Skip to Content »

Notes for Greg on his proposal for the Justice Hot Tub debate

  • July 22nd, 2012

The Justice Hot Tub debate on Friday was fun for me, and the audience seemed engrossed. Much of it was filmed by both TV 1 and TV 3, and the Nation did a followup that screened on Saturday and Sunday, providing the light relief from an excellent speech by Bill English, on the economy.

Following are the notes I sent Greg King a couple of days before, to indicate where I would be coming from in commenting on his proposal for what he calls a "Management Court".

I felt it could be useful as long as it was confined to the victimless drug.alcohol crime sphere. In the result the debate was far more wide-ranging, but these notes are about the most succinct summary I've done of the conclusions drawn from my 6 year study of criminal justice research, law, and politics paid for by you, as my MP salary, and supplemented since..

Here goes:

I will support your idea Greg, but with demanding caveats.

 My point will be essentially that the paramount measure of the success or failure of justice system innovations should be the offending rate, and changes in it. If the rate rises or stays the same – failure. If it falls dramatically and that is sustained  – success. Because it is the crime rate, not the imprisonment rate, that determines the price paid for crime by victims, and by society (in fear, trust and tangible cost).

 There are constraints on that measure, like:

a)      The avoidance of conviction of the innocent (or at least more than one for every ten guilty who escape punishment if we follow the rhetoric)

b)      Respect for genuine human rights, like freedom of speech and action which does not harm non consenting third persons;

c)       The victim’s (and the community’s) right to reassurance that moral balance is restored – with retributive justice if the victim so requires.

d)      Cost, assessed against other demands for collective spending, like health, education, defence, and maintaining our productive capacity to pay for it all

e)      Protection from arbitrary exercise of official coercive power and limiting the risk of policing power going septic.

But they are constraints, not independent competing measures or purposes.

 As well there are parallel nice-to-haves, because they make us feel better about ourselves, and they exhibit the fundamental good neighbour principle of Christianity – do unto others as you would be done by. Accordingly a sound justice system will also have  objectives (but subordinate ones that must not be permitted to compromise the paramount one) like:’

a)      Compassion and second chances, understanding frailty – but not 6th 7th or 8th second chances, especially when they negate the deterrence and denunciation and retributive requirements of punishment

b)      Opportunities for rehabilitation, because we would all wish for the same – but subject to the same condition – not where they undermine deterrence, denunciation, and the victim’s right to retributive balance;

c)       Reintegrative and  therapeutic assistance, but limited to the extent that they must not be unfair to non-offenders, and be strictly judged on results, not worthy intentions.

 I can see good reason to experiment with your idea, but only if it is prohibited from compromising the main objective and  the constraints. Accordingly it must be an alternative, a privilege, where compliance is not optional. There must be a cadre of practical hardnosed enforcers standing behind the deluded wallies who infest our caring professions. It must be very clear that the justice system always means just what it says. It must be very hard to game it.

 The purpose of the justice system is not the offender. If there is a priority list it is:

a)      The victim

b)      The community and its right to feel that crime does not pay, that cheats don’t prosper and that right will prevail over might.

c)       The offender.

 I am concerned that supporters of therapeutic models of justice know little of research other than that into the therapeutic effectiveness of punishment (low) and of various attempts to rehabilitate. They think without enquiry that:

a)      Crime rates depend on reoffending rates, and that

d)      reoffending rates depend on rehabilitative effort.

 There is some research truth in (a) but next to none in (b). Indeed the thing that makes the most difference to future crime rates is the rate of recruitment to a criminal life-style, of young people. Once young adults have the pattern they are likely to keep offending till they are near 40, in most  societies comparable to ours. So if resources are to be applied and criminal procedure reforms focussed, it should be on youth justice.

 The proponents of therapeutic justice are also ignorant of the research that suggests the most important factors governments can deliver on, in determining recruitment to criminality are:

a)      the speed,

b)      the certainty; and

c)       the predictability or consistency;

of consequences for offending.

 That in turn depends on the speed, likelihood and predictability  of:

a)      detection (policing effectiveness)

b)      arrest (ditto)

c)       conviction (ditto plus court efficiency and absence of technical lottery unrelated to guilt or innocence);

d)      effective sentence (length and abolition of parole and other elements that make it a gamble).

Speed and certainty are far more important, the research shows, than severity of punishment. New Zealand is being forced into severity because a badly lead judiciary has allowed our systemd to become hopelessly slow, and unpredictable. Successive Ministers of Justice have failed to take control to remedy the consequences of this judicial failure, and most legislative 'reforms' have compounded the damage.

 Indeed if your Management Court reduces the certainty and promptness of an unwanted consequence to offending it will fail, and it will further damage trust in criminal justice.

