Dame Sian's last stand?

01:50, Aug 27 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.

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.

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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.