Dame Sian's last stand?

Last updated 15:40 16/07/2009

I don't know how much longer Dame Sian Elias is planning on serving as Chief Justice, but I suspect she's nearing the end of her term.

My reason for this is that she has recently delivered the most insightful and damning summary of justice policy in this country since the Roper Report.

It's also the most political speech by a Chief Justice I've ever seen.

If you've got the time to read Dame Sian's speech to the Wellington branch of the New Zealand Law Society's Women-in-Law committee, here's the link.

If you don't, I'll summarise it for you.

Justice Elias reckons successive governments have completely botched criminal justice reform, swinging wildly away from rehabilitation programmes and community sentences that were popular until the mid-1980s to a much more punitive, prison-based regime.

In that same time, Elias notes, the prison population has almost doubled, and the crime rate has risen "dramatically''. Coincidence? Dame Sian doesn't think so.

Basically, she says that public demand for tougher sentences and a general "tough on crime'' approach has seen politicians ignore expert advice and implement policies that are popular but don't work.

She says that the current fashion for making the victim the centre of attention in court cases is damaging the right to a fair trial and also harming victims financially and emotionally.

She says any attempt to make substantial or considered reforms to the system are rendered impossible by headline-grabbing news media sensation of the latest violent crime, which personalises the issue and fuels the public's appetite for even tougher sentences.

Justice Elias says there is no evidence that either locking people up or lengthening sentences reduces the crime rate, while it increases the chances of re-offending.

She notes:

"I should make it clear that I do not take the view that there is no place for prison...I accept that retribution is a proper response for serious crime...But all the evidence and all the informed opinions seem to point to the futility of believing that the causes of crime can be addressed by penal policy and the criminal justice process.''

She adds:

"If we are not to lurch from one increasingly punitive and expensive reaction to another, we all need to take responsibility for understanding the options and for buying in to the strategies that work, rather than knee-jerk responses.''

Justice Elias also notes the looming blowout in the prison population, and says it will rise by another 35% over the next eight years unless action is taken. So what does she recommend?

Pretty radical change, actually:

*Cutting the length of sentences.

*Changing bail and parole laws to make it easier, rather than harder, to get them.

*Greater use of community-based sentences, including home detention, and parole. 

*More early intervention to address the root causes of crime.

*Attacking drugs and alcohol and mental ill-health in prisons.

* And most controversially, allowing "executive amnesties'' where the Government essentially allows some low-risk prisoners to go free.

I can hear the hue and cry already. Dame Sian is about to become public enemy number one.

She's completely right, of course. Absolutely 100% correct. But it just so happens everything she says is diametrically opposed to this Government's justice policy. (And Labour's, for that matter.)

I've had a chat to Justice Minister Simon Power, and it's fair to say he's not happy with the Chief Justice. Butt out of government policy, and stick to your job, was the short version of his response.

It's a bit embarrassing, though. It's all very well for Leftie woolly-woofter prison reformers to call for this sort of thing. They can be dismissed as hand-wringers. Quite another for the country's most distinguished judge to say them.

Dame Sian has been a lawyer for 40 years. She's the country's first female QC. She's spent 10 years as Chief Judge. She's on the Supreme Court. She's well-read, intellectual, and a student of the law. If anyone's qualifed to tell us what's wrong with the justice system, she is.

But will the Government listen? Not on your nelly. The sort of stuff in her speech is political heresy. National was elected on a platform of being "tough on crime''. It's currently rolling out plans to make sentences longer, not shorter.

Dame Sian's solutions are political suicide. The Sensible Sentencing Trust will holler from the rooftops. Talkback radio will go feral.

So we'll just build more prisons. Lock more people up. The crime rate will continue to rise. And Dame Sian will be quietly replaced, probably within the next year.

How very depressing.

149 comments
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Andy Cap   #1   03:56 pm Jul 16 2009

Another brilliant blog Colin. Minister Power will not be amused by this speech. It will have him doing those Max Headroom impressions again.

Idiot/Savant   #2   03:59 pm Jul 16 2009

<I>And Dame Sian will be quietly replaced, probably within the next year.</I>

How?

You're a political reporter, so I'd expect you to know that the government can't sack judges. And she's nowhere near retirement age yet. The only reason she'll go is if she chooses to.

David   #3   04:04 pm Jul 16 2009

Be good to see the back of her, shocking hand wringing socialist who will hopefully be replaced by someone normal. If you dont want to go to jail dont break the law and you can bet your bottom dollar there are very few people sent to jail for their first offence. Hasnt the court of appeal judges reduced the sentances for two rapists and someone who while drunk punched their baby in the face ?

Go join Helen and Heather at the UN.

