The Law and Order Referendum
and other related issues in New Zealand
An excellent piece by ACT MP Steve Franks that was published in the Listener of January 27th 2001
The Listener website is here. Find out more about Steven Franks and ACT here. He also contributed this brilliant piece for The Herald late last year.
Are most New Zealanders rednecks when it comes to justice?
"Crime brings out the worst in politicians. It must have been revolting for you, an intellectual, to have to mouth that Act stuff; truth in sentencing, tough on crime - tough on the causes of crime, etc. Now at least you can put the redneck stuff away for two years, but I had expected better of you."
A journalist I respected hit me with that at the press gallery Christmas party. It taught me a lesson, as his colleagues joined in. I was stunned that they assumed I was so cynical. I learnt the strength of the establishment prejudice on crime, yet I was amazed that journalists rule out emotion on crime.
I thought of my meeting with Kylie Smith's mother during the election campaign. After 10 years her grief and anger remain sharp; about her grandchildren who will never be, because 15 year old Kylie was pulled from her horse, raped and murdered. The killer was on parole when he did it, and now he will be on parole again, free to have children he doesn't deserve.
"Trust shrivels with fear of strangers."
There is no need to feign passion about New Zealand's 30-year failed experiment with "offender-centered" justice. It has delivered rocketing crime figures. Behind each figure is at least one victim. All of us carry extra fear, and the expense of extra security. But most costly may be genuine compassion and a loss of routine trust in each other. Trust shrivels with fear of strangers.
Yet the journalists looked uneasy when I protested that being ashamed of the criminal justice charade was a reason for leaving my comfortable legal practice. Plainly, I was an unexpected zealot. Earnestness is not the recommended way of playing the political game.
The media sceptics also scoffed at my vision of Act's challenge. "Impossible" they said, to restore to New Zealand the mutual trust we grew up with. Then, even cautious parents let children, including infants, walk to and from school. It was inconceivable that old folk living alone would seal themselves behind double locks as night fell. It was silly for a woman to fear the strangers who offered to help her fix a puncture.
One of the journalists claimed that "rising crime is a cost of being more diverse, more colourful, and having more opportunity, unless you want a police state or everyone in prison, like the US". Another said the difference must be from earlier under-recording.
The 1950's description of New Zealand is not a nostalgic fantasy. A treasured copy of the Justice Department's 1968 book Crime in New Zealand shows our average murder conviction rate for the 46 years to 1966 at 2.2 convictions per year. In the late 1990's it ranged from 27 to 39.
A 1959 comparison of capital-city murder rates showed no murders in Wellington at all. There were no women in prison for murder at all during the five years from 1960 to 1964. As at November 1997, there were 17. Total property offences in 1965 were 5651, of which theft was 2589. In 1999, there were 19,033 cases involving property offences, with 51,245 convictions.
"Current sentencing is a lie"
The journalists' reaction showed me the gulf between the 90 percent of New Zealanders who voted for a tougher criminal-justice policy and the elite who control our present policy. The 90 percent are not ignorant reactionaries. Current sentencing is a lie.
The average paroled prisoner serves only 43 percent of his or her sentence. Over 70 percent of serious criminals paroled reoffend. And fewer than 10 percent are recalled to finish their sentences. True compassion for victims ranks below the "needs" of the criminals.
But to the elite in charge, their worthy intentions matter more than the results. These anointed ones consider it their duty and privilege to overrule the calls for tougher penalties from the rude and scoffing multitude. This is not because the anointed are corrupt or indifferent. Many well-meaning people serve bad causes. In this case, forgiveness is the virtue they can display.
But they will not risk leaving it to the victims to decide whether or not to forgive. If they had a choice, they might feel that forgiveness is not earned if the criminal is left better off than the victim, or if the criminal shows little contrition.
There was another discouraging side to that media encounter on law and order. They couldn't identify, or debate, the most contentious question in modern criminology - how to interpret the 30 percent reductions in offending in the US over the last half-decade. They believe the false theories that they have been telling each other for 20 years - that deterrence doesn't work, and that rehabilitation does. They see rehabilitation as the only respectable goal of penal policy.
