On this site you'll find posts and pages from recent years. The site began as part of my public law practice after leaving Parliament in 2005. Accordingly it records my opinions, not necessarily those of Franks & Ogilvie of which I am a principal, or any client, or the National Party for which I contested the Wellington Central electorate in November 2008.
From the Wellington Writersí Walk:
“Itís true you canít live here by chance, you have to do and be, not simply watch or even describe. This is the city of action,the world headquarters of the verb”
– Lauris Edmond, from The Active Voice
I've just listened to Nathan Guy talking down concern about Chinese blocking of meat imports on Radio LIve Drive, before Andrew Patterson interviewed me on the topic.
My firm has paid particular attention recently to the way FTAs (Free Trade Agreements) can effectively over-ride Parliamentary sovereignty (our legal self determination).
I've acted for meat industry clients since 1980 and still do. I'm not sure how much they know of what is actually at issue. It is in the interests of all to keep this from blowing up, so neither side makes public claims or explanations that make it more embarassing to settle eventually. If the Chinese government, or some elements in it are just telling us who holds the whip hand, no one is admitting it.
The explanation could be that simple. And because we have allowed ourselves to become dependent on their market (and, directly or indirectly their loans to the West) we'll just have to suck it up.
It is a reminder that we should not be naïve signing agreements with the Chinese (or the Indonesians, or any number of other countries).
We will do what we say we’ll do in international agreements, because we believe in the rule of law, and doing what we’ve promised to do, mostly. I suppose we should recall John Key intimating that it didn't matter that we'd signed up to the daft and dangerous Declaration of Rights of Indigenous People, because it would not mean anything. Michael Cullen had the wisdom to refuse to sign up to it.
We're also keenly aware that as a small country we have a strong interest in large countries adhering to rules, and not simply acting on ‘might is right’. More significantly for our long term, we’ll adhere to our agreements because once we’ve signed up, however stupidly, they have the clout to force us to do what we’ve signed up to, even if it is then against our interests, and even if we’ve come to realise that it could continue to go mostly one way.
Many of the countries we sign deals with think promises and contracts are for complying with for so long as it works for them, and there is no shame in many countries in dorking a foreigner.
So New Zealanders are right to be wary of the deals we've been stitched into by Helen Clark and her predecessors, and the Key government’s eagerness to stitch us into more.
But we should not blame these leaders. At the bottom of all this is our weakness. This kind of thing either does not happen to Singapore or Switzerland or other strong small countries, or if it does they can wear it more easily.
Our leaders are given little choice about signing up. Our core problem is that the floating voters in our democracy keep electing people who promise to let them keep spending more than we earn, and not to make any hard choices to end living off borrowing.
So we’ll be bullied more and more by other countries because they can.
That could be turned around. But it will not while we spend most time arguing about fairness and who gets what, and boasting to ourselves about our special ingenuity and special capacities and a committment to " excellence". We are no longer valuably outstanding on any of those measures. Our creditors will be much more aware of continued pandering to personal irresponsibility and laziness and excuses for crime and non-performance.
I've managed a backpackers. I know what travellers want. I know how to make money providing the cheapest (safe) accomodation travellers can find. I filled my backpackers in St Anton am Arlberg by greeting them at the Bahnhof (railway station).
I've slept at airports. I will probably do so again. Partly because it sticks in the craw to pay $150 + for a few hours in a hotel room (after the taxi, check in, check out and taxi back) when all I want is somewhere safe to stretch out. There are other reasons of course – you may want to stay ready for the first standby seat, or not remove your luggage from custody, or you feel safer in the airport than heading into a city you do not know.
But I'm not surprised by Christchurch airport's snottiness to customers who want to sleep until their flight (or their tour pick-up). Instead of seeng demand as opportunity, and customers as guests, they display the snobby disdain to be expected of a "socially owned" local monopoly.
The grudging reversal of policy shows the imagination one can expect from this town of state dependents. A nearby backpackers with a captive market is a feeble answer. Why not provide Japanese style boxes for safe sleeping? What about showing the Interislander's initiative on late night sailings in renting thin self inflating mattresses, and pointing to safe corners? Why not provide a service for a change, to make some money?
Instead of complaining that some people stay up to 11 nights, what's wrong with a one or two night limit to exclude indigents? What about applying a smell test – say plainly that if people smell they will be discreetly invited to pay for a shower and if they don't pay, they can go?
