Hard News by Russell Brown

Houston, we have a problem ...

I was with the kids at Incredible Science on Monday morning, thus missing Linda Clark's interview with National leader Don Brash about his party's new law and order pitch, but someone has kindly sent me a transcript. Wow. Interesting.

Brash comes across quite oddly in the interview; he remembers his message well enough - playing down costs, insisting there won't be any problem building new prisons once the Resource Management Act is amended to curb the public's right to object, speaking fondly of "welfare reform", invoking the familiar, dread names - and even declares, although it's the first he's heard of it, his willingness to de-ratify a UN convention to turn his "hard labour" blurt ("This is not a policy we've actually worked through at this stage") into reality. But off-script, his affinity with his topic seems almost non-existent ("I can't quote any international experience, Linda. This is not my particular territory …").

The key is that Clark is admirably briefed; well enough to talk Brash through what the 2002 Sentencing Act actually says, for example - you don't get that on the telly. I won't quote much of it here, but this bit is interesting:

Brash: But Linda, we have one of the worst crime records in the developed world.

Clark: Well, that's interesting. See, that's what you said in your speech yesterday. You said arguably we've got one of the highest crime rates in the developed world.

Brash: Absolutely.

Clark: Well, this morning we get out the seventh United Nations survey on crime trends - and we haven't. I'm looking at a comparison of New Zealand, Australia, Canada, England and Wales, South Africa and the USA. In homicide, rape and robbery, which I think we all agree are the three crimes which would by anyone's account be the kind of criminals you would imagine we'd want to be focusing on, we'd want to be locking up, New Zealand doesn't have the highest rate. Per 100,000 population New Zealand on homicides; 1.17, Australia is 1.57, Canada 1.59, England 1.61, South Africa 51.3, USA 4.5. We have the lowest homicide rate. Go to rape. New Zealand 22.4, Australia 81.4, Canada 78.08, England 16.23. They have a lower rate. South Africa is higher, USA is higher. We don't have the highest ...

Brash: Linda, I quoted ... My source for my statement in my speech ... I haven't got that source in front of me at the moment, but on the basis of that source which I gave in my speech, we have one of the highest crime rates in the developed world. I mean that's the basis on which I made the statement.

Clark: Well, your source was the United Kingdom Home Office statistical bulletin of the year 2000.

Brash: Okay. What's wrong with that?

Presenter: Well I'm just... Well, nothing I guess, but I'm just quoting you the UN survey on crime and it says completely the opposite.

Nice touch: knowing what Brash was quoting in his speech when he didn't. Later, he cites New York's experience as an example of circuit-breaking in addressing crime and Clark tells him that New York itself is now suffering a crime wave. "I was not aware of that frankly," he says.

Fair enough - I wasn't either. Indeed, according to the reported crime rates for 2003, New York City remains a success story - reported crime there actually fell last year, as part of trend put down to responsive policing more than get-tough sentencing. Even here, we have to be a little careful - there have been reports recently of police corruption and officers fudging the reporting of crime statistics to make results look better.

This Christian Science Monitor story from January looks at the 2003 numbers, notes a slight decline in overall crime nationally and extends credit to New York. But it also makes some alarming observations about some of prison-packing states.

Take Texas, the poster child for sentencing escalation and parole withdrawal, and subject of reports like this enthusiastic (but oddly selective, given that the only serious comparison made is with California) effort from the National Centre for Policy Analysis. Great stuff. Except that crime soared 50% in Dallas last year. In Arizona, the state with the highest incarceration rate in the western US, crime was up 65%.

The picture isn't always clear. In many smaller US cities, violent crime is rising, sometimes dramatically - and the causes seem to be manifold: from the fact that smaller centres have failed to adopt proactive policing methods employed in places like New York, to the belief that criminal elements have been shooed out of the big cities and taken root in the heartland, and even the unintended consequences of zero-tolerance policing itself.

Meanwhile, California is releasing early about 40,000 prisoners a month because nobody wants to pay the bill for its sentencing laws. Many of them are being released after having served as little as 10% of their sentences.

Most are non-violent - burglars, thieves and drunk drivers - but this in itself is a serious problem. There is better evidence that certainty of punishment, rather than severity of punishment, is a deterrent to crime. But it looks like the draconian terms, mandatory minimum sentences and gimmick laws introduced in the 1990s, have filled the prisons - and dangerously undermined certainty of punishment for minor offenders in California.

Texas had a similar capacity problem in 2001 - and simply tipped out thousands of inmates to ease overcrowding. Forty eight per cent of them re-offended. This year, Virginia is struggling to find the money to run its prison service; the legislature in Michigan is considering changing sentencing guidelines because eight of its 10 prisons are overcrowded; and Missouri is releasing non-violent felons with a retrospective law.

