Why National Is Really Looking To Sanctify Illegal Imprisonment And Deny Compensation

One of the fundamental instincts of the political conservative is to Punish. To ‘Protect’. To levy the superior powers of the state as a mechanism with which to push ‘down and out’ against perceived ‘undesirables’ who may be living in our society’s midst.

In ages past, the demographic targets for this form of umbrage have been many and multifarious. These days, it’s no longer polite nor acceptable to go after some of them (although beneficiaries and the working poor appear to remain popular objects of scorn in some circles).

But one of the groups which apparently remains absolutely A-OK for right-wing opinion leaders to come down on like a tonne of bricks in pursuit of positive returns at the polls … is criminals.

I guess it’s not hard to see why. Criminals – and those convicted of crimes serious enough to warrant a term of imprisonment in particular – are generally regarded as harming others. As having forfeited some measure of their intrinsic human worth and dignity by transgressing upon the civic norms to which each and all of the rest of us nominally subscribe. They are, quite literally in the popular imagination, the angry threatening figure out there in the dark of the night. The drunk whose aggressive attentions we flailingly attempt to recoil from when we see them coming towards us. An inexorable drain upon the public purse through both the willful damage they cause, and the expensive efforts which We, The People must undertake in order to find, apprehend, vigorously prosecute and punish them.

At least, in the frenetic Conservative’s irritation-fuelled imagination. In real life, some criminals are exactly as monstrous as that outlined above … and others, well, aren’t. Cannabis-smokers and small-time drug-dealers are probably a pretty good example of these only semi-reprehensible reprobates. Their behavior isn’t intrinsically objectionable, and I’m even aware of a recent case in New Zealand law in which a Judge referred to the latter as being a quite literally “victimless crime”.

But regardless of how you feel about crime, criminals or politicians … it is inarguable that there is strong necessity for there to be both strictures and restraints upon the coercive powers of the state. Where there is no legal basis to lock somebody up, they should not be allowed to be locked up. Where the state has considerably erred in its usage of powers to condemn, indemnify and incarcerate, there ought to be tangible action to put things ‘back into balance’ – often in the form of restitution. And where the state has been caught out red-handed in wrongfully imprisoning somebody or otherwise doing injurious harm to their person or reputation (for such, a term of incarceration almost assuredly is) … then it really should think VERY long and hard before considering the utter affront to the Rule of Law implicit in casting retroactive legislation to post-facto legalize its previously wrongful conduct.

Given that all of this is the ‘right thing to do’, it should probably come as absolutely no surprise to just about anyone that Judith Collins – the Corrections Minister who memorably once suggested prison-rape as an active deterrence to future offending – appears to want to do just about all the opposite.

As many are now aware, a recent New Zealand Supreme Court decision has clarified that we’ve been illegally keeping New Zealanders – potentially somewhere up above five hundred of us – behind bars illegally. The Government, caught somewhat flat-footed by the court’s judgement, appears to be moving to block compensation for those wrongfully imprisoned – and, potentially more worryingly, change the law to retroactively keep people in prison.

This is wrong. This is so obviously wrong that we could dress it up in a rosette and run it as an ACT Party candidate.

But what’s behind it? It’s exceedingly tempting to just and simply characterize the Nats – and the insouciant Collins in particular – as a nasty pack of work, out to derive some considerable pleasure from ruining and coralling the lives of others. Yet there’s almost certainly more going on here. 

We’ve seen this sort of behavior before – frequently enough, in fact, to start drawing out a bit of a pattern. 

Remember when David Bain was released? Then, compensation was mooted. A report was ordered into the subject in order to ascertain whether this was appropriate. In the view of the expert member of the Canadian judiciary whom the government had headhunted in order to produce the judgement, it was. While Bain hadn’t proven his innocence – he HAD produced sufficient ‘reasonable doubt’ over his conviction to effectively remove his guilt. The state, therefore, had had no basis for keeping him locked up – and owed him some measure of compensation for putting his life into cryo-sleep in the interim behind bars. 

