Why the justice system is failing.
The New Zealand criminal justice system is not just under-performing in its responsibilities to law-abiding New
Zealander’s, it is failing.
Contrary to the ideological belief of some, the justice system needs to work for the law-abiding, not the law-breaking.
As far back as Thomas Hobbes and John Locke in the 17th century it was identified that citizens within civilized society
give up their right to execute summary justice and retribution in exchange for protection from the state. This is known
as ‘social contract theory’. The state in turn utilises departments such as the police, the courts, and corrections,
coupled with legislation such as the Crimes Act, to fulfil its obligation to protect its citizens. Collectively this
process is referred to as the criminal justice system. The criminal justice system is an ambulance at the bottom of the
cliff. People who do not go over the edge do not end up in the criminal justice system unless there is a miscarriage of
justice.
What has come to pass in recent years has been the ideological viewpoint that it is the responsibility of the criminal
justice system to not only deal with criminals, but somehow, magically, to prevent them from committing crime in the
first place. To suggest for a moment, that it is the responsibility of the criminal justice system to address the
underlying causes of crime, is a fallacy that has been accepted into our thinking without rigorous examination. As an
example of this point, the 1990’s experiment of Community Policing was ‘refreshed’ in 2006. It aims for police to be
able to better prevent crime before it occurs. Not only is it naive, it is also wholly unrealistic. The fact is that
police know this too and if it were anything other than political window-dressing perhaps the police would allocate more
than approximately 1% of their annual budget to it. Make no mistake, the criminal justice system is not, and was never
intended to be, the attempted preventative welfare-style organisation that it has come to resemble today. What the
criminal justice system does is carry the collective stick of society and with it the responsibility for keeping
law-abiding citizens safe from criminals; and in that seemingly straight-forward task, it is failing.
The government of the day chooses how to spend money within the justice system. If it chooses to spend that money on
rehabilitation initiatives and put plasma screens in cells while thousands of kids in New Zealand grow up in violent
homes and go to school without having had breakfast, then that is its prerogative as it is run by democratically elected
officials whose fate is ultimately decided by voters. What must not, and cannot be allowed to happen, is that such
decisions are implemented in a manner that undermines or infringes the right of law-abiding citizens to protection from
criminals. The responsibility of the justice system to protect the law-abiding public must not be a political football
that can be kicked around at will dependent on political persuasion.
Whether attempts to rehabilitate criminals should be made is open to debate, whether such attempts do or do not work,
and what strategies work best to reduce re-offending. Debate is healthy in this area and it is in this area that the
findings of sound research can be applied. What should not be up for debate, however, is the right of law-abiding
citizens to be protected from those who have crossed the line and committed crime. The right to be protected from crime
is clearly enshrined in Article Three of the Universal Declaration of Human Rights which states that “Everyone has the
right to life, liberty, and security of person”. Crime is the single biggest threat to this right.
Under current sentencing laws there are four main objectives: accountability, deterrence, rehabilitation, and
protection. I propose for this to be changed to simply one: protection. It is the only one of the four that can be
regarded as being in any way objective. Let’s look at all these current objectives.
Accountability. To whom? For what? How do you define accountability? Is someone accountable if they say sorry? And is it
even relevant? After all, saying sorry after the fact does not change the reality that the crime has been committed.
These are questions that will garner different answers from different people. It is a measurement impossible to quantify
and will resultantly always leave one side feeling that it was not met.
Deterrence: To whom? For what? Different sentences will act as different deterrents to different people. For some a
stretch in prison may be a deterrent, for others it may not. Again it is a vague concept that cannot be quantified or
satisfied.
Rehabilitation: If rehabilitation is to occur within the criminal justice system it needs to occur independently of, and
after, sentencing. Whether or not rehabilitation occurs when an offender is in the criminal justice system should in no
way affect the sentence handed down by the judge. Rehabilitation should not be a goal of sentencing and should be
implemented as a secondary consideration (if and where appropriate) to the goal of protection.
And this brings us to protection; the only responsibility that matters when it comes to sentencing a criminal. If
protection is made the sole aim of a sentence the judge is not then required to walk a tight-rope whilst balancing these
so-called ‘objectives’. Instead, they ask themselves this: “Is the sentence I am imposing serving to keep law-abiding
citizens safe from this criminal”? If the answer is yes New Zealand will have a justice system that works. If the answer
is no, the judiciary are not doing their job.
In summary the Sensible Sentencing Trust is not a radical right-wing group as its opponents continually try to make out.
It has many members and supporters who have themselves been victims of serious crime, or who have had friends and family
who have been. These are people who come from all walks of lives, all political persuasions, and who sadly are only too
well aware of the failing of our criminal justice system in its current form to protect law-abiding New Zealander’s from
the significant number of serious criminals in this country.
The Sensible Sentencing Trust acknowledges that there is no ‘one-size-fits-all’ solution that will solve New Zealand’s
rampant crime rates. We accept that the underlying causes of crime are often complex and difficult to understand; if
they weren’t the problem would’ve likely been sorted and we would all be spending our time on far more enjoyable
pursuits. What we are clear on however, is that New Zealand’s criminal justice system has incrementally lost its way and
now serves the criminal better than the law-abiding citizen, and for that matter, the victims of their crimes.
New Zealand once was, and can be again, one of the safest countries in the world if we have the will and determination
to stand up against crime and refuse to accept it as a part of our lives. We all have a right to be safe within our own
homes, streets, and communities. We will continue to fight for that right and advocate for a tough stance to be taken
against those who would have those rights taken away from us.