I am surprised by the jail sentences handed down to Tame Iti and Te Rangikaiwhiria Kemara in the Urewera 4 case. I had expected substantial fines and at most community service sentences for all of the defendants. The same day the Urewera 4 were sentenced a doctor was fined $1000 for firing a crossbow at a tree 3 meters from a tent of sleeping children at a DOC camp site, so it seemed reasonable to me that people who discharged firearms in the vicinity of no one other than themselves would receive sentences in line with the good doctor’s. But, as it turns out, the Judge in the Urewera 4 case had a different line of reasoning, and it is worrisome.

Even though the Urewera 4 were not found guilty on criminal conspiracy charges, the judge who sentenced them, Rodney Hansen, repeatedly referred to them as if they had been. He spoke of an armed militia with leaders and followers, and he mentioned molotov cocktails–the possession and use of which they were not convicted of–as proof of something sinister going on the outskirts of Ruatoki. But the sentences were supposed to be for violations of the Firearms Act alone–six in the case of Iti, Kemara and Emily Bailey and five in the case of Urs Singer. So why did the judge bring in a line of reasoning at sentencing that is more appropriate to a guilty verdict of criminal conspiracy, and why the relatively harsh penalties for violations that, quite frankly, are fairly routine in some sectors of New Zealand society? In fact, the sentences do not distinguish between the types of firearms used by different individuals, so that those who handled a sawn off shotgun were treated the same as those who handled a bolt action .22. Bringing up the subject of molotovs, militias, purported bombing (but not bus-flinging) plans at sentences for Firearms Act violations is irrelevant and prejudicial.

Lew and I have written previously at some length about the discrepancy between this prosecution and the seemingly blind eye the Police and Courts cast on very similar bush antics by right-wing extremists who make no secret of their hatred for assorted ethnic and religious groups and who have proven histories of violence against those they hate. I shall therefore not repeat what we have said. But what I can say is that these sentences confirm to me that this Crown prosecution was about punishment and deterrence, not justice. One way or another the Crown was going to extract its pound of flesh from at least some of the original defendants, a process that not only involved lengthy delays in providing the defendants with their day in court (by over four years) and the admission of illegally obtained evidence,  but which also is designed to serve as a warning to others who might be of similar ideological persuasion and direct action mindset. As I have said before, the process was the punishment for the original 18, and these sentences are the final act in that process. It has not been fair, it has not been just, and other than assuage the primordial fears of conservative Pakeha such as Louis Crimp, the National Front and the closet Klansmen that inhabit the right-wing blogosphere, it does nothing to advance respect for the law and the concept of equal treatment for all.

Given that the sentences for Iti and Kemara appear to be disproportionate to the crimes committed, and that the judge’s reasoning was at least in part based upon tangentials that should not have been admitted at the sentencing phase, I would hope that they will be appealed and eventually reversed. Otherwise the conclusion to Operation 8 looks like another case of Pakeha utu on people who dare speak truth to power in unconventional, theatrical and ultimately silly ways.

I agree with Kelvin Davis’ criticism of the eagerness of certain Māori groups to be involved in owning and operating the new private prison, and I think it’s a strong and principled argument.

My clear preference is for no private prisons. But if there are going to be private prisons (and it looks like a certainty), then all else being equal, wouldn’t it be better if they were (part-)run by Māori, with a kaupapa Māori focus (on rehabilitation, restorative justice, etc)? As I remarked, and as Eddie C sketched in slightly more detail in comments to my last post on the topic, the incentives are screwy for private prisons and rehabilitation, it’s hard to measure and hard to manage and as a consequence rehabilitation is even less effective than usual. But I can’t help but think that attaching a cultural incentive — the knowledge that one’s whanaunga are actually or potentially involved — might change that picture and take a few of the harsh edges off the “business of punishment” model employed by mainstram private corrections agencies.

L

Good practice is to build new power generation near load. And prison town syndrome is pretty well-known. So what South Auckland really needs is New Zealand’s first public-private-partnership prison, right?

L

Paula Bennett’s damn-the-torpedoes attitude toward the Attorney-General’s advice regarding the Bill of Rights Act — and Idiot/Savant’s observation that this is just the latest bit of policy in breach of that act — has me wondering. What happens if there are torpedoes?

What happens when a widower has his benefit cut by WINZ, having refused a work test which a woman in identical circumstances would not be required to undergo? Surely he has recourse to sue WINZ for that breach. If that’s so, and it seems like in a civil society governed by the rule of law it should be so, the government will surely open themselves up to considerable legal liability by implementing and enforcing this sort of policy (quite apart from the symbolic side of such cases getting hauled through the courts, and so on).

Can some of you lawyerin’ types out there in the internets give me a pub-argument explanation of the issues in this situation?

L

The “Waihopai 3″ have been acquitted. Their act of civil disobedience, which resulted in damage to one of the domes covering eavesdropping equipment at the Echelon Signals Intelligence (SIGINT) gathering station near Blenheim, was deemed by a jury of their peers to be justified because of their sincerely held beliefs that the listening post contributed to human suffering on a world scale.

This is a remarkable verdict. The Plowshares group clearly trespassed and clearly did damage to the dome (they cut through both a perimeter fence and then the dome in order to access its interior). But their motives clearly outweighed, at least in the minds of the jury, the criminality of their actions (the charge of burglary against them was a grave mistake on the part of the Crown). The defendants pleaded not guilty to the charges of trespass, burglary and criminal damage and left the court as free men and as an inspiration to other direct action activists discontented with the status quo. One wonders if this  decision will establish not only a legal precedent but also encourage others to follow suit in pursuit of anti-status quo objectives.

I must confess to being at a loss for an explanation. As I wrote in “A Brief Comment on Spy Bases and Civil Disobedience” over at Scoop, (http://www.scoop.co.nz/stories/HL0805/S00039.htm), active acts of civil disobedience involving direct action (as opposed to the passive act school of civil disobedience exemplified by Ghandi and followed by his adherents after he was murdered) are most often premised on the perpetrators willingly understanding that their actions are in violation of conventional law, and that their actions will be punished accordingly. More often than not they plead guilty in order to make their political case at sentencing, something that spares the taxpayer the court costs of defending the charges while at the same time providing a courtroom soapbox for dissemination of their claims. Seriously committed activists often/sometimes (depending who is talking) never reach trial because they die trying. None of that occurred in this case.

I am sympathetic to the Plowshares cause although I seriously disagree with their view of the Echelon network. I applaud their willingness to stand up for their beliefs, and their use of unconventional, yet basically peaceful means to make their case. But for the life of me I cannot understand why they were acquitted, and I fear that the verdict has opened a Pandoras Box of unintended and perhaps dangerous consequences. But then again, we are talking about activities that occurred in New Zealand, although to be honest, if this action merited acquittal, what does that say about the case against the Urewera 18, who did not trespass, damage or burglarise anything?

Imagine what the outcome would have been had the Plowshares engaged their direct action in the US, UK or Australia. I reckon the verdict would have been different, and the sentences severe.

… 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]