good comes of the opportunity.


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