Unjust to imprison us for crimes we haven’t yet committed

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MistrustThose

Once again National and Labour have succumbed to the “law and order” brigade enabling the passage of a Bill imprisoning people for crimes they might commit in the future.

The Public Safety (Public Protection Orders) Bill allows the Court to further imprison people who have finished their sentences because of an assessed risk of serious sexual or violent reoffending.

In a legal sense this goes beyond what we already what we already have for murderers and serious sex offenders who can be sentenced to life imprisonment or preventative detention. These prisoners know when they are first sentenced that whether they get out is dependent on their behavior in prison, or on release.

But the Public Safety (Public Protection Orders) Bill goes into new and difficult territory by in effect punishing a prisoner a second time when they didn’t qualify for life imprisonment or preventative detention at their first trial. The government, in its Regulatory Impact Statement on the Bill, admitted that this offended our Bill of Rights, by allowing for double jeopardy (in effect being punished a second time for the same offence) and having characteristics of arbitrary detention.

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As was pointed out in submissions critical of the Bill, if a prisoner has mental problems which make him or her seriously dangerous there are provisions in the Mental Health Act and the Intellectual Disability (Compulsory Care and Rehabilitation) Act to keep them in some form of detention.

Since 2004, there have also been “Extended Supervision Orders” imposing conditions and monitoring on some released offenders, commonly sex offenders, after their sentence (including the parole period) has ended. These Supervision Orders can apply for up to 10 years, but under an amendment bill also passed through Parliament last week such Orders can now be renewed indefinitely.

Like the Public Protection Orders these post-sentence Supervision Orders also present problems of double jeopardy – although of course a prisoner would rather be out on Supervision Order than kept in detention under one of the new Public Protection Orders.

In its submission opposing the latest Bill, the Law Society noted that “The Attorney-General’s report under s[ection] 7 of the Bill of Rights Act is the third such report finding the ESO [Extended Supervision Orders] regime to limit the fundamental rights and freedoms to an extent that is not justified in a free and democratic society.”

These two Bills are part of a creeping erosion of our rights in the justice system. Even as our crime rate drops, more and more former criminals will be monitored after their sentence is completed, or locked up for a further term, simply because they are judged likely to reoffend.

On the practical level these new provisions are a step backwards. It takes emphasis away from the rehabilitation of prisoners, which is currently seriously under-resourced. Prison official who haven’t put in the rehabilitation effort needed (or haven’t had the resources) will simply argue that, “Prisoner X hasn’t yet been properly rehabilitated and may commit another crime, so we recommend he be locked up for another term.” For his or her part, Prisoner X might have been thinking, “why should I throw myself into rehabilitation if could all be for nothing and they keep me in detention under a Public Protection Order after I finish my sentence.” This would apply particularly to prisoners who have been demonised in the media and there is huge pressure on the prison system not to release them.

Some rightly ask, “What about the victims?” My response is that if we weaken our rehabilitation system we end up with more crime and more victims.

I’m glad the Green Party opposed both the Public Safety (Public Protection Orders) Bill and the Parole Extended Supervisions Orders Amendment Bill, as it did back in 2004 when the original extended supervision orders bill passed through parliament – I was the Green MP speaking on the issue at the time.

A final point. There are a number of commentators (on the Right and Left) determined to portray the Greens as moving to the Centre, without evidence from the Green’s parliamentary voting record. Noting the Green’s current staunch opposition to two bad “law and order” bills, as well as their speaking and voting against the Countering Terrorist Fighters Bill – Labour collapsed on both Bills – can anyone really argue the Greens are going to the Centre?

19 COMMENTS

  1. “A final point. There are a number of commentators (on the Right and Left) determined to portray the Greens as moving to the Centre, without evidence from the Green’s parliamentary voting record.”

    As much as I appreciate Martyn columns, he’s been doing this a bit lately. I think he’s angry with the Green Party at the moment or just wants to give the party a kick up the pants for what he sees as its own good.

    There’s not a lot of people on the Left or Right who wont to give the Greens their due credit, as effectively the only real opposition to the government with just a handful of seats.

  2. Although this is one of the hardest aspects of the creeping erosions to our civil liberties to argue for dispassionately it is just as important. We have people to be made criminals for acts they might commit in the future under the latest Foreign Fighters bill, and then with this law change we have people who can effectively be punished twice, again because of something they might do.

    Regardless of how good the evaluations and systems in place to judge this chance of reoffending might be, they are in effect making educated guesses, and can get it wrong. This is why it is so important that this sort of presumptive punishment isn’t instituted.

    Lastly, although the people likely to be affected by these changes are probably going to be the worst sort of criminals, sex offenders and murderers, we must remember, that nobody ever, regardless of what horrors they have undertaken, loses their human rights.