Idiot/Savant   #4   04:05 pm Jul 16 2009

Snark aside, Elias (and you) are absolutely dead-on in that critique of the justice system. Though one thing she stresses which you don't highlight is the need for community education to help us understand that the current "solutions" are not working and never will, so we can focus on ones which <I>do</I> have some hope. part of this is politicians being honest with the public and in eschewing lazy "tough on crime" tactics. She points out that when Finland confronted this problem, it involved an accord between political parties to tackle it seriously and eschew such tactics. Such an accord is depserately needed here.

Joshua Teal   #5   04:16 pm Jul 16 2009

Colin you're exactly right on this. Of course the media also plays a role in this situation, as you say:

"reforms to the system are rendered impossible by headline-grabbing news media sensation of the latest violent crime, which personalises the issue and fuels the public's appetite for even tougher sentences."

Its a pity the political parties have felt it necessary to buy into that thinking too. Why? Because retribution feels good and it gets votes, but it never ever solves anything.

I hope Dame Sian doesn't get sacked...

colin espiner   #6   04:17 pm Jul 16 2009

Idiot/Savant $2,

You're an intelligent guy, so I'd expect you to know that while the government can't sack judges, the Chief Justice essentially serves at the Government's pleasure. Yes, she's appointed by the Governor-General - on the recommendation of the Attorney-General. But you can't tell me that the Government has no influence over that appointment, and its lifespan.

I also made that comment because if you look at the average length of service of a chief justice (and I have) it's ten years. Dame Sian was appointed in 1999 - ten years ago.

That's why I wrote what I did

Andrea   #7   04:21 pm Jul 16 2009

I agree, it is very depressing. I do, however, wonder how Dame Sian would feel if she herself were the victim of a serious crime (God forbid). I (luckily) could only imagine how that may alter a person's view of the length of prison sentences. It would be interesting to know what type of offending Dame Sian believes should qualify for such an amnesty.

Bea   #8   04:24 pm Jul 16 2009

And she will retire on a fat pension. I am somewhat surprised that she is 100% correct. Even the Pope rarely claims that!

I for one don't really care about the brutal misfits in our prisons. I'd rather they were locked up till they are too old to do me and mine any harm. That's one cost I am prepared to carry as a taxpayer.

Trying to salvage brutalised youth may have some potential though it's hard to see us making much headway when petty crime, booze, drugs and cars have far greater appeal and involve less effort.

Decriminalising drugs still seems a sensible option to deny the gangs their main source of income - and raise some more tax to pay for the prisons!

We also need to do all we can to keep kids in school as long as possible - NCEA is an excellent start for many to give them the taste of success they need to persevere. These kids are rarely very bright, usually have the beginnings of mental illness and are already into many high-risk activities. School can be a steadying and saving force. That's where we could put some more resources rather than propping up our extremely expensive justice system with its costly and inefficient courts and over-paid judges.

Kat   #9   04:39 pm Jul 16 2009

Good blog Colin. Labour and National are both guilty of pandering to the populist view on this one. Your "Leftie woolly-woofter prison reformers" remark however is countered by the "Rightie hang em all high and hang em all hard" brigade. Obviously what is needed is a very in depth and comprehensive exposure of what Justice Elias terms 'the root causes of crime' in this country. And I don't mean some lip service committee but a serious bipartisan review taken out of the usual political football game. And I say again, a good start with any solutions is to bring back Plunkett in full force.

South Islander   #10   04:44 pm Jul 16 2009

Justice Elias says that despite our "punitive, prison-based regime" the crime rate has increased "dramatically". Actually, that is not true, statistics (adjusted for population growth) show that crime rates has stayed relatively stable. Some crimes, such as violence against women and children, are getting reported more as society grows to understand that they are not acceptable any more.

She suggests cutting the length of sentences, giving easier bail and parole, and "executive amnesties". So this will some how result in a lower crime rate??? I seem to be missing something here!

There are a couple of points she made that I agree with though. "More early intervention to address the root causes of crime and Attacking drugs and alcohol and mental ill-health in prisons".

I think, judging from the actions of some Appeal Court judges recently, that our judiciary has got way out of touch with reality. Justice Jane Farish practically cried went she had to sentence a dear, sweet boy, who just happened to rape a tourist, to prison. Thankfully, in this case, the Appeal court increased his sentence.

I'm not saying that locking everyone up for years and years will solve all our crime problems. However, I fail to see how a "softly, softly" approach will actually do any good either. Only by addressing the actual causes of crime will any progress be made.

The causes of crime are(in no particular order):Lack of good parenting, Drugs and Alcohol, Lack of self control, A belief that society/government owes you a living, Lack of personal responsibility.


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