Dame Sian Elias: More to crime than punishment

The level of crime is a source of proper public concern. In recent years the level of anxiety has intensified. What that means is that there are some particular challenges for those who work in the field of criminal justice and penal policy.

Popular anxieties are never an easy background for scientific discourse. There are no simple answers. But that message itself is hardly welcome.

Nor is the public and political debate easily informed in an age where mass communication is geared to simple messages. The images and stories of individual crimes are readily and graphically communicated and are properly shocking.

The level of anger and anxiety they generate is not easily addressed. But if we are not to lurch from one ineffective and increasingly punitive reaction to another, the debate must be reasonably informed.

Not just about the facts of crime but also about the principles and practices our law requires and how criminal justice fits into the wider legal system and its principles.

Perhaps the insights of criminology are not taken into account as much as they should be, but there is I think a growing appreciation of the insights to be gained from scientific research into crime and its causes.

Such research tests some of the assumptions and generalisations we have been too comfortable with in legal reasoning about such matters as provocation, vulnerable witnesses, victims, policing, gang culture, remorse, and alcohol and drug abuse.

My perspective is skewed by being that of a judge dealing with serious crimes in which the truly difficult threshold question of imprisonment or community-based sentence is seldom in issue.

It is also skewed by the fact that, as a judge of a court of general jurisdiction, I am concerned with wider values in the justice system than the ends of punishment in the particular case.

That makes me cautious about strategies that may have real merit in terms of penology but which could compromise other important values in the legal system.

Therapeutic intervention and incapacitation through secure containment of offenders have the potential to impact adversely upon human rights. Pilot programmes for sentencing (such as the current restorative justice pilot in selected district courts) and regional variations in the availability and quality of community programmes have the potential to cause injustice through inconsistency in sentencing.

Informality in the procedure adopted in youth courts as part of the restorative justice initiative (such as the acceptance of a no-contest indication at family group conferences and greater use of inquisitorial procedures) has the potential to undermine procedural safeguards developed over many years to ensure fairness and to prevent wrongful conviction.

The central position now accorded to victims in sentencing, bail, and parole determinations and the importation of a concept of community distinct from the State both have the potential to change the face of public justice and to cause inconsistency in sentencing.

If parole eligibility arises at an early stage of the sentence (as it does under the New Zealand legislation) and requires reconsideration of the factors taken into account at sentencing, public expectations of truth in sentencing may be disappointed and, more importantly, in effect substantial sentencing discretion (in our system a judicial responsibility) has been transferred from the court to the Parole Board.

In addition, we continue to struggle with the disparate ends of sentencing and the lack of a coherent theory of punishment to provide guidance to judges and to quell those who believe the sentencing judge is a free-wheeling palm tree, accountable to no one.

I do not suggest that these risks will necessarily eventuate. But we need to take care.

Research from the 1920s into the causes of crime identified the multiplicity of factors bearing on criminal behaviour, including the personal background of the offender and the social conditions in which he developed.

That led to therapeutic interventions and welfare programmes for rehabilitation.

From the 1970s empirical research increasingly seemed to suggest that optimism about the efficacy of the initiatives adopted in preventing crime had been misplaced.

Through the 1980s in particular the prevailing mood that nothing works resulted in widespread retreat from programmes of rehabilitation and paved the way for more punitive responses.

In her Hamlyn lectures in 1963, Baroness Wootton advocated treating crime as a social pathology best addressed by medical and social services, with prevention of crime the primary policy of sentencing policy.

By 1981, she was pessimistic. Reviewing her earlier lectures then, she expressed sadness that in the intervening 17 years in spite of all the words that had been spoken and books and papers that had been written on penal policy, the crime rate had persistently risen the prisons were more crowded than ever.

The conclusion that crime and its causes cannot adequately be addressed through penal policy alone strikes me as inevitable.

If punishment is rightly to be seen as a backup to more reliable social mechanisms, it is critical that the strategies for addressing crime are wider than penology can deliver and that they are directed at reinforcing and building on the mainstream processes of socialisation.

But it does not follow that those who have slipped through the cracks should not be the subject of specific strategies delivered through the criminal justice system.

Nevertheless, in the last 20 years there has been widespread public and professional disillusionment about the effectiveness of rehabilitative strategies.

Crime rates rose during the period dramatically. There were calls for increases in prison sentences and the imposition of minimum sentences. In New Zealand the average prison muster increased by 99 per cent from 1985 to 1999.

Pessimism among professionals and government policy advisers led to a retreat from rehabilitative programmes. Law and order became a highly charged political issue. Public confidence in the criminal justice system declined.

My sense is that the mood has turned a little. There are signs that professional pessimism about the efficacy of corrections-based programmes for rehabilitation may be waning. The huge public cost that results from recidivism means that a punitive strategy alone towards offenders is demonstrably contrary to the public interest. That message has I think been understood by decision-makers.

The fact that we cannot expect too much of strategies for dealing with those in the criminal justice system has not deterred us from seeking better ways. In law reform of sentencing and parole considerable effort has been made to ensure that a proper response to electorate requirements that serious offending is met with firm punishment does not require the imprisonment of those for whom a community-based sentence will best promote reintegration.

Nor does it preclude programmes to rehabilitate. Effort continues into the causes of crime, in significant studies of the mental health and other characteristics and history of prison inmates.

It would be wrong not to acknowledge that this work is an outcome of the political will to address crime. And that political priority is to be welcomed, not deprecated.

Better communication with the public about the efficacy of sentencing options is clearly necessary however. (It would certainly help the sentencing judge!) There appears little public consensus that the interests of the offender and society are reconcilable. At the same time, there is an unwillingness among some to face up to the cost and risk to society in treating prison and lengthier prison terms as the best strategy for dealing with crime.

Some groups seem to consider that community-based sentences are no punishment and are ineffective compared with prison sentences. The research into the comparative efficacy of sentences needs to be more widely available.

Canadian research demonstrates that rehabilitation is not promoted by prison sentences and that community sentences are more effective in reducing crime.

Long prison sentences are counterproductive for the eventual security of the public, measured by recidivism rates. Getting that message across should be a priority.
If we are serious about crime reduction, then it seems to me we have to have a strategy that goes beyond criminal justice.

Such strategy is discussed in the Department of Corrections 2001 publication About Time. It is clear it would require a wide public commitment and a willingness to reserve imprisonment for serious crime.

The Sentencing Act 2002 points in that direction, although it does not rank the policies of sentencing to make things explicit. It is not clear to what extent a wider strategy than a punitive penal one has widespread acceptance.

In the meantime, judges are left with the criminal justice system. Criminal law is the bluntest of society's social instruments of control.

The Sentencing Act 2002 avoids mandatory and for the most part minimum sentences. It is a restrained and sophisticated statute that identifies the purposes, principles and factors bearing on sentencing, without ranking them.

It creates a presumption in favour of reparation, and is supportive of community-based sentences and restorative justice procedures and outcomes.

Because the principles identified are mandatory considerations and because of the statutory requirement to give reasons, full explanations of sentences are necessary.

It is early days yet, but some of my colleagues on the Court of Appeal think they can detect a drop in the number of sentence appeals as a result of the elaboration of reasons against the statutory considerations. It is hoped that the more extensive consideration required will also achieve greater consistency in sentencing.

The purposes of sentencing identified in the act are familiar considerations. They include denunciation, deterrence, rehabilitation and reintegration. But they also emphasise accountability to and reparation for the victim and the community.

The principles required to be taken into account are for the most part similarly familiar, starting with the culpability of the offender and the seriousness of the offence.

The court is required to impose the least restrictive outcome that is appropriate in the circumstances (with a hierarchy of fine, community-based sentence and imprisonment), but is directed to impose penalties near to the maximum if the offending is near to the most serious of its type.

The Parole Act 2002 provides for home detention for those serving short-term sentences (two years and less) who have been granted leave by the sentencing court to apply and eligibility for parole for those serving long-term sentences after one-third of the sentence has been served unless a minimum non-parole period is imposed by the sentencing court.

The paramount consideration in releasing an offender under section seven of the Parole Act is the safety of the community. Subject to that consideration, offenders must not be held any longer than is consistent with the safety of the community. The rights of victims and any restorative justice outcome must be taken into account by the Parole Board. It remains to be seen whether the new system over time results in a reduction of the prison population.

It is not clear whether the safety of the community permits the Parole Board to reconsider general deterrence and denunciation. If so, the board will effectively be undertaking a second sentencing exercise.

The length of the period of eligibility for parole may give rise to difficult decisions and issues of principle.

As a Corrections Department study shows, many of those assessed as being a high risk to the community have been sentenced for relatively minor offences. It is reasonable to expect that some of those sentenced for crimes that have outraged the community may be assessed at low risk of re-offending.

Under the legislation they may be released after one-third of the sentence imposed unless a minimum non-parole period has been imposed. There are concerns from some about the methodology of assessment of risk and fears that it discriminates against those of particular race, social background, and mental health status. It is likely that matters such as these will end up before the courts.

Although understandable that the sentencing legislation does not rank the purposes of sentencing, it seems that the axis between retribution and rehabilitation remains. That is likely to be less troubling to the courts than to legal philosophers.

Most judges do not adopt the utilitarian view that the only ethically defensible end of criminal punishment is crime prevention. The view is regarded as counter-intuitive to the deep-seated belief that someone who has committed a grave crime should be punished.

Just punishment is considered a proper response to transgression of the criminal law. And, indeed, is considered in itself to have rehabilitative value.

I do not think that the problems are insurmountable. It is certainly the case that in the past victims have felt marginalised in the criminal justice system. The criminal justice system will adjust. But in achieving the balancing required by the sentencing policies of the act, some expectations may be disappointed and appellate and perhaps further legislative attention seems inevitable.

Similar problems may arise in application of an apparent policy of incapacitation. (I say apparent because it is not clear to what extent the size of the parole period is to be attributed to concerns for community safety and to what extent it is prompted by concerns about cost and/or the belief that release into the community is the best policy in achieving reintegration except in cases of risk.)

The courts are not well equipped to predict future behaviour, particularly when viewed at the time of sentencing. It is true that the same disadvantage attaches to prospects of rehabilitation, which have traditionally been considered in the sentencing exercise.

But that did not call for anything like the assessment that will now be expected of the Parole Board. And arguably, the court may now have to consider what portion of the sentence should be ascribed to deterrence and denunciation (and the subject of a non-parole period) and what is to be ascribed to the preventive detention (unless the prisoner is assessed by the Parole Board to be no risk).

I do not have answers to these questions. Nor do I know how the community is properly to be identified, and how it differs from the Crown. I conclude by reiterating the view that criminal justice is part only and not the most important part of an integrated strategy to deal with crime and the safety of our communities.In the age of talkback, it is important to communicate with the public about what works and what does not.

It is important that the views put forward are based on solid research rather than pious hopes or negative reaction. It is necessary to keep in mind that strategies to address crime must fit into a wider world view and be consistent with values which underlie our legal system.

* This is an edited version of the address given yesterday to the Australian and New Zealand Society of Criminology conference at Victoria University.