    • “….we must remember, that nobody ever, regardless of what horrors they have undertaken, loses their human rights. ”

      Yet last year, on the 17th May, this government did eaxctly that to this group of people

      http://www.legislation.govt.nz/act/public/2013/0022/latest/whole.html

      ….and barely a voice raised in protest.

      These people had commited no crimes, had not impinged on the rights of others and had gone through the proper legal channels to have their right to choose who provided the care they had been assessed as needing. And won.

      The justification used by the government for the casual removal of the rights of these people was to limit liability and for fiscal responsibility.

      In other words, they were simply not prepared to spend any more taxpayer $$$ on the cripples or their families.

      Because they are not worth it.

      Yet….this Bill…the one being criticised….has the potential to increase the $$$ spent by the government on a group of people who have little or no respect for the rights of others.

      Yet, they are worth the dollars spent.

      Go figure.

  3. “Some rightly ask, “What about the victims?” My response is that if we weaken our rehabilitation system we end up with more crime and more victims. ”

    Is that all you have to say about victims, Keith?

    While the system sorts it shit out, puts in place real rehabilitation programmes, innocent members of the community surely have the right to have some protection from these miserable individuals.

    It is simply not acceptable to play Russian Roulette with the lives of the innocent.

    If in doubt….don’t let them out.

    Already you will have me politically slighlty to the right of Attila The Hun…not true and unfair.

    I have some experience in this field….albeit some years ago….and know that some offenders are able to turn their lives around and move back into the community safely.

    The reality is that some are simply beyond rehabilitation or redemption.

    These are the true sociopaths….they simply have no sympathy nor empathy for others…none.

    It will never be safe to release these people back into the community.

    I, for one, would not be able to live with my conscience had I advocated for release of a known high risk offender and that offender went on to commit further crimes against the innocent.

    Could you?

    • Victims must be at the forefront of any policy regarding criminality or insanity ( and I appreciate that criminals choose to be so, and the insane dont) but victims ( and likely victims) must always come first

      • So I say that victims must come first, and 7 voters agree with me but 2 retards do not! What sort of f***tards visit this site? Clearly of the 9 that voted, 7 people have common sense, and 2 are criminals.

        • Some basic maths for you, Dan, “+7 (from 9 votes)”
          means 8 people voted + and only one voted -.
          I have found it’s very easy to make a mistake when voting, you may find that one down vote was ham fisted rather than (in your words) a criminal. It’s also possible they were merely protesting your simplistic respondce to a complex issue.
          Knee Jerk Alert: I assure you I was not the one who gave you that minus/ thumb down vote.

    • Rosemary McDonald is right on target here, this Government drops funding for disabled and puts money on criminals instead.

      We are really in trouble here as this is clearly a human rights violation that we are involved with.

      Why didn’t this issue go to the UN Convention for a ruling on violations of our disabled citizens human rights?

  4. They do this on another extremely important issue already. CYF will take your child away on the strength of “what you WILL do in the future”. Even though I had no prior issues with them, on the word of others CYF used this very excuse to take my son from my care. He hanged himself at 15 because the home they put him in caused him serious emotional issues, this is what they said I would do, they said I would emotionally abuse him in the future. Ofcourse ‘the others’ I refer to are the infertile couple who desperately wanted a son. Amazing that a crystal ball is allowed into the courtroom.

  5. Yes they do loose their human rights and should. Criminals that cannot be rehabilitated, or will pose an unnecessary danger upon release, or people with serious mental health issues for example. Do the crime, then bad luck.

    • You really need to look into the recidivism rates of released prisoners at Bastoy prison. (Follow some of the external links).

      The sentence that is given at the time of sentencing should be the one that is commensurate with the crime. By indefinitely adding to this, we reduce the impetus for good rehabilitation programmes such as Bastoy.

      It does not surprise me that this kind of legislation is being passed, as the justice system goes further into private partnerships for prisons and prison care.

      Returns to shareholders will increase when prisoners are not rehabilitated and returned to prison, and when they are able to be kept there indefinitely.

      Returns to society will increase when prisoners undergo effective rehabilitation along with incarceration, mental health sufferers are able to access comprehensive care, and when we acknowledge the human rights of all humans.

      • The article about Bastoy prison states clearly that the inmates are all at the end of their sentences and have shown a definate commitment to rehabilitate and offend no more.

        So, of course they are going to respond positvely to an environment such as that.

        This Bill, I sincerely hope, (because one can never trust this government’s motives) is aimed at the few who will never be able to be released without grave fear of them seriously reoffending.

        The system needs to do much better with the first time offenders and first time inmates.

        For the life of me I have never understood the logic of allowing first time inmates to socialise with recidavists.

        Surely this is merely a school for crooks?

        I would have ’em in isolation from other prisoners( but not counsellors, teachers, social workers, medical staff.) Give them some serious solo reflecting time…time to think about their future without the pressures of having to staunch it out in an open prison system.

        And reduce their sentences considerably.

