Tuesday, 29 March 2011

Is Our Current Approach To Sentencing Sensible?

David Cohen's latest book "Little Criminals" is a must read. It chronicles the history of the Epuni Boys Home. You will read how kids were sent there from the Court and went on to become big criminals. It is a useful insight into the New Zealand psyche that favours retribution and incarceration and why our prison muster per capita is the second highest in the world behind the United States - a stunning example of how "going hard” on young offenders can actually make the risk of offending worse.

Currently New Zealand is still in the macho grip of a punitive punishment psyche when it comes to dealing with offending. We face a cry to go even harder on the punishment of offending. Judicial discretion in sentencing is seen as a bad thing and sentences for offending reported in the media are often derided for being “light” by pro punishment groups such as “Sensible Sentencing.” Often the offenders who are denounced by this group are young Maori males. Interestingly this same group has spoken in the defence of middle-aged pakeha males who offend violently, such as the Aucklander who stabbed a young boy to death for spraying graffiti onto a fence.

Politicians such as Simon Power former conveyancing lawyer and current Minister of Justice, Judith “Crusher” Collins and pro-punishment groups such as “Sensible Sentencing” believe that denunciation and the deterrence of others should be the dominant sentencing principle. The rationale behind deterrence is if people go to prison, that would be offenders would be deterred from like behaviour by virtue of the sentence imposed. Against this the New South Wales Sentencing Bench Book (Judicial Commission of New South Wales 2008) under the heading Criticism of Deterrence, records:

"A study by the Bureau of Crime Statistics & Research found that increased severity of sentences for driving offences made no difference on the recidivism rates: S Briscoe, “The impact of increased drink-driving penalties on recidivism rates in NSW” (2004) 5 Alcohol Studies Bulletin 1."

"Overseas studies have analysed the effectiveness of deterrence theory: Von Hirsh, Bottoms, Buvney and Wikstrom, Criminal Deterrence and Sentence Severity, 1999, Hart Publishing, Oxford. A recent Canadian study reviewed empirical research in several countries on deterrence and urged its readers to conditionally accept the hypothesis that crime levels are not affected by the severity of sentences: A Doob and C Webster, “Sentencing Severity and Crime” in M Tonry (ed) Crime and Justice. A Review of Research, 2004, University of Chicago Press, Chicago."

Further recognition of the tenuous link between sentencing and actual deterrence is gained from John M. Darley in “On the Unlikely Prospect of Reducing Crime Rates By Increasing The Severity of Prison Sentences (Journal of Law and Policy) July 2005, where after reviewing recent studies he observes:
"Two recent reviews analyze the findings of these aggregated effect studies. The chronologically earlier one is a commissioned report that is quite circumspect in its conclusions, asserting only that “none of the associations [between severity and rate] is of sufficient magnitude to achieve statistical significance,” a sort of Scottish “not proven” verdict. The later report is blunter. It reviews a number of sentence severity and crime rate studies, including ones made possible by “three strikes” laws, and subjects them to careful methodological scrutiny. The report asserts that we should accept the fact that there are no general demonstrations of crime rate reductions achieved by alterations in sentence that are “within the [severity] limits that are plausible in [w]estern [s]ocieties.” Given the remarkable increases in sentence found “plausible” in the United States in the past decade, it is unlikely that the changes in severity have been too anemic to produce rate reduction effects. Pending new studies that overturn this conclusion, it seems that increasing the severity of sentences is not reducing the rate of crimes."

The decision of the English Court of Appeal in McInerney, Keating v R (CA 19 December 2002) 2002/3547/W5 is of relevance in relation to sentencing principles and goals:
"We also refer to two of the paragraphs dealing with the causes.

"12. Many prisoners’ basic skills are very poor. 80 per cent have the writing skills, 65 per cent the numeracy skills and 50 per cent the reading skills at or below the level of an 11-year-old child. 60 to 70 per cent of prisoners were using drugs before imprisonment. Over 70 per cent suffer from at least two mental disorders. And 20 per cent of male and 37 per cent of female sentenced prisoners have attempted suicide in the past. The position is often even worse for 18/20-year-olds, whose basic skills, unemployment rate and school exclusion background are all over a third worse than those of older prisoners.

14. There is a considerable risk that a prison sentence might actually make the factors associated with re-offending worse. For example, a third lose their house while in prison, two-thirds lose their job, over a fifth face increased financial problems and over two-fifths lose contact with their family. There are also real dangers of mental and physical health deteriorating further, of life and thinking skills being eroded, and of prisoners being introduced to drugs. By aggravating the factors associated with re-offending, prison sentences can prove counter-productive as a contribution to crime reduction and public safety."