Wellington Airport is not socially owned. I've enjoyed its willingness to tweak the noses of the dreary people who usually wield collective power to suck the vibrancy out of any business they control. But its culture may not be different enough in the long run. Perhaps airports are corrupted by living off rents, and tolls from those obliged to pass through them. They get accustomed to fat returns from charges to taxis and other users for the privilege of actually providing services.
Wellington Airport is stacking up local hostility by not progressing an extension to the runway for a city anxious about its future.
When airports are subjected to Commerce Commission price control they will all have themselves to blame.
Deborah Hill Cone in the Herald has also noted the sinister side of the Labour Justice spokesperson's beliefs on what the state should do with criminals. I posted on this earlier this month.
The friend who drew her column to my attention says "She cannot bring herself to state the obvious, that talking about rewiring crims brains is creepy elitist nonsense (Clockwork Orange) that distracts from the things that can be done"
Perhaps, but I think she deals with the issues thoughtfully nevertheless, in a return to form on serious topics.
As we get closer to knowing the physical elements of thoughts, and even 'the soul', it may become harder (or easier) to defend notions of free will, and accordingly the useful moral distinctions between mad, bad and simply unwitting. Conscious choices and exposures over time may create synaptic patterns that predestine. That would be consistent with the intuitive wisdom of those who have long wanted to ban pornography, for example, while worrying how to prevent the precedent from opening the door to those who hate free speech.
Neuroscience may come to support long incapacitative custodial sentencing, as the only way to protect the rest of us from those who are predestined to hurt others. Or it may enable them to choose 'rewiring' instead.
That is all for the future. In the meantime we may come to attribute the 'blame' that justifies retributive justice less to the evil event, as to the preceding pattern of choices. On other words there may be a tendency to punish or control for being a 'bad person' more than for particular bad behaviour.That is effectively what the M'Naughton rules on holding drunks to account do, drawing sufficient 'mens rea' or the guilty mind from thewillingness to get drunk and therefore lose normal control. It has always been problematic in theory, though essential in practice.
The law must remain pragmatic. There are a number of indispensable 'fallacies' without which the law just will not work. For example, everyone is deemed to know the law, though patently none could possibly now know the vast sea of rules in which we now swim. That fallacy is essential, because without it who would not claim ignorance of a law when charged.
So even if neuroscience makes free will shaky, we'll need to deem it. We must attribute to people responsibility for their actions, as well as the right to choose courses others think undesirable if freedom is to be defensible intellectually, and endurable in practice.
To me the most revealing of the Herald's excellent 'Judging the Judges' series several weeks ago was the report of a sad interview with Chief High Court Judge Helen Winkelmann.
Followed as it was by panicky criticisms of the then upcoming launch of the SST website 'Judge the Judges', it highlights the capture of justice by its insiders. See, for example the unconscious conviction that the justice system is all about them in the Bar Association's assumption that the site would convey anonymous irresponsible views that are "ill-considered, totally unnecessary and likely to give rise to illegality as contempt of court".
How professional is that – to assume criminal offending without the slightest knowledge of how the site will work? Why should it be any more problematic than any other reporting of opinions of the work of the courts.
The comment drips with the contempt for open justice, freedom of speech and the people – "The website is likely to be little more than an online version of talk-back radio,". And your point is…?
Though Winkelmann J may not intend it a species of the same contempt seems to leak out of her comments about the SST and the views of victims, though more decorously.
"If the test of the sentence is whether the victims are happy with it, well, usually they are not going to be happy with it because the criminal justice system is not foremost a system for therapy for victims. It is a system in which they have a legitimate and necessary interest.
"But its primary function is to deal with that offender on behalf of the whole of society and impose a sentence on that offender which is – if they are convicted, if they are the offender – consistent with the principles and purposes of the Sentencing Act."
Justice Winkelmann had previously spoken of "some voices" which spoke louder than others in the coverage of issues before the court.
Asked about the Sensible Sentencing Trust, she said: "Their views achieve a great deal of profile in New Zealand. It is to state no more than a fact that there is often an absence of any differing view or correcting view.
"One thing I would say is long ago we as a society, as did every Western society, settled on a system of justice that said it was not going to be the victim who said what the sentence was.