Judith Collins disagreed. And after excoriating the Judge responsible for this fair and accurate determination (allegedly after wasting yet more taxpayers’ money to fly him over here from Egypt in order to give him a verbal dressing down personally), a new report was ordered by another luminal figure of the legal fraternity with the specific objective of producing a settlement – and a dollar figure – vastly more amenable to the Crown’s (by which I mean the Government’s) political interests. 

And that’s why David Bain is, today, walking home with zero compensation for his time spent behind bars (albeit with several hundred thousand dollars recompense for his legal fees). 

A regrettably similar pattern played out with Teina Pora’s bid for compensation. In this instance, there was no doubt. Pora had been found innocent, and was entitled to compensation. But there WAS some measure of quibbling to be had as to the precise level of coin which he got. Due to accident or malignancy, the relevant legal provisions did not allow for an incorporation of inflation into the dollar amount Mr Pora was entitled to. He therefore wound up somewhere in the area of $1.5 million dollars short. A not inconsiderable amount of money. 

Various politicians, commentators and activisty-types pressed for the Government to use its discretion, and go beyond the strict letter of the law in order to make full restitution to a man who’d been so considerably wronged by the system. 

Those pleas fell on deaf ears; and I can’t help but find myself wondering whether, if it were a matter for completely open Governmental discretion, whether Pora would have found himself given any compensation whatsoever at all.

All things considered, the Government’s attitudes towards both criminals – and, more worryingly, those who were illegally locked up alongside them – appears to be categorically and comprehensively mean-spirited. 

This should come as no surprise. In an age wherein National are fairly desperate to direct attention away from their chronic under-funding of the police, and the rising tide of crime which accompanies seriously flawed economic mismanagement … how better to placate the baying mob of its corner of the electorate, than by being seen to kick downwards against nominal ‘criminals’. 

There is always a ‘fiscal argument’ raised in cases such as these against compensation being paid. This is wrong-headed. Justice for the citizen ought trump petty economic considerations where possible – and, in any case, the disincentive for the state of having to pay out when it wrongfully imprisons somebody is a useful tool. Besides, considering this is the same group of politicians who felt quite comfortable wasting twenty six million dollars on a flag-change referendum nobody wanted, it’s not like they’re exactly concerned with being model bastions of economic frugality elsewhere, anyway. 

Thus, I maintain that these economic ‘justifications’ against compensation are merely a front. The Government is concerned with how it would look to some of its hard-on-law-and-order supporters if it were seen to make rightful restitution to victims of the justice system’s ongoing legislative incompetence. 

I’m also not entirely sure that the public safety justifications raised by Collins in response to this issue are any more factually viable. Preventative detention is, indeed, a sentence we mete out to some of the worst offenders – serial and compulsive sex offenders and the like. It thus does have some precedent. But that is not what we are talking about here. Instead, Collins appears to be suggesting that locking up offenders – illegally – for longer will lead to a reduction in crime (provided, one supposes, that the crime is not committed behind bars – a possibility she also acknowledges). 

It’s a pretty worrying stance for a politician to take – justifying illegitimate incarcerations in the nebulous pursuit of public safety. And a more than somewhat questionable one in practice. The longer one spends in prison, the greater the risk of an inmate being scarred and socialized – brutalized – towards an enduring life of crime. 

But, of course, National doesn’t care about that. 

Instead, they’re only concerned with the “optics” of the situation – and there, for an uncomfortably large share of their voters, “cheapness” and “meanness” as applies criminal justice policy and the rights of those incarcerated, must apparently win out every time. 

It is a scary thing indeed to be rendered subject to the coercive power of the state. It is even scarier to be held so wrongfully. And, on top of this, to see one’s rights and restitution treated as political footballs to be kicked out of play rather than meaningful concerns to be properly examined and taken seriously. 

So frankly, to put it bluntly, it’s absolutely terrifying that National are gearing up to legitimate all of those things through retroactively protecting wrongful imprisonment, and denying those affected compensation. 

We deserve better.