In Arizona, long mandatory minimum sentences, which give judges no choice in sentencing, have packed the jails with mostly non-violent offenders.

Many of them are victims of the profoundly unsuccessful war on drugs - as this story points out, a decade of garbage sentencing law, with a heavy focus on previous convictions, has created idiotic anomalies:

FAMM points out in its report that Arizona's sentencing laws also do not distinguish between addicts who sell a small amount of drugs to fund their habit and those who are drug "kingpins."

For example, a drug addict convicted of selling a gram of cocaine with a previous possession charge faces a minimum sentence of 4.5 years. A major drug dealer caught selling a kilo of cocaine faces a minimum sentence of three years.

And a 45-year-old crack addict caught three times with a small quantity of that drug got a 10-year sentence for his third offence - and never, at any point, any help with his problem. This, remember is also the state policy that procured a 65% increase in crime last year.

Also in this week's news, a 17-year-old reform to US federal sentencing guidelines - which allowed and even obliged judges to go beyond jury verdicts and evidence presented in court in considering sentences, and thus to impose sentences greater than the maximum for the offences found to have been committed - has been declared unconstitutional by the US Supreme Court. The detailed sentencing guidelines have been the subject of complaints for a long time from federal judges, who believe they restrict judicial discretion. It looks like a truly hideous mess:

"The impact of Blakely is monumental. It will create a tidal wave of litigation and has enormous implications for the potential destruction of the federal sentencing guidelines," said Joel Weiss, a Garden City lawyer and former state prosecutor who does criminal defense work in federal court. "This is saying that the system is so broke that it can't be fixed and let's put it on the curb for garbage."

Interestingly, the court's majority decision was written by a very conservative judge, Justice Antonin Scalia. And it is a stunning new report from the American Bar Association, commissioned and endorsed by a mildly conservative member of that same bench, Justice Anthony Kennedy, that may permanently alter tough-on-crime rhetoric. It finds that the keynote tough-on-crime policies, such as mandatory minimum sentences and no-parole programmes, while politically popular, have proven costly and counterproductive.

Kennedy, who was appointed by Ronald Reagan, said: "Society ought to ask itself how it's allocating its resources. The phrase 'tough on crime' should not be a substitute for moral reflection."

ABA president Dennis Archer has an op-ed on the report and its conclusions:

Let me be clear about one thing. These are not your typical criminal-coddling recommendations from out of touch advocacy groups. They are the product of hardheaded, realistic assessment of the problems in our criminal justice system. Put simply, our current approach to crime and punishment is not working: it locks up too many of the wrong people, has a disproportionate impact on minorities, and fails to make our communities safer because it poorly prepares prisoners to reenter society upon release. The need for reform is clear. We’ve spent more than 20 years getting tougher on crime. Now we need to get smarter.

We've done quite a lot of getting tough already in New Zealand. Between 1991 and 2000, the proportion of offences resulting in a custodial sentence, the length of sentences and the number of people in prison have all increased - radically, in some cases. Total crime fell last year, as it has every year since 1994, with the exception of 2002. White collar crime has risen about 40% in that time, but other dishonesty offences have fallen steadily. The performance in addressing sexual offences has to be counted a success on the figures, especially given the probability that such offences are far more likely to be reported than was once the case - whether that can best be put down to changes in sentencing law is open to question. Violent crime (10.3% of overall offences) has risen slightly lately after a dip and last year stood at 115 per 10,000 people, compared to 105 in 1996. Call it the P Blip. (I wouldn't call it a "crime wave" like Don Brash did. Fifty per cent year-on-year: now that's a crime wave. No Right Turn has a more detailed look at the actual numbers which is well worth reading.)

Sentencing law must adapt to society like any other, and of course there are instances where it is appropriate to increase sentences and curb parole. But I think there is a point of, at best, diminishing returns.

It appears that the custodians of the law in America have begun to cry "enough". It also appears that we would be pretty foolish to embrace that from which they are recoiling.

PS: Someone asked after studies showing a neutral or negative correlation between longer sentences and re-offending. I suspect you can find reports for all seasons on this - I wouldn't know who's actually right - but try this one from the alarmingly-named Public Safety and Emergency Preparedness Canada ("The 50 studies involved over 300,000 offenders. None of the analyses found imprisonment to reduce recidivism. The recidivism rate for offenders who were imprisoned as opposed to given a community sanction were similar. In addition, longer prison sentences were not associated with reduced recidivism. In fact, the opposite was found. Longer sentences were associated with a 3% increase in recidivism."), this charming little number from Germany about how defendants dealt with by judges and social workers deemed "liberal" were markedly less likely to re-offend, and a bunch of stuff in here, including a finding that probation was more effective for the repeat offenders to whom it is most often denied than it was for first time offenders!