"It was going to be people who could look across a range of offences and a range of sentences and apply the law and come to a sentence which is imposed on behalf of the whole of the society. That is the appropriate criminal justice system."
The Judge reminds me of a decent Catholic cardinal. Over the past two decades there have been many, defending their institution and throwing behind it all their genuine personal integrity and good intentions. They've tried it all. Media training, releases reminding us of the Church's good works with the poor, the comfort they've brought and continue to bring to the afflicted, strong rebuttals, earnest assurances of open-mindedeness to improvement. But none of it works. There have been just too many evidences of priestly hypocrisy and dislike of their flock's impertinence in judging them.
The institution continues to exercise the power of historical momentum and vast inertia, but trust in integrity, the most important strength of all, has departed. It will not return for so long as it appears that they are trying still to defend the indefensible, to protect some amongst them who deserve only contempt, for so long ast they think they can finesse their way through embarrassments without real change, for so long as they hope that dramatic gestures and the sacrifice of a few sacred cows will show the depth and genuiness of their acceptance of past error. Until their vital strength returns they will continue to find every error magnified, and their virtues ignored by all except their most pathetically obedient adherents .
The most powerful institutions can bank on a respect that is forgiving of inevitable mistakes, because they are not thought to be indicative. Mistakes are seen as aberrations. Their supporters show fobearance and loyalty in adversity.
In my opinion the courts are well down the tracks to having lost it. To recover they have to show they are committeed to genuine transformation. Above all they have to re-establish a conviction that Court officers serve others primarily, and not themselves first.
Courts exhibit too many facets that can be explained only by the lawyers and the judges putting themselves first and justice and the community second. It will need more than a new willingness to comment publicly, more than "consumer education" more than "rebranding" to restore the respect the institution should deserve.
See here and here for recent instances that prompt demands for a genuine re-committment to prompt, equal and open justice and the people it serves ahead of the interests of the lawyers and the judges. Other reforms would include:
a) refusing to remain complicit in the parole system that makes every announced prison sentence misleading and deceptive;
b) refusing to remain complicit in concurrent sentencing, that is not only deceitful, but tells the victims of every offence other than the worst that their loss and humiliation does not matter;
c) sitting 24 hours per day if necessary and running timetables to ensure that criminal trials are over and the offender sentenced within the few months that was normal until several decades ago;
d) ending the practice of making timetables suit counsel's availablity, and instead making counsel organise substitutes or otherwise stick to pre-determined schedules;
e) ending name suppression and discharges without conviction that subvert the public's right to know who are criminals and who are not.
The Hon Judith Collins justifies the ordinary voter's support for National. Her preparedness to establish a register of convictions is another example.
Let's hope that she makes it simple. The current system has converted "open courts and justice being seen to be done" into a hollow slogan. A Press editorial advocates simplicity as far as it goes – but that is not far enough.
The record should be open. What happens in open court should be on that record. It should mean that people 'live down their crime' if people who know their offending gain confidence in them from long term reliability. That is not the current version. System defenders claim without research evidence that not being caught and living among unwitting associates is rehabilitation.
Minister Collins should at the same time straighten out name suppression. Lawyers and judges claim public or victim interest justifications for name suppression. From years as a MP, watching the cases closely, that claim is often spurious. Even the claim that it is necessary for the rehabilitiation of offenders is undisciplined, not supported by robust research.
Many court lawyers are more clerical than logical in their reasoning and their intuitive default positions. They are like the priests who hated Luther for allowing the common people to know what the Latin mumbling meant. They sense a loss of power when ordinary people are allowed to have as much knowledge as them. So losing the power to keep names secret is opposed from instinct, not rational evidence.
Take for example, the almost universal suppression of names pending trial. It is allegedly to protect victims, and the trial process.
I’ve seen no research evidence that routine suppression actually protects many victims. There will undoubtedly be some who would want it but often almost everyone close to a victim (those whose reactions will matter) will know of the misfortune before the offender is apprehended. Those more distant may get garbled rumours. Rumours may be as bad or worse than the truth that disclosure would reveal.
The claim that suppression is for victims (rather than to feed the status interests of justice system insiders) is exposd for what it is by the system’s usual refusal to drop suppression even when the victim desperately wants full exposure of the offender, and sees knowledge of their suffering and role in that exposure as worth it, or even as rehabilitative.