 Note the importance of the words in italics above. – that governments can deliver on. Governments (and any big social organism without crushing coercion) can’t sustain complex responses. Even in wartime, with all its common cause and acceptance of discipline, systems have to be simplified and most variations sacrificed to achieve complex tasks. So it is idle to prescribe for “interventions” and “tackling the causes of crime” when there is no consensus on them, and little prospect of even short term unity over how it should happen.

 A criminal justice system should identify its core objectives and its core methods and vow that they will work and be achieved. Aim at 100% achievement of 80% of the potential range of achievement. All the consensus one might drum up around fanciful objectives will not do as much as restoring certainty in the minds of people on the decision cusp of offending, that it will not be worth it. That a criminal justice system can do, has done in our past, and can do again. Forget about the irreducible rump who will always offend under any regime. Just lock them up for as long as possible consistent with the constraints.

 On all tests our  youth justice system is a rank failure. It is a vast indulgence to the well-meaning but woolly minded wallies who live off it. It could hardly be worse if it set out to attract those who share the one solidly established characteristic that predisposes to habitual criminality – a liking for risk and an unfounded high self regard, with a belief that ordinary odds do not apply to the apprentice offender. To a youngster full of bravado, testosterone (and liquor or drugs) pushing him into the traditional adolescent challenges, our system offers tonnes of reassurance that prohibitions do not mean what they say. He gets endless lessons in that. For example:

a)      The vendor of grog or drugs to him takes the hit, not him;

b)      He is immune to normal social sanctions for minor misery he inflicts on those around him – his teachers and parents are no longer allowed to reciprocate the pain he causes;

c)       His school shows daily wrongdoing succeeding;

d)      His neighbourhood probably shows tagging success

e)      His parents are often ripping off the community, without sanction, in living without working;

f)       His minor offending will often not even be reported because police give it low priority, and they are demoralised by lack of effective outcomes, and the need to pretend respect to the offender’s offensive family

g)      His more major offending will be dealt with (4 times out of 5) outside any formal system

h)      When he finally crosses the line into formal apprehension he will get a family group conference where the outcome is in the lap of the gods

i)        No one enforces the agreements made at family group conference;

j)        He might attain the system average and have 8 offences effectively excused or trivialised before he gets his first custodial sentence;

k)      The whole youth justice system is secret, so the primary and immediate sanction for almost all cultures (especially polynesian) – shame, has been abolished.

l)        When he graduates to adult crime all but the most serious  record is wiped and the system pretends that he has been blameless.

 Many well-meaning decent people parrot the claim that “prison doesn’t work”. True, it rarely rehabilitates. But that is not its purpose. Its core purposes are to punish,  to deter, and to prevent crime. For those it works well. There may be alternatives, but they cannot replace prison until they are proven.

People who claim that "prison doesn't work" actively avoid genuine research. Learning of  the success of the US return to toughness in the 1990s is too discordant with deep beliefs, so they simply tune it out. They do not want to hear about anything that challenges their assumptions of moral superiority from greater ‘compassion’.  They hate even more the success of states like California in cutting crime. They do not want to hear of US  genuine and near universal civility and feeling of personal safety outside a few central city crime area. They have no interest in the revival since the early 1990s of remarkable tolerance and grace in a society perhaps most primed for failure in that respect by racial mix, drugs, loss of traditional religious and educational values, rootless immigrants, and relatively low welfare entitlements.

 They are non-plussed even by the steep recent drop in our own prison population. They hate the idea that Garth McVicar and Power and Collins might have achieved the recent timid turn-around in our crime rate, and our prison population.


  • DavidW
  • July 22nd, 2012
  • 7:30 pm

An excellent summary. I'm proud that my tax dollars have contributed to something of value from an MP (when you were). And thanks for continuing to provide rational input into a field where it is so often lacking.

  • Roger Strong
  • July 22nd, 2012
  • 8:23 pm

   I have thought a few of the thoughts that you write about but sadly cannot write as you write. Please keep saying things like this and don't get discouraged by the people who look at the world through glasses that just show them what they want to see not what is actually there and happening. As an ex-teacher who doesn't think much of the present education system – you are right on the button about how disruptive these kids really are. If most parents could see how much teacher energy is expended on them and wasted when it could be used to teach their kids, they would be very angry.

  • Jim Maclean
  • July 25th, 2012
  • 6:20 pm

A timely and eloquent summary Stephen. Thank you for it and long may you persist with the often thankless task of helping those who often villify the messanger to better understand the effects of their misguided actions and how they might change for the better.

Leave your comments:

* Required fields. Your e-mail address will not be published on this site

You can use the following HTML tags:
<a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>