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Wrong result, wrong excuses, but legally mainstream reasoning on McNamara parole.

  • December 14th, 2007

The Parole Board has just released a legally defensible, but morally wrong decision to let Peter McNamara out on parole after Christmas. Previously they made a morally correct but illogical decision to  turn down his application for home detention. They kept him in prison for a 1989 rape until now, when he’s served a bit over 2 years 6 months of the 7-year sentence.

The issue was whether they could take into account the outrageousness of gutting a 7 year sentence, to refuse to release him, when he is not a threat to anyone in the community. They faced an impossible task. The government tried to write the law to obscure what they were telling the Board, but the original intention was clear -“it’s not your business to worry about justice, you must let them out if you feel they are not a risk. If that makes a mockery of sentencing, and insults the victims, that’s not your problem”.

Select Committee changes confounded that simplicity. For example the Board is told to consider the interests of victims, but Labour and the Greens would not allow those interests to be defined or give them equal weight with the instruction to release. I do not apologise for the resulting confusion.

The Board is bound by the Court of Appeal’s decision in Reid et al v New Zealand Parole Board (CA 247/05) …“although considerations of general deterrence are relevant when setting the nominal sentence and minimum periods of imprisonment and in determining whether to grant leave to apply for home detention, they are not relevant when the Parole Board is considering applications for release on parole or home detention”.

In the decision on home detention the Board raised something called ‘personal deterrence’ and the victim’s views, and even the public concern for victims expressed in the 92% Withers petition for tougher sentencing to justify holding a man that nobody thinks will offend again.They were morally right, but the reasoning was crap.Now their reasoning is better but the outcome is wrong.

There are arguments to get around the Court of Appeal decision. They could have said “we are not letting you out because it would make a mockery of justice. If people believe that court-ordered sentences are nonsense, they will feel that crime does pay, that honesty is not the best policy, that only mugs obey the law. That loss of confidence in justice, in the basic fairness of the law is very dangerous to everyone in the community.”

They could have set it out like this (for appeal proofing purposes) ” we are not trying to deter bad people, we are trying to reassure good people – to reassure them that it is worth assisting the Police, that it is correct to teach your children that crime will not pay, to show that the long arm of the law will ensure the price of crime is paid”.

They could have had good academic support. The safety of the community is dictated by the crime rate, not individual release decisions. And there is strong evidence that the crime rate is most affected by what people believe is the prevailing norm. If it is generally not done to break the rules – few do. People on the crime margin are sensitive to what appears to be the prevailing climate. They should be the preoccupation of the system. Every element should be driven by its influence on those who could offend but do not (in low crime societies), or can and do (in high crime societies). Our religious forebears might have expressed it simply – the system should focus on those in temptation, not those who’ve made the decision to be bad.

Instead ours is all focussed on those who have offended, and the vain task of turning them around once they have crossed the threshold. The international evidence says it is a waste of time.

“Broken windows” is the shorthand name for the theory which underlay New York’s dramatic crime turn-around. The police stopped concentrating on serious crime. Instead they enforced all the small laws (like those against shoplifting and begging, and leaping the turnstiles in subways, even jaywalking and littering. They insisted that graffiti be cleaned up immediately because it sent the message that rules do not apply. The result, in short order, was to cut every category of serious crime by more than 70% and the murder rate by 80% (in some years parts of provincial New Zealand now have a higher murder rate).

Even if they could not step outside the NZ establishment orthodoxy enough to raise those arguments I would have respected the Parole Board much more if they’d simply said to the government in the decision- “Change the unjust law. We are going to find every way we can not to apply it the way you want. We are sick of carrying the can for your dishonest criminal statutes. We will not tell the victim who is comforted by a 7 year sentence that sentencing is a calculated lie, a charade to be undone by parole” .

There is nothing unprecedented in a court or judicial body telling the poor litigants not to blame them when a law does not work, and asking Parliament to fix it.

I have often excused the Parole Board for sad cases because the law is bad. But I’ve been too charitable. They’ve never called for reform.

At the Graeme Burton enquiry they should have said ” We are ashamed of ourselves. There have been too many Graeme Burtons. We have not spoken out about the impossible law we are applying. From now on we will”.

In this McNamara decision they initially told a few insiders who can understand the code- “this law is hopeless, and we are now going to ignore it”.  Now I would not let them out of the dock.

I hope this is appealed.

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