The claim that suppression is necessary to protect against contamination of the trial process is:
Ludicrous in relation to judge alone trials. Are the judges saying they will be unable to overcome their own prejudices established by early media coverage?
Untested against the reality that many if not most internet savvy jurors regard doing their own google research as a basic right. I understand that jurors commonly ignore judges’ prohibitions. It is long overdue for the Courts to recognise that we are now well back into the ‘village’ environment in which the jury system emerged. At that time jurors were the accused's peers. Their background knowledge of the accused was required to help judge truthfulness. It is a recent development that jurors are meant to be empty vessels, to have in their heads only the software and database poured into them by the court. Time to adjust to reality.
An excuse that relies on not measuring or having confidence in the impact of the slow and careful testing and challenge process to evidence in a modern trial. If the jury cannot put their own pre-knowledge to test then we have much good reason to dump the jury as a fact finder.
IMHO solutions are staring court lawyers in the face:
Stop suppression unless victims ask for it;
Ask jurors to identify at the beginning of a trial all the pre-knowledge they come with, and any theories and provisional conclusions they start with, including sources, so that counsel and the judge can test them explicitly if they seem sufficiently influential; or, if juries are still not trusted to overcome preconceptions
End their role as finders of guilt or innocence and give them the role they are better suited for – to express the community view in sentencing with a residual protection function in an ability to come down with a nil or negligible sentence if they have concerns about the judge’s finding of guilt
The Herald has published a significant, thoughtful and promising comment from the Labour finance spokesman.
Ignore the mandatory defence of the Green paradox ("we hate seeing energy wasted and we demand taxes on carbon to push up the price, but now lets give power away free as well"). David's defence is good but does not explain how the problem described outweighs the downsides of nationalisation, or why the Commerce Commission's jurisdiction is not adequate to deal with what David sees as mysterious price relativities.
The really promising commentary is at the start. This is the first tackle by a current politician of National's absurd (and principle-breaking) interventions and impositions of pointless controls on business. Parker is spot on about our capital raising regime. Particularly significant for where it comes from, his crisp judgment is the glimpse of an oasis in a desert.
I've been looking for even a hint of frustration over MRP costs and delays. Ruling politicians are pouring milliions into the pockets of brokerrs, lawyers and investment bankers navigating the swamp of law that now separates people with shares and other securities they want to sell from the adults who want to buy them.
Those same adults can gamble freely without warnings on horses, houses, overseas, and even on MRP shares the moment they become secondary market. Thankfully David is blowing the whistle. There is plenty of respectable scholarship and research to support his scepticism. And there are now good political precedents for pragmatic dispensations from the near useless superstructure of securities offering law. In the US Obama's JOBS Act has liberated companies from its dead hand with a size threshold that would free most NZ offerings.
With signs that Labour would now be an intelligent debating partner in this area, National would be wise to again suspend progress on their Financial Markets Conduct Bill. Sensible futher change would create more simple and constructive exceptions. They would steer the FMA away from duty formulations that drive it into sermonising instead of sticking with what it really can do. It would restore freedom of speech about matters financial and investment. And it would beef up the practical remedies of the FMA (and more importantly – investors) for dishonesty.
Leave the prospectus/offering superstructure in place because abolition would not be worth the howling of its believers. Just exempt those who will undertake to deal only with consenting adults and let the full Monty process wither from disuse.
A Canterbury couple this morning will be echoing John Key's frank warning to Wellington (that it is dying). They are Wellingtonistas. They stay with Cathy and [me] for up to a week for every International Arts Festival. They come for regular mental health breaks.
And last week after a few days here they told us they thought Wellington was sick. They noticed a lack of energy among the friends they usually visit. Their friends here in business seemed worried. We talked about apparent lack of reaction from anyone in leadership in Wellington to Jeremy Moon moving his creative team to Auckland. They mentioned empty buildings and the lack of construction. They were sorry for us.
I knew they were right. It chimed with what I have been noticing for a year or so. And it is not just the necessary downsizing of the government workforce here. Much more telling is the desperate enthusiasm of people who are important to Wellington, about amalgamating the region's councils.