Few New Zealanders know the facts. Is this because it is too embarassing to learn that there is more risk of violence or burglary in large areas of Auckland than there is for residents in most parts of the US? Only 40 years ago, the US crime figures were many times worse than ours.
The attacks on Act are not part of any debate. Like a tribe whose cult has been attacked and shrine descrated they vilify the successful reforms in every conceivable way, except by refuting them. This paraphrases a description of anthropologists' response to the debunking of Margaret Mead's creed on free love in Samoa.
The intelligentsia wanted to believe in Mead's nonsense. The same applies to the anointed's theories on crime. And they react like the anthropologists described in Matt Ridley's book The Origins of Virtue. Ordinary New Zealanders' doubts about our excuse-ridden justice system are an affront to faith.
Because our anointed have a view of human nature, most of us want it to be true: a world that runs largely on positive reinforcement. At the extreme, this world view pictures a kind of utopia for the elite, a society of carrots without sticks; counselling, self-esteem and therapy programmes.
You can reject these prevailing doctrines without going to an opposite extreme. Common-sense crime policies don't need a Hobbesian view that, without cruel authority, life must be nasty, brutish and short. Nor do the new-realist criminologists have a cartoon economist's definition of humans as driven solely by ruthless self interest.
If our anointed delved past the stereoptypes, they would find a fascinating convergence of lines of research and thinking among leading criminologists, economists, psychologists, game theorists, ethnologists and practising and successful police and penal system reformers.
Research suggests that we humans have super-sensitive social cheat-detectors. Breaking the basic rules of our social contract is more offensive to many of us than sacrificing our own rational interests. The most powerful advantage of our species may turn out to be capacities for trust, altruism and co-operation. And they depend on an environment where we can expect serious threats to be carried out, where reciprocity rules, with effective sanctions against deal-breaking.
Crime breaks the contract. As Ridley puts it, outrage at evil is "an emotion that guarantees our own commitment" to reciprocity in our dealings with others. If our sense of fairness is outraged without redress, the strength of our institutions is diminished for all.
The anointed may castigate such redress as simple revenge or retribution. Perhaps it is. But sentencing must consider more than the question, "What will reduce the risk of reoffending by this person on his or her inevitable return to the community?"
The needs of the criminal are the wrong targets
The needs of the criminal are the wrong targets. Sentencing must be more than a mechanism for deterring, restoring and rehabilitating criminals. Sentencing is primarily for the rest of us. It is a deterrent, for the person perhaps thinking of evil, but, more important, it must also denounce evil.
So for the families of Kylie Jones, Beverly Bouma, Karla Cardno and Kylie Smith, in simple terms, the law must mean what it says. Punishments must guarantee the old certainties, "cheats don't prosper" and "crime doesn't pay". This doesn't exclude concepts such as restorative justice - but they must not contradict justice.
"abuse excuses" strike at the heart of justice
As Harvard professor of criminology James Q Wilson puts it, "abuse excuses" strike at the heart of justice. It is the duty of judges to judge right and wrong. It is not enough to understand why someone has offended and feel sympathetic. Judges who routinely allow mercy to trump justice indulge themselves at the cost of us all.
Act is committed to freedom and responsibility. One can't work without the other. A free society depends on a view of people as self-governing. Responsibility means paying for your actions. Freedom destroys itself without the dogged discipline of consequences.
Many of these new legal excuses shift blame to others. Those others (employers, teachers and authorities generally) have little control and must get control to protect themselves. And so we restrict freedom, and case antisocial individuals abuse it, instead of deterring those individuals. Fireworks bans came about this way. When the law ceased to inspire respect among potential misusers of bangers and rockets, we banned them for everyone.
Current proposals for firearm registration, woefully ineffective in Australia, Canada and the UK, fall into the same category.
"I believe our anointed are heading for an embarrassing climb-down"
Yet I am still optimistic. I believe our anointed are heading for an embarrassing climb-down. As more sophisticated and essentially compassionate scholarship filters through, even to this politically correct land, our policies will change. Many lives will have been wasted by avoidable crime before we change, but it will happen.
We need not expect crime to get worse. We can join those parts of the world that confidently expect improvement. And the intellectual and moral high ground is for those more concerned about victims and the integrity of law.
Calling ordinary New Zealanders and their advocates rednecks will cease to work for the anointed.