Justice must be impersonal
25th July 2009

I have been disappointed but unsurprised by reactions to last week’s comments from Chief Justice Sian Elias criticising the direction of justice and penal policies in New Zealand. Elias argued, not for the first time, that locking prisoners up for longer does not make our community safer. She has been rounded on by editorial writers, pulled up by politicians and dismissed by most opinion-makers as being out of touch with the times.

I am constantly surprised that we don’t see the obvious connection between our increasingly punitive sentencing laws and the rise of violent crime. For the past twenty years successive governments have been ratcheting up prison sentences to the point where we now have 9,000 people locked up - the second highest rate of imprisonment in the developed world. The present government happily predicts that its ‘get tougher’ intentions will see a further 37% increase in prison population by 2017.

Why are we content to accept this outcome and so abrupt in our dismissal of the Chief Justice’s views? Why are we so attached to the idea that locking prisoners up for longer will reduce crime in our community when that policy has failed for twenty years?

The comment that has caused greatest outrage is Elias’s assertion that emphasising the