        Just a thought.

  6. Yep I agree the law is wrong. Better to look at punishment in different ways. The reality is the justice system and human rights are under attack in this country to take us away from a Scandinavian system of justice to a US and China mix of justice.

  7. Hi,

    Yeah this whole thing is an ill-conceived mess. But really it comes down to the age old problem of changing standards. When these offenders were jailed ten / twenty years ago, one standard for penalties that could be imposed was used. And now thanks to changes in the law a new harsher standard exists. And we want to retrospectively apply our new standard to those tried and convicted under the old standard. This is bad legislation in practice, and yes it does lead to a double jeopardy situation – ie the offender being repunished for the same offence.

    The question is what to do about it.

    In my view it’s unfair to change the rules half way through a prisoner’s sentence and then add to his punishment. And the question must be asked – if ten / twenty years ago this prisoner was so dangerous and so likely to never rehabilitate, why wasn’t he given a greater sentence at the time?

    It is even more wrong to simply release prisoners after they have served their time, knowing that they will likely reoffend and victimise people. Remember the justice system must serve many causes, and one of them is protecting people.

    It would seem then that the answer must be as it often is, one of compromise. We must protect innocent people without unduly removing the rights or repunishing offenders. My thought would be that some form of long term surveillance is the best form of compromise on this issue. The offender is not unduly punished by being watched while society may feel that they are being protected from him / her to some extent.

    Yes it will cost money, potentially enormous amounts of it, and it is not perfect. But as a system it seems to best walk the tightrope between public safety and individual rights.

    Cheers, Greg.

  8. I tend to agree with Dan, if criminals have no intentions to rehabilitate themselves, then they do the time without release back into the public because they themselves know they are going to reoffend without remorse.
    I also agree with Save NZ, the laws are being changed to the point of being rewritten to American laws, in theory, opening the doors for American administration to step in and convert NZ law to theirs.
    My suspicion is that all this recent pushing through of new laws by Key and National, is to sneakily lead to a connection of bringing in the likes of the TPPA, because they’re aware of public view and stand against what they’re doing, so they’re going ahead with it by using a smoke screen that will take effect regardless, all under their arrogant attitude of we create and you abide, no ifs buts whys or questioning of any nature, you will be ignored right or wrong.
    Yes, the laws do need to be changed, for the better, for the protection of the victims and the innocent, for the worst of the offenders who continuously choose to reoffend. Not for the benefit of politically financial reasons of unjustifiable nature.

  9. Now aint life a funny thing -as Bowie once sang,…and criminology even stranger.

    And taking on the ‘Young American ‘ theme, lets have a look at the type of law enforcers wild west frontier USA towns favoured. We have a mild example in Wild Bill Hickock,…a gambler, a drinker, a killer , a womanizer and a livestock thief…all done in such a way as it couldn’t be proven , still, he got the nomination for the gunman sheriff.

    And he was mild by comparison to a whole bunch of others back then. Just that the good folk of Abilene didn’t want to have to face the prospect of dying early so they picked someone who was kind of ok with all that.

    Now the point of this is this : if you want to be a bad bastard,…well..back in them days you took the risk and made damn sure you weren’t found out. Or if you were, – you better run with a gang of thugs and be in cahoots with the political forces of the day.

    Because they didn’t mess around /have any qualms or get squeamish about using the hangman’s noose, – no matter how hypocritical the law officials were.

    We like to think we’ve advanced somewhat since then,…but the fact is , bad bastards are alive because we as a society tolerate it because we like to think we have advanced. Fact is ..we haven’t. That and we’re squeamish.

    Mind you,..I’m glad we are squeamish. Something ugly about state sanctioned executions. Real ugly. That and you might kill someone who’s innocent. Fat lot of good saying ”oops!..sorry!!” then…

    And with the latest on the CIA reports…that just proves the point- we are no further advanced than the torture chambers of 16th century England.

    But the fact remains there are some pretty bad bastards who don’t give a rats shit about your life OR your rehabilitation. And that’s the facts.They’d happily kill you if it meant they could get away with it.

    Plenty of world dictators fall into that category.

    We even had a bunch of crims from the Victorian goldfields who sailed over and thought nothing of murdering 4-5 people on the West Coast gold fields for financial gain, – until it was their turn to swing from the gallows for their murders….then it was different story.

    But I’ve got to admit…its all pretty sordid. And repugnant. And proof of it is…the death penalty doesn’t seem to be much of a deterrent , either.

    As for the case of double jeopardy…that doesn’t seem right either….something pretty unfair about all that….however,…I think it takes a hell of a lot of wisdom, insight and good judgement to perceive a person convicted of serious crime is indeed rehabilitated.

    That s not even mentioning the situations where things go horribly wrong when certain individuals have been released…its just such a knife edge to walk in determining when people really have made a decision for the better to change. Some do,..and some never change.

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