I think they are misguided. They could well succeed, though rearranging local government tatty deckchairs could make our predicament worse (more on this later). But when challenged they react with real anger. The reasoning not logical. But they see a desperate need to "do something", so amalgamation it is, to feel that 'something' is happening.
We should therefore be grateful to the PM for saying openly what many in business have been saying sotto voce for several years.
I'm concerned that the problem is hard to fix partly because of our success, and what we love about living here. The concentration of high earners, administrators, academics, professionals, journalists and other artistic types who like living here is exactly what Richard Florida prescribed. But Florida has had to admit that his key thesis is wrong. It does not necessarily trickle down to benefit all. Many creatives (and officials and academics) rely on scraping taxes and self reliant initiative off boring commerce and its workers. Control workers get their incomes and their satisfaction from second-guessing others and ordering them around. But as Florida has acknowledged, even creatives do not necessarily repay those who pay them, let alone bureacrats and academics. Instead they may despise vigour as crassness, and irreverence as ignorance. More importantly they vote for people like them, who will promise to maintain whatever is the status quo.
Many creatives' ignorance of business and what business actually needs and seeks (basically for officials to get out of their way) leads to an unwelcoming hostility to change – and unwillingness to accept mistakes and to move on in optimism. All are the essence of successful business cultures. Wellington's pathetic inner city by-pass is a case in point, flowing into doing nothing around the Basin Reserve. For nearly three decades politically active Wellington has been faffing around trying to find costless solutions that offend no-one, and in particular the precious types who find reasons to hate all change. We could have built the covered trench, or the open one 20 years ago. And in a dynamically growing city where commerce finds transport frictionless, if we did not like what we had, we'd have torn up the bits we did not like and rebuilt them. Instead, we've prevaricated and got the worst of all possible compromise solutions – a bypass that is not.
Creatives and control workers think they know how to make a city thrive. Curiously it is by taxing others and 'fostering' themselves. They want to run events, and to subsidise favoured businesses opening. But never anything as boring as just getting out of the road of business people and would be home and apartment builders and developers who are already here, and want to stay, but can't because collectively the disadvantages are coming to outweigh our advantages.
Businesses leave as our living attractions cease to outweigh factors like small market size and a too small runway, and night curfews for planes, and the cost of housing and commercial space. As fewer and fewer business people remain, the delicate balance with the 'creatives' and control workers may have tipped. Our local politics now favours the decision paralysis that suits those who love consultation and other political processes. Can-do types steer clear of local democracy. A lack of humility in those who win office creates a climate uncongenial to those who must toil in more ordinary productive businesses. All around the world the left elite look down on money-making from risk, and those who must do it.
Can it be reversed? I think so, though just how is unclear at the moment. On our side is the fact that thousands of our creatives are now unavoidably involved in making money. They have to appreciate risk taking under uncertainty. They want to be facilitated, not directed. If we can mobilise them alongside our residual leaders who understand business we should be able to revive our animal spirits. So thank you John Key for your frankness.
I had to set aside time yesterday to defend our three strikes law. Jim Mora's Panel called for background, then Back Benches (for Prime) needed someone to balance what they expected from their MP Panel on the topic last evening.
I was saddened by Damien O'Connor's wetness under questioning from Wallace Chapman. He resisted committing to repeal the three strikes law, but nevertheless parrotted the Green MP's empty pieties. People look to him for a residue of West Coast working class common sense in his effete party (a 'gaggle of gays and unionists' as he called it) but how disappointing for them if Damien is the working class champion.
I was surprised by Peter Dunne's similar flaccidity, until we relflected on his electoral position. His Ohariu seat is vulnerable if National permit a strong candidate to stand. He will be trying to inherit Charles Chauvel's supporters.
Labour justice spokesman Andrew Little is reported as hostile to mandatory sentencing law. Though he has avoided committing to repeal three strikes his language is revealing.
"An offender like Elijah Whaanga needs to pay his dues to the community for his offending, but the community's best interests would be best served by him getting help to rewire his brain and change his attitudes."
The academic left have an astonishing faith in their power to "rewire" our brains. They pretend to think it is just a matter of 'appropriate' social adjustments. But it is rare for them to be so blunt as to admit they expect to rewire people. To avoid being mocked for callous fantasy Andrew must be relying on the media consensus never to ask obvious and hard questions.
