An unacceptable position on justice and imprisonment
By: Ani O Brien
Tags: Law, Politics, Criminal Justice, Justice, New Zealand

In recent years, the Overton Window of acceptable positions to hold on how we deal with crime and punishment has shifted considerably. Campaigning by prison abolition groups — once viewed as batshit crazy by virtually all sectors of society — has gained traction with the academic and activist leftists. Add to that the cries to “defund the police” that emerged from Black Lives Matter protests this year and we see the meta narrative of justice being framed differently by cultural elites.

It is certainly time we review the efficacy of the tools of the criminal justice system by utilising the information we now have regarding recidivism and inconsistent applications of the law. However, the conversation seems to have shifted to one that centres the perpetrators of crime and largely ignores the victims. While every reason under the sun is used to excuse criminal behaviour and absolve criminals of responsibility, little thought is given to the part of criminal justice that acknowledges the impact of the crime on the victim and relates to both punishment and protection.

It has become the Right On™ position to view criminal justice through a racial lens. Analysis of the overrepresentation of certain races and ethnicities in the prison population is preferenced over any other kind of analysis. Systemic racism is held up as the rotten core of the criminal justice system and the criminals are seen as the victims.

I argue that any systemic racism leading to the mass incarceration of Māori (in New Zealand context) needs to be addressed before it becomes a matter for corrections. The societal and economic indicators that lead to disproportionate involvement in criminal activity need to be the starting point. What is leading to these crimes being committed? What is it in relation to race that is creating this disparity in crime stats?

Then the next step is to look at policing. In New Zealand, we do not have a police force anything like that in the United States, despite the narratives that certain activists cling to. Rather, we have a police force that has in the last decade or so been dedicated to diversifying and working with and in communities. That is not to say they are perfect by any means. The question we need to ask of the police is: are you applying the law — from who you stop to who you charge with crimes — consistently across racial and ethnic lines?

It is my belief that anyone who commits a crime should then be dealt with by the criminal justice system. The answer to ending racial disparity in arrests and charges is to ensure that the law is being applied consistently to everyone. This principle must also be carried through to the courts. It is not acceptable that two people who commit the same crime with the same circumstances should receive different sentences based on race. The idea that we should simply make our system softer in order to appease an ill-thought-out concept of racial justice will only end in disaster.

In New Zealand, our government is preparing to repeal a controversial ‘three strikes’ law. Those on the left hail this move as a win for racial justice and while I agree the three strike system is flawed and ill-applied, I have huge concerns about a simple repeal without reform. The hole left by the law will give an already deficient system a substantial leak through which violent criminals will re-enter society. The government is even considering retrospectively applying the repeal so that prisoners will be let out much earlier than they were sentenced.

It’s best to split the issue into two and address reform for each half appropriately — non-violent crime and violent crime. In the case of non-violent crime, a simple case for following the evidence on recidivism rates can be made. We should be looking at how we can best prevent these crimes from occurring and lessening the cycle of re-imprisonment. There is plenty of discussion that says imprisonment doesn’t help to reform non-violent criminals, rather it graduates them to more serious crime. If we are to accept that this means we should not be imprisoning criminals, we must first establish how we will reform non-violent criminals instead. Simply ceasing imprisonments without providing alternative modes of justice and rehabilitation is madness. There is space for Ardern’s government to make some truly transformational changes to how we handle this kind of crime and how we allocate resources to corrections.

Violent crime is different. Violent crime, and especially sexually violent crime, creates traumatised victims. It destroys lives and families. It is my opinion, that in New Zealand we are not hard enough on violent criminals. I think we are woefully under-sentencing them.

When it comes to violent crime there are multiple things to take into account when determining punishment. Arguments that imprisonment will increase recidivism don’t hold as much water here and in any case the evidence is sketchy. Victims must be centred in the decisions made in court. They should be able to feel that they have achieved some amount of justice and feel protected that the person who attacked them is locked away for some time. Recently, in New Zealand, we saw a rapist sentenced with just a year of home detention because he had sustained a workplace injury since the rape and that would make incarceration “too hard” for him. This is totally unacceptable. That sentence provided no justice for the young woman he raped. Instead, that sentence shows how little the safety and bodily integrity of women matters to the New Zealand courts. Hardly a deterrent for future rapists either.

Repealing the three strikes law would be better done with reform of how we protect the community from violent criminals and how we punish them justly. I suspect most New Zealanders would be in favour of pragmatic approaches to non-violent crime if we could be sure that violent criminals were receiving more appropriate sentencing. No rapist should escape without a prison term.

I want to see harsher sentences for serious violent crimes. You can tell me longer sentences aren’t a deterrent all you like, but they at least send the message to victims that they matter and deserve proper justice. They also keep violent criminals out of the community for longer.

I realise this position may not be popular — as I said, prison abolitionism and defunding the police are in vogue. However, I find it difficult to take seriously the arguments of those who throw out thought-terminating cliches and wield accusations of racism in order to mask the shallowness of their understanding. I especially find it difficult to take seriously feminists who parrot the lines of their party on this without thinking critically about how it impacts women.

Women are disproportionately the victims of sexual violence and rarely the perpetrators. The same is true of general violence. It is women who will see their rapists and abusers out on the street far too early. It is women who have to stand in court and give agonising testimony only to see the judge give their rapist home detention. Race is relevant to discussions in this space, but it is not the only important factor — sex is too. What’s more, it is Māori women who are almost always the victims in the violent crimes committed by Māori men. They deserve justice too. You can beat the drum for men as much as you like, but as a women’s rights advocate my priority is women including — and in this space especially — Māori women.

I’m not sure if I was blind all those years and politics on the left was always a list of positions that all had to be adhered to, but it certainly seems so now. My position on crime and justice is not the accepted narrative. I’m supposed to cry for repeal and ignore the impact the vacuum will have on women. I’m supposed to be pro-prison abolitionism — a terrible idea for everyone, but especially women. I’m supposed to parrot rhetoric about racism without thinking critically about sex.

Without dissent and challenging ideas, this government and its ultra-engaged Labour members will drift further from understanding material issues New Zealanders care about. For most of us, prison abolitionism shouldn’t be in the Overton Window; it should be in the bin and violent criminals should be in prison.