Changes to Bail and the Presumption of Innocence

The Herald on Sunday editorial today (29 April 2012)  raises some valid points about the horrendous situation that occurs when someone on bail offends violently.  However while Judith Collins wants to make it difficult for people presumed innocent to get bail, the proposals are going to create significant problems of their own. By "violent offence" a definition is used that includes those defendants charged with an offence that attracts a sentence of 2 years or more. Police frequently "over charge" in the District Court, with a view to extracting a guilty plea to lesser charges.

I recently assisted a client in a jury trial, where he was charged with assault with intent to injure and burglary. He was a local builder accused by Police of walking over to a neighbour's house at 2-00 am in the morning after over 5 weeks of the young drunken tenants continuously playing heavy metal music at all hours and assaulting them. He was bailed at first instance and had to wait over a year for his trial. During the trial it emerged that Police and their witnesses never properly identified my client and in fact it was most likely someone else who entered the property and assaulted the neighbours. After a week's trial he was acquitted in just twenty minutes. Under the bail changes he would face a reverse onus in terms of his liberty, and once remanded in custody would have lost his job and would have been unable to support his family. Further the mortgage would have not been able to be paid and a family would have lost its home.  Worse still, if he wished to maintain his innocence and defend the charges at trial, he have to wait over a year for his day in Court. Further once acquitted he will never be compensated for what he has truly lost.

Under such a regime, people such as my client would be placed under tremendous pressure, to plead guilty, to get it over with, even though they may well be innocent.

There are around 9000 inmates currently in our prisons and it costs say $285-00 per day to house them, that means it costs our country $2,565,000-00 per day to house our inmate population. If we start banging away more and more people even though they are presumed innocent it is going to become very expensive indeed. Worse, good decent people who are charged, when faced with the prospect of a lengthy remand in prison and the financial ruin that that involves are going to be placed under tremendous pressure to plead guilty even when they may well be innocent. 

The Role of Victims in Sentencing and Parole

      The recent debate about increasing the "role of victims" in the sentencing processes in our Courts is a good thing, those who suffer as a result of crimes should be heard. However we must be careful not to allow our courts to become platforms where the suffering of victims is relived again and again and again for the sole purpose of allowing someone to express hatred or to have the scab that has begun to heal continually picked open to  satisfy a push by extreme sector groups to establish what to my mind appears to be a purely retributive justice system.

      Victims are not a special class of persons. They like all of us come with different backgrounds and life stories. Most I have genuine sympathy for. Some however can be just as untruthful as a convicted accused. Some just want to forgive and forget and allow time to heal. I have seen cases where a Judge wanting to find out how a victim "really feels" actually through questioning made a victim go from wanting to forgive an accused to breaking down and crying for revenge. 

      Sometimes  I have seen cases where one person who commits an offence will get a wildly different sentence from another person who has committed the same type of offence. The only difference being the views of the victim. Parity in sentencing can be eroded by placing undue weight on the views of victims. Further, just because someone is a victim of offending their ability to speak only the truth with complete objectivity is not guaranteed. To develop policy based upon the views of people  when they are still in the melting pot of raw emotion is   dangerous. Indeed that is the sort of passion that fuels mob justice.

      It is entirely proper that victims can make submissions at all hearings of the trial and parole processes.This reflects an international trend in relation to victim’s participation in sentencing and the parole stages of sentence. Impact is properly taken into account in terms of sentencing.  As Matt Black opined in his May 2003 paper published by the Australian Institute of Criminology; Victim Submissions to Parole Boards: The Agenda for Research:

If victim submissions are likely to have a large impact on parole decisions, disparity may arise between offenders whose victims make submissions and those whose victims do not. The mere presence of a victim submission seems small justification for treating an offender more harshly. It was noted that the parole board studied by Parsonage et al. (1992) subsequently reassessed its guidelines to clarify how victim submissions should be used (Bernat et al. 1994).

      To accept a victim’s statements regarding their belief about sentence integrity as a reason for sentencing in a certain way or for denying parole presents difficulties. There is the clear risk of disparity in sentencing and parole outcome for people  presenting with similar fact patterns:  the same offending characteristics can affect two individuals in completely different ways. The same assault on a confident physically resilient person, for example, may well have a less serious impact both emotionally and physically than it would on someone of the same age etc but with poor health and a nervous disposition. Similarly, two individuals may well have completely different views as to severity of punishment, for example length of time to serve before release on parole, which fits the crime. In both cases, the risk of inconsistency would be increased.