No-one knows how to do the "rewiring". If we did it would probably require so many skilled "resources" (i.e. people) with such deep and sustained committment, and such authority over the criminal families that it is a pipedream for a liberal state. Perhaps individual reformations can be acheived by evangelical religious groups, and a few charismatic secular people in "pilot programmes". But they'll probably be too 'authoritarian' for Andrew Little. Groups with empirically successful ways of 'rewiring' are usually pilloried by left theologians for 'cultural imperialism'. Even if we knew how to do it, 'rewiring' the children of our known 600-1500 state identified criminal families to have normal middle-class propensities to being law-abiding, would probably require removing the children. Though they have been calculated as being likely on average to each cost society over $6m under current policies, there is no politically feasible programme known or likely to do the job of changing their direction.
Labour Greens claim moral superiority over ordinary people (including many of their own voters) on criminal justice with childish non-sequiturs, such as how much better it would be if we could replace prison with "rehabilitation" or "support" or "interventions" (invariably "early"). Of course it would be better. Tony Blair captured it in his winning election slogan – "Tough on Crime, Tough on the Causes of Crime". But there is no authoritative agreement or even clear theory on 'the causes of crime'. And no demonstrated politically feasible way of removing even the few causes on which there is a measure of (unscientific) consensus.
The left think they know the causes – selfish rich people, not enough social workers, hard hearted bosses who won't employ human refuse. Sadly, research does not supports socialist pop theory. The research is deeply confounding. Class war and poverty explanations for crime are discredited from both international comparisons as well as inter-period research within countries. Low self esteem theory was debunked nearly 20 years ago. Sadly for the criminologists, Bill Clinton's tough policing and mandatory sentencing policies, appropriated from the Republicans, have been followed by long years of rapidly reducing crime levels in the US.
There is next to no evidence that governments or anyone else know which nicer 'interventions' will reliably rewire or re-educate or resocialise, or socially adjust, or rehabilitate criminals. Or even anti-social adolescents in "troubled"/"dysfunctional"/"disadvantaged" (take your pick of euphemism for bad) so-called families. It is breathtaking that politicians so fond of the 'precautionary principle' can get away with advancing well intentioned fantasy as a substitute for the well-proven shame and custody responses to crime.
Imprisonment clearly protects. It deters many. It offers retributive justice for victims, and sometimes it rehabilitates.
Labour Greens can persist with fantasy responses on law and order issues only because of the free pass they get from journalists who share their religion. They are all accustomed to indifference to the suffering of thousands of unnecessary victims, disproportionately the poor and the weak. "Innappropriate" postures on issues thought to signal compassion (or its absence) to the "marginalised" matter far more to them than callousness about suffering of far more numerous but unfashionable bourgeois and proletarians. They have always believed that the proletariat are ennobled by their suffering. The ends justify the means. So deliberately choosing to leave thugs in the community is OK because the innocent victims are just the collateral damage of re-educating all into being better people. I think that many left politicians feel that victims are not truly innocent anyway, because too many victims believe in innappropriate things like their right to retributive justice.
I've heard the contempt of left politicians for their own voters behind closed doors. I do not think it far-fetched to speculate that their near universal hostility to victim advocacy comes from a private conviction that their own voters (too often 'red-necks') deserve to suffer until they are more suitable to live under the compassionate moral guidance of their political superiors, free of their primitive belief in the need for justice to be straightforward.
Our grandparents lived with a fraction of our crime risk, in a society of greater inequality, and genuine poverty (not the current fake version where the poorest are the fattest and have to work the least). So when will the media demand that the left explain their hostility to our grandparents' straightforward justice - swift, certain, public, unapologetic, deterrent shame for wrongdoing. Swift certain public unapologetic prices for offending, calculated to show that crime will not pay, and that victims can count on their community ensuring that it will not.
So tell me Damien, and Peter – just when and how will this rewiring start? Who will do it, with whose army?
David Garrett acheived what I did not in his time in Parliament. He got the three strikes law through. Finally it is starting to bite.
As an MP I promoted a "three strikes and its the max" law change, but not single-mindedly. I spent more time pushing for speed and certainty in criminal justice, because of the research that shows it is more important than severity of sentence, in deterring crime (and consoling victims). So I welcomed David's success, but predicted that we might not replicate the US outcome. I feared (and still fear) that we could get the worst of all possible outcomes – longer sentences with more crime. From my research we are likely to suffer from our national propensity to look for costless solutions, to pull our punches in an attempt to be nice to criminals in the hope that they will be nicer back.
