Editorial: Judge is entitled to a hearing

The Chief Justice, Dame Sian Elias, had a shrewd idea that her remarks this week about the effectiveness of our criminal justice system would excite a superficial and kneejerk response.

Her comments were contained in a address delivered in memory of a distinguished pioneer of the legal profession in this country, Shirley Smith, who died in 2007.

Smith, a noted criminal defender of those at the bottom of the social heap, was a tireless critic of "the futility of escalating sentences", as Dame Sian put it.

In a letter to a newspaper in 1999, she wrote that "[providing] a prison at the bottom of the cliff is not a solution. Criminals will just go on falling into it, at great cost to the community. We have to find out why blameless babes become criminals."

Taking "Blameless Babes" as the working title for her speech, Dame Sian remarked ruefully that she supposed she would have to alter it because it is bound to be misrepresented along the lines of 'Chief Justice says murderers are blameless babes'."

And so it has proven. Dame Sian's critics immediately depicted her speech as calling for the opening of prison doors so that prisoners disinclined to remain could wander out. Justice Minister Simon Power, thundered somewhat superfluously that the Chief Justice's speech did not represent Government policy. The Act Party's Justice spokesman David Garrett's spluttering that it is "not judges' business to direct or even advise executive - that is a basic constitutional rule" was even more laughable. It is safe to say that if there were any gaps in the Chief Justice's understanding of the constitutional role of the judiciary, they would not be quickly plugged by advice from Garrett.

Yet the speech itself shows that, so far from advising, much less directing, anybody, the country's top judge has instead offered a thoughtful assessment of current penal policy.

In finding that it falls short of the ideal, she is in good company, which must include both Garrett and Power - although she would likely have a different explanation for the malaise. Where Garrett and his supporters take the approach that we should pursue with ever greater vigour punitive policies that are manifestly not working, Dame Sian chooses to ask whether, as a society, we should rethink what we are doing.

She did so in the mildest and most thoughtful terms, urging reconsideration of five different areas including early intervention, improvements in the probation and mental health systems and helping the community to understand that, since "criminal justice processes are largely irrelevant to crime reduction", we need to address the causes, not just the effects, of crime. Additionally, against the background of a well-publicised crisis in prison numbers, she mentioned several strategies, to do with remand and parole policies and referred, almost as an afterthought, to the possibility of an "early release amnesty". Those three words - in a well-crafted, learned and intelligent speech of 5000 - sparked the naysayers' howls of protest.

Our current prison muster is at a near-record 8400 and will, if Corrections Department projections are accurate, rise 37 per cent to almost 11,000 over the next eight years. Our imprisonment rates are higher than those of comparable jurisdictions - the UK, Australia and Canada - and with respect to imprisonment rates of Maori, we give the Americans - who are by a margin of four-to-one the world's most enthusiastic jailers - a run for their money.

Faced with a prison system half of whose graduates will reoffend within five years (and the recidivism rate is higher among those who serve long terms); and with the Government moving to double-bunking and locking prisoners up in converted shipping containers; we would be less than sensible if we did not consider alternatives to simply imposing harsher sentences. Dame Sian, who had a distinguished legal career behind her before Simon Power left primary school, has every right to express her thoughts on the matter. And we have every right to expect that our lawmakers read and closely consider what she has to say rather than rule her evidence inadmissible.