2 To maintain a situation, which makes no contribution to changing this picture, will not increase but reduce the confidence of the public in the criminal justice system."

The same logic was reflected in our own Court of Appeal, in a different age to the conservative punitive one that currently dominates, noted in the case of R v Aston [1989] 2 NZLR 166, 171 (per Cooke P):
"As well as the moral guilt of the criminal, the deterrence of crime and the need to protect the public, factors that have usually been seen as legitimate in sentencing include retribution and denunciation … In our view there is some room for the idea of retribution, provided that it is not allowed to dominate. Populist urgings of longer sentences have to be seen in perspective and are less than helpful. At the same time current responsible opinion within the community, so far as it can be gauged and allowing sometimes for limited knowledge of the facts, cannot be ignored and is entitled to weight. And of course the consequences of the crime for the victim and the victim’s family can be major factors."

The UK Parliament Justice Committee released a report in January 2010 called “Cutting Crime – the Case for Justice Reinvestment'. This document in over two hundred pages is clear that imprisonment as a tool of deterrence does not work:
"The impact of sentencing on crime rates
105. There is significant controversy over what measures are effective in reducing offending, and a contributory factor is the lack of available evidence. The extent to which criminal justice activity has an impact on crime rates has been the subject of extensive academic debate. The Magistrates’ Association argued that without better data on re-offending rates, and on the effects of sentences, the reliability of current policy was questionable.174

106. The problems of interpretation and establishing causal links can be seen when the US and European situations are compared. The marked fall in the crime rate in the US, which has been attributed by some to the increased used of imprisonment, has been mirrored in Europe, where the opposite policy has tended to be pursued. The graphs below show the relationships between crime rates and use of imprisonment in Finland and England and Wales. Despite the higher rates of imprisonment in England and Wales relative to other EU countries, crime rates have not dropped as steeply here as they have in the rest of Europe.175

138. We are concerned that an assumption has been created that punishment is the paramount purpose of sentencing. There is an understandable public concern that offenders should suffer serious consequences for the crimes they have committed, but if other purposes, including reform and rehabilitation and reparation to victims, were given higher priority, then we believe sentencing could make a much more significant contribution to reducing re-offending and to improving the safety of communities. This depends not just on setting out purpose and aspiration, or on statements of intent, but on transforming the culture and ethos of the criminal justice system from a reactive approach to a genuinely scientific and analytic approach. Chasing crime, reacting to crime figures and, responding to public debate, has brought about a remorseless growth in prison numbers, which devours more and more scarce resource. The starting point—not just for sentencing, but for the work of the police, prison, probation service and the contribution of third sector organisations—must be to analyse how and why criminal activity takes place, the factors that influence the seriousness of offending and “what works” in reducing both the frequency and the seriousness of offending."

The true enormity of the problem can be seen from the remarks of our Chief Justice Dame Sian Elias' 2009 "Blameless Babes" Speech for which she was roundly criticised by Simon Power:

.... The latest indications from the Department of Corrections suggest that the prison numbers are continuing to rise. I want to talk about the drivers of these projections later. But the really bad news is that, if they prove accurate, in eight years time the prison population will reach 10,795, a 37 per cent increase. It means that our population will then be imprisoned at the rate of 200 per 100,000 population. We have been shocked to be told that we are second only to the United States in the proportion of prisoners to the total population. The comparison is in fact quite misleading because the rate of incarceration in the United States is four times ours. What is troubling however is the comparison of our rate of imprisonment with Australia, the United Kingdom and Canada. We have the sad distinction of imprisoning our population at a higher rate than any of them. And in respect of Māori prisoners as a proportion of the Māori population, the rate is very close to that in the United States.

The average cost of keeping an offender in prisoner for a year is nearly $100,000. That may be contrasted with an average cost per day of an offender on a community based sentence of $10.04. There is a looming crisis because we do not have enough prison beds...

If New Zealand is to empty its prisons we have to look at our culture and take populism out of dealing with crime. It makes no difference to the level of violence in our society whether we choose to reform our criminals or lock them away forever. This is so because new criminals are being born, new families are being broken up and new families are forced into poverty as a result of the breaking up of families through parents being sent to prison. 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. Currently all we have had is political posturing.

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