Three strikes in the US was (and is) hated by 'liberals' because of its disproportionality. Some of that may also have been the (unintended) secret of astonishing early success.I mention the US experience briefly here and here and here
California pioneered with a three strikes qualification based on ‘felonies’. Felony has a technical definition so some can be trivial in fact. Naturally there were some hugely controversial sentences of 25 years for minor third offences.
Three strikes was the result of a citizen vote in California. It must be preceded by an objective independent evaluation report to the people. I tracked down a Rand Corp researcher who worked on the evaluation. He was against the change, and continued to think it was too severe. But he thought it had 'worked', albeit at excessive cost. He theorized that the California experience (nearly 40% drop in serious crime over 18 months) was attributable to the uproar over the early disproportionate consequences after the law change. Criminals learnt quickly of the inexorability of the three strikes imprisonment for the third strike.
"There could not have been an offender who did not know a new sheriff had come to town”. Before then many criminologists had the view that offenders did not have enough self control to respond to risks and knowledge of consequences.
The intent of the California change was simple, and very different from ours. In essence it was a constitutional way to implement preventive detention. Research revealed that 20% of offenders were committing 80% of serious crime. Almost all who were convicted for 3 felonies went on to commit more, usually shortly after release from the previous sentence. They commonly ceased to offend by age 45. So three strikes was promoted as a simple way to keep the irredeemable recidivists in prison until they were around 45. Most of that category had their third felony no later than their early 20s, so the 25 year sentence was designed for them.
Research suggested that most of the serious recidivists would be locked up for 25 years within 4 years of the law change. In fact the serious crime rate plummeted much more quickly, for reasons that were never conclusively identified. The theory mentioned above – about the effect of saturation TV debate over a 25 year sentence for demanding a pizza with threats (robbery) and for stealing motel towels (I can’t remember why that counted as felony – there must have been some technical extra factor, perhaps pushing over the maid and running after being caught doing it) – may be the best explanation.
Our law on the other hand is much more in line with our timid approach to mandatory sentencing.
I thought there could be little reasonable objection to the proposition that when you have committed two [not three - thanks Graeme] previous serious violent offences, with warnings of what is coming, your third [not fourth] is a declaration of contempt for the law and for previous mercy in sentencing and parole. I can’t understand people who object to the maximum prescribed sentence for an offence which is committed with contempt for the law, for the victims and for the court's previous warnings.
Look for detail of our law here .
There is a heartwarming BBC report of research showing that nature largely detoxified BP's Deepwater Horizon contamination of the Gulf of Mexico within 18 months. The conclusions are astonishing, and far less qualified than one would expect for such a significant reversal of previous beliefs.
Even more comforting is the finding that the interventions of panicky environmentalists slowed the detoxification down and exacerbated the damage.
This may not do much for the US lawsuits against BP. There would appear to be grounds for BP to argue that 'mitigation' was as much a problem as their initial negligence.
We'll need to find out if our waters have similar organisms, and similar effectiveness. Hopefully New Zealanders can be more relaxed about the practical inability of our small economy to spray dispersants over our vast coastlines. More to the point, we might leave the next Rena more to nature.
Because there were no records of oil spills from wartime sinkings causing ecological disaster for us and our fisheries, and our long history of great volcanic releases into our seas, I was always suspicious of the catastrophy wallowers who lept onto the Rena "disaster". They fanned grotesque fears of oil to fuel iwi ignorance and keep up the woe levels. Sadly no national politician was prepared to risk a bit of sanguine common sense on the topic.
It will be interesting to see whether this research will reassure or simply inflame the people currently satisfying their need for enemies and anxiety, by pestering us about possible Great South Basin or the East Coast exploratory drilling.
I'll be amazed if they take it as the wonderful news it is. Those of a clerical bent really need to feel that humans will suffer for prosperity, and oil consumption is the perfect symbol of our wealth and ease. Unlike their credulity on receipt of "bad" news, they will refuse to accept this research until it has been minutely validated everywhere. Anything that may comfort environmental sinners is to be denied (because it is just too embarrassing to deplore it openly).