There has been quite a lot of media and blogosphere reaction to Chief Justice Sian Elias’ speech, most of it in reaction to her final comment about considering executive amnesty for certain criminals, in order to reduce prison numbers. ZenTiger at NZ Conservative has been particularly vociferous in condemning the remarks. Having now taken the time to read through her actual speech [PDF] (well worth the read, by the way), it is not clear from her closing remarks whether she is advocating a simple release (presumably of prisoners with minor convictions) or a conversion of their sentences to non-custodial ones. Although I agree with ZenTiger that this suggestion flies in the face of the retributive aspect of justice, I did think that Elias’ remarks were worthy of a less dismissive attitude than that displayed by Simon Power. “Butt out” is not really something you want to say to your Chief Justice when she is speaking about law, no matter how much you disagree with her liberal viewpoint.
There is much to like in Elias’ speech. Her remarks on the horrendous underfunding of the probation system and the anomalous treatment of the mentally ill are both spot on. A properly run probation system is one of the few things shown to reduce reoffending. Currently, the probation officer is being used as a watchdog, rather than as an aid to help offenders reorder their lives. Part of the reason why Prison Fellowship have such good success with rehabilitation is because they spend a good deal of one-to-one time with newly-released prisoners. The same could be achieved with a revamped probation system.
Treating mental illness in a criminal manner is not only fruitless, but actually exacerbates the problem. People with borderline personality disorders usually spend their time in prison learning new ways to offend. This becomes their way of coping with their relationship problems, a new way of pushing people away; so they don’t have to cope with the complexities of social interactions. In most countries, Borderline Personality Disorder is registered as a mental illness. In New Zealand it is not. The net result is that our prisons are full of these people, all of whom need treatment, usually for substance abuse as well as their personality disorder.
Elias’ also touches on substance abuse in prison populations. In my opinion, this is, by far and away, the greatest failing of corrections. Here you have a restrained population that should be easy to detoxify, and easy to be teach skills for coping with their addiction, when returned to the community. Instead, prisons appear to be a breeding ground for further addiction and reinforcement of addictive behavior.
Contra Celsum remarks that drug use in prison is not dealt with in the same manner that the activity is dealt with in the community – by court action and extension of sentencing. I think it needs to go much further than that. Nothing less than an absolute zero tolerance policy will do. People found couriering drugs into prison should immediately be arrested and charged with trafficking; not possession, not a lesser charge, but straight drug dealing. Prisoners found with drugs should be subject to immediate blood tests and positive results should get you a month in solitary confinement, while you dry out. Random blood tests should be routine. All infringements should be met with immediate loss of privileges and, if necessary, solitary confinement. Hand-wringing about human rights here is counter-productive. Drug addiction is a scourge on society and a blight upon the lives of these men and women. Nothing less than strong action will remove it. Addicts treated with consideration and leniency get worse, not better. Prisoners should not be abused, but neither should they be given any sort of lee-way.
Without a comprehensive anti-drug program, all other forms of rehabilitation will be a waste of time.
Prison, of course, is about more than rehabilitation, it is also about retribution (the consequences of criminality) and protection of society. People do not like to talk about the former (although Elias, to her credit, does not shy from it). Yet the punishment of crime is a basic part of our society. Restorative justice is always preferable to punitive justice, but there are many, many crimes that are just not restorable. It could be argued that even simple theft cannot be fully restorative, due to the mental anguish caused to the victim. It follows that retribution is a perfectly valid reason for incarceration of criminals. Those who argue that prison sentences “do not work” usually overlook this simple aspect of justice.
Elias herself quotes the usual liberal line that “research” shows that prisoners with longer prison sentences are more likely to reoffend, while those with community based sentences are less likely. This is usually provided as justification for shorter sentences, ignoring the need for retributive justice. The only trouble with this research is that I have yet to see someone manage to eliminate the obvious selection bias. Who is given the longest sentences? That’s right – hardened criminals. The very ones most likely to reoffend when they are released. Which is an excellent reason for giving them longer sentences, not shorter ones, in accordance with the third imperative of justice, the protection of society.
The title of Elias’ speech, and this post, is Blameless Babes, and is taken from a question voiced by Shirley Smith, New Zealand’s first woman law lecturer, whose memorial lecture Elias was giving.
“What turns “blameless babes” (as all criminals once were) into the stuff of nightmares?”
It is an excellent question. Regardless of whatever style of justice we prefer – Restorative, Rehabilitative, Retributive – it is this question that must be answered if New Zealand is to empty its prisons. It does not make any difference to the level of violence in our society whether we choose to reform our criminals or lock them away forever, because there are always new ones growing up, ready to take their place. The only way we are going to lower the levels of crime in New Zealand is by tackling its causes head-on. Causes that are already well-recognised. Child abuse, fatherless families, drug abuse and addiction and poor education. These are the root causes of crime in this country. These are the things we must tackle if we want to stop building prisons.
Everything else is just ambulance-at-the-bottom-of-the-cliff stuff and political posturing.