      Black (see above) referring to the use of victim submissions to parole boards in Australia notes that Tasmania has one of the most comprehensive legislative frameworks for the use of victim submissions in the parole process (in Australia):

The Tasmania Parole Board's (2001) view is that "in nearly all cases it would be wrong to refuse parole solely because of the objection of a victim". However, it does see victim submissions as "relevant to the sort of conditions which would be imposed on [a] parole order". For example, the board commonly imposes freedom of movement restrictions in order to ensure the offender does not come into contact with the victim.

   

      As noted from the 2005 Annual Report of the Parole Board of Tasmania:

The Board considers it would be wrong and contrary to the requirements of the Act to refuse parole solely because of the objection of a victim or relative; such objections are relevant in the overall decision making process and are certainly relevant to the sort of conditions which would be imposed on any parole order that might be made. For instance the Board almost always imposes limits on the freedom or movement of parolees in order to eliminate or at least reduce the risk of the prisoner coming into contact with a victim of his criminal behaviour.[1]

      Mr Black, in the paper cited above, referred to the United States study by Parsonage, Bernat and Helfgott (1992) who conducted a pilot study into the effect of victim submissions upon parole decisions. Mr Black reports this highly instructive study as follows:

The authors studied parole data from 1989 in the state of Pennsylvania and divided the 3,559 parole decisions into two groups: cases in which a victim impact statement was present and cases in which one was not. The authors then randomly selected 100 cases from each group. Various data were collated, including offence variables (such as type, seriousness and plea) and offender variables (such as ethnicity, gender, occupation and education).

The study found that parole was refused in 43 per cent of the victim impact statement cases and seven per cent of the non-statement cases. This contrasted with the board's own decision-making guidelines that suggested parole should have been denied to 10 per cent of the victim impact statement cases and seven per cent of the non-statement cases. In summary, the presence of a victim impact statement had a significant impact on the parole outcome across all types of offence, offender and victim. Apparently, the mere presence of a victim impact statement predisposed the board towards denying parole.

      This study reinforces the need for careful attention to the need for consistency, parity, and giving due, but not undue, weight to victim submissions.

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[1] Chris Webster, Chairperson Parole Board of Tasmania: Annual Report of the Parole Board for the Year Ended 30^th June 2005, Pp4-5.

Everyone Needs A Break...

EXTRADITION - WHAT REALLY MATTERS

In light of the Kim Dotcom drama playing out I have been thinking about how our Government and to be fair most other government's in the West have been prepared to surrender their citizens' into the hands of the US justice system for alleged breaches of copyright.


What we are talking about here is the extradition of people from within the borders of sovereign countries to the US because they are accused of diverting money away from US corporate  interests. In other words we are talking about people who are accused of diverting revenue away from private business interests.


While the US will flex its muscles to compel other countries to surrender others when money is at stake it is entirely another matter when other countries seek to extradite a US citizen to face trial in other countries for their wrongs.  The US has a consistent record of inconsistency in this regard. The clearest example the US's one rule for us and another for everyone else can be seen from the fact that not one US citizen has ever been held to account for the deaths of thousands of Indian nationals in the Bhopal Gas Disaster.

In December 1984, a plume of toxic gas from an American-owned Union Carbide pesticide plant wafted over the city of Bhopal, India. The initial leak killed 2,000 people with thousands dying later from the after effects of the toxic gas, an ingredient in pesticides the plant produced.

Officially some 578,000 people were affected. Yet there were no criminal convictions stemming from the leak until June 7, 2010, when eight former executives of the company's Indian subsidiary were convicted of negligence. The men were sentenced two years in prison and fined 100,000 rupees, or $2,100.

Victims groups and activists, who had sought more serious charges, immediately criticized the verdict. The defendants, one of whom is dead, were all senior officials of the company at the time of the leak, India's deadliest industrial disaster.

Indian government officials in June 2010 announced a raft of measures, including increased compensation for victims and a fresh effort to extradite Warren M. Anderson, the octogenarian former chairman of Union Carbide.

The convictions were announced after a bitter quarter-century-long court battle. Initially the defendants were charged with culpable homicide, which carries a maximum sentence of 10 years, but India's Supreme Court reduced the charges.

The company has always claimed that the leak was a result of sabotage, but evidence has pointed to poor safety procedures and maintenance. Advocacy groups have lobbied for years for tougher action against Union Carbide and its chief executive at the time, Warren Anderson. Importantly not one US national has been extradited to be held to account for what happened in Bhopal.

So, you could be extradited to the US if you stand accused of diverting money from corporates based there, but if human life has been lost as a result of the actions of US corporate interests in another country, the US will fight tooth and nail to make sure  that the heads of those corporates are never held to account in the country where the wrong occured. 

Romney - Tax Rates & Faith

In many ways Republican contender Mitt Romney reminds me of our current Prime Minister John Key. Romney may be many times wealthier than Key (Key however is a big fish in the New Zealand pond), but like Key he made his  money  trading. And as we know wealthy people must know about business and job creation? Like Key he has been a beneficiary of tax cuts to the rich. These tax cuts, often funded by massive state borrowing have seen a growing decline in real wages for ordinary people, while at the same time the super wealthy have seen their wealth dramatically increase. The logic behind this rising inequality is the belief that the super rich are drivers of growth.

Under reforms made by President George W. Bush, dividends, capital gains and other returns on investments Romney made as head of Bain Capital are subject to a marginal rate of 15 %, compared to 35 % for regular income above US$379,150. After Warren Buffett, the billionaire investor, complained that he paid a lower tax rate than his secretary, a so-called ‘‘Buffett Rule’’, closing the loophole, was proposed last year by President Barack Obama but is opposed by Republicans, including Romney.

In any event the incredibly wealthy Romney could potentially be a leader of the most powerful nation in the West. He is a devout Mormon and as such believes the following: The Book of Mormon is considered by the Church of Jesus Christ of Latter Day Saints to be a divinely inspired book of equal value to the Bible. Joseph Smith, founder of Mormonism, claimed that he was directed by an Angel to a hill near his home in which he found golden tablets containing the full text of the book. With the plates he found two objects called the Urim and Thummim which appear to have been like a pair of magical spectacles, which enabled him to translate the ancient writing on the gold tablets. Unfortunately, but conveniently for Smith after he finished his translation, he had to return both the spectacles and the plates to the Angel, so there is zip physical evidence that they ever existed.  Incidentally while America may have been the birthplace  of Joseph Smith, it was also the birthplace of P.T. Barnum,  who is credited with saying, "There's a sucker born every minute."

While Romney's Mormonism may be weird and does suggest that if one believes that one could believe anything, what causes more concern is his belief as an article of capitalist faith that if taxes are raised on the rich, job creation will stop.

Trouble is, sometimes the things that we "know" to be true are wrong. For the larger part of human history, for example, people believed that the sun circled the Earth with the earth being at the centre of the universe. It doesn’t, and it isn't. The conventional wisdom that the rich and businesses are our nation’s “job creators” is every bit as false.

You might be a very successful venture capitalist and help start a dozen companies and hire hundreds of staff. But if no one can afford to buy what you have to sell, your business will soon fail and all those jobs will evaporate.

You see ultimately rich people don’t create jobs, nor do businesses, large or small. What does lead to more employment is the relationship between customers and businesses. Only consumers can set in motion the environment that allows companies to survive and thrive and business owners to hire. An ordinary middle-class consumer is far more of a job creator than Mitt Romney will ever will be.

True, one cannot have a dynamic and growing capitalist economy without entrepreneurs and investors. But without consumers, you can’t have entrepreneurs and investors. And the more we have consumers with lots of disposable income, the better businesses will do.

That’s why our current policies appear flawed. As in New Zealand we see in America  the middle class defending a tax system in which the lion’s share of benefits accrues to the richest, all in the name of job creation. In the meanwhile while most of us are getting squeezed the rich get richer.

Since 1980, the share of the United States income for those in the top 0.1 percent has increased 400 percent, while the share for the bottom 50 percent of Americans has declined 33 percent. At the same time, effective tax rates on the superwealthy fell to 16.6 percent in 2007, from 42 percent at the peak of U.S. productivity in the early 1960s, and about 30 percent during the expansion of the 1990s. In Romney's case, that meant that last year, he paid around a 15 percent rate on his eight-figure income.

One reason this policy is so wrong-headed is that there can never be enough of the superrich to power our economies. The annual earnings of people like Romney are hundreds, if not thousands, of times greater than those of the average American, but he does not buy hundreds or thousands of times more stuff. His family may own 15 cars, but you can be sure he won't own several thousand. He might own many trousers and shirts and may well buy more every years and like everyone else, he may go out to eat occasionally with friends and family.  The point being no matter how someone who is extremely wealthy, like Romney, spends their money they can never do do in a way that creates a significant  lift in job creation.

Ultimately wealthy businesspeople don’t create jobs. Middle-class consumers do, and when they thrive businesses grow and profit. That’s why taxing the rich to pay for investments that benefit all is a great deal for both the middle class and the rich. Yet Key and Romney favour a system that cements their own wealth at the expense of the majority. They do this as a concomitant of their belief that they alongside other members of the wealthy elite are the drivers of growth. In doing this they have forgotten that capitalists without customers are out of business.

To my mind while Romney may believe in some weird space Jesus and follow a religion founded by a snake oil salesman, it is more worrying that he believes that by virtue of being mega rich he should enjoy a favoured tax status compared with ordinary people. The issue here is not class envy, hating a rich person because they are rich, but class interests – cementing the advantages of the privileged over the rest. The problem is not personal, it's systemic. In the current climate, politics in the West appears largely controlled by wealthy people in business who decide which wealthy people in power they would like to tell poor people what they can't have because times are hard. While at the same time cementing class privilege for the wealthy because they are after all - the job creators, when this is patently not the case .

Cap'n Key and the Costa Concordia

The media in New Zealand are afflicted with a very bad dose of  the disease of unfounded admiration when it comes to John Key. Here is a man who earned his spurs as a senior manager at Merrill Lynch speculating on currencies in a way that contributed to the Global Financial Crisis.

When first campaigning for office Key suggested that the way forward for NZ was to copy the Celtic Tiger (this was in 2007, when the global slide was well under way), only for Ireland to be seen for what it really was - not so much tiger as neutered kitten who didn't go and hunt its prey as rather mew and eat from a bowl it is only now paying for.

When Key was opposition leader he used to slam Michael Cullen for running huge surpluses, when Dr Cullen said we needed a buffer for the down part of the cycle. When the global crisis hit, Finance Minister Bill English said it was lucky the books were in such good shape and we had no net debt. Since then he has gone on the biggest debt binge in history. Indeed Key first attacked Labour in 2008 for the bleed of Kiwi worker to Australia, our high unemployment, and for the level of poverty in New Zealand. In all these areas we are now worse off than we were under Labour.  


One of National's 'key' slogans in the 2008 campaign was  ‎"Balance the books sooner". Key told us "National is on track to get the Government’s books back to surplus by 2014/15".  Now in January Key admits what most of us knew - the claim was rubbish. Around 65 years ago Orwell wrote that "the great enemy of clear language is insincerity." When politicians make promises on hoardings that are insincere or make no meaningful sense then they remove from our democratic process the ability to choose between competing ideas and plans. National campaigned on a promise they knew they couldn't deliver on. Yet Key says, it is not his fault. Rather the problem lies with Christchurch and the Global Financial Crisis. There is only so long that people will put up with being told this. The Government will spend $18.5 billion more this year than it will bring in. Only half that deficit is caused by Christchurch. So when National says it stands for "less debt", it is making a statement that simply isn't true.

Under Key we have witnessed the steady march to New Zealand becoming a police state with the increasingly intrusive surveillance powers given to an increasing number of government departments to spy on us, the limiting of the right for citizens to elect trial by jury, the increasing power of the police to extract DNA from citizens, the loss of the right for many offences to elect counsel of choice, and the steady erosion of press freedom.  I first noticed this with Radio New Zealand's poodle like banning of Martin 'Bomber' Bradbury  from National Radio for committing the new blasphemy - doubting John Key's omniscience. Worse came with Key treating the Police as his personal goons when a journalist accidentally left his microphone on a table where the two Johns' were having their staged conversation at a carefully managed publicity stunt and inadvertently recored what the two men said. The Dear Leader was incensed - how dare this man record what he said in anadvertised publicity stunt! That Key reacted by attacking the journo and calling in the Police like his private goons to muscle in on the media to gag what was recorded was gravely worrying. The tapes have now been leaked yet to my mind it was how Key reacted to the tea tapes tells us more about Key the man, than any actual content.

Then there is National's political patronage in appointing Stephen McElrea, Key's electorate chairman to the board of NZ on Air. The same body now worrying about programmes during election time being politically neutral (this was following TV3 broadcasting a documentary abour child poverty in New Zealand the week before the election. It is weird that informed programming about issues relevant to where our society is heading should be swept under the carpet during an election period when as voters we are asked to vote on where our society is heading. 

It is shameful that under National we have sunk another 5 places in the international register of media freedom, the press freedom index. National has nothing but contempt for human rights. We saw this with the Search and Surveillance Bill, the removing of access to Court for dismissed workers with the 90 Day Fire at Will law, and now they are allowing a totalitarian single party state that executes more of its citizens than any other country and is infamous for its arrests of artists, dissidents and religious worshippers to own a sizable chunk of New Zealand.

New Zealand is demonstrably worse off under Cap'n Key, than before he took the helm. Like the Italian captain of that ill fated liner the Costa Concordia, he will be one of the first to jump ship and bugger off when he steers the ship of state onto the rocks of depression and despair. You can bet your last dollar, Cap'n Key won't be hanging around when the band strikes up, "Abide With Me" as New Zealand and all who sail on her sink beneath the waves.