… for why civilised societies which hope to remain civilised don’t lock violent children up with hardened criminals in the hope that they’ll magically reform into model citizens.

I’m talking about Bailey Junior Kurariki, whose latest offences, according to criminologist John Pratt, are a sign he has become institutionalised. Of course, his victim’s mother doesn’t think so, and neither do the usual reactionaries. The other lot aren’t all that much better. But perhaps that’s to be expected: when the only tool your populist justice positioning allows you to wield is a hammer, even a screwed-up 12 year-old kid looks like a nail to be smacked down as hard as possible.

L

There has been much wailing and gnashing of teeth over Dame Sian Elias’ remarks about the prison muster. Nevertheless, this is what Chief Justices (and their equivalents elsewhere) do from time to time – make pronouncements about the law and the state of the justice system, which carry no policy mandate but tend to get people talking.

I would note that the speech was much broader and more considered than ‘let the prisoners go free’ as it has been dramatised. But that Dame Sian has made a pronouncement so far out of step with government policy and public consciousness demonstrates either a remarkable sense of personal responsibility for the justice system or a desire to legislate from the bench.

There are three ways to slice it:

1. The judiciary is right to involve itself in this sort of thing and you agree with the position taken
2. The judiciary is right to involve itself in this sort of thing and you disagree with the position taken
3. The judiciary is wrong to involve itself in this sort of thing, and should stay the hell out of wider matters of justice regardless

I’m the first, with Toad and most commenters on Eddie’s post on The Standard. Labour Justice spokesperson Lianne Dalziel is too. In another case I might be the second. Danyl Mclauchlan seems to be either in the first or the second; Idiot/Savant and Bomber are clearly the first; Madeleine Flannagan, herself a lawyer, seems somewhat grudgingly to be in the second camp. Peter Cresswell definitely is.

But it’s tricky; the third is a cover for the second. I think Simon Power and Garth McVicar (along with DPF and some stalwarts of the KBR hang’em-flog’em brigade) are taking the third position for rhetorical purposes when, if they were honest, they’d be defending the right of the judiciary to participate in NZ’s discourse of criminal justice but disagreeing with Dame Sian’s argument in this case – the second position. Dean Knight points out that, when it suits, the government does actually consider the judiciary’s views as integral to justice policy.

If the particulars of the Chief Justice’s speech had been different, I reckon they’d be singing from a songsheet other than the one which reads ‘butt out, you lily-livered liberal panty-waist’. Perhaps the one which reads ‘I disagree with your position but, as the head of NZ’s judiciary, you are entitled to take it’.

The flipside, I suppose, is whether those of us who agree with Dame Sian’s general position today would be supportive of her right to take it if we disagreed. We should be; all of us.

Edit: Andrew Geddis is in the first position; Stephen Franks is in the second.

L

Somewhere in all the tough-on-crime rhetoric we seem to have missed out the step where we talk about what prisons are actually for. Do we have prisons to keep us safe, to rehabilitate, to deter, or to punish?

In theory we have them to keep us safe, no more no less. In practice some victims of crime and some onlookers want vengeance. I believe they have no right to vengeance, they have a right to have things put as right as possible (recognising that many things cannot be put right), and they have a right to be safe; but there is no right to punish, no right to inflict pain for that selfish purpose.

So why should prisons be any different? They should serve the purpose only of protecting us and only as a last resort because simply by incarcerating someone we do huge damage to them and those around them.

If we used prisons only when absolutely necessary to to keep us safe

1. Far fewer people would be locked up – only those that we had no other way of keeping us safe from.
2. There would be minimal restrictions on those people – if the community will be safe if the person has a TV, they should be able to have a TV, if the community will be safe if they see their children in a friendly inviting environment with toys three afternoons a week, then they should be able to do that. The restrictions we place should be only those that are needed to keep us safe.

Yet we have many prisons full to bursting with people who would do no damage is set free, or who we could be kept safe from in other ways. The people in those prisons (and their families) suffer restrictions which are totally unnecessary.

We have a prison system based on vengeance and punishment, is that who we want to be?

[I have struggled with this post and rewritten it several times, the word "prison" bothers me. I believe that what we should have, for the handful of people who we can't be safe from without some kind of restraint, is so unlike our current prisons that I don't know what to call them. 

I thoroughly recommend Maia's posts about prisons at Capitalism Bad; Tree Pretty, she says it so much better than me. All I know how to say is that we have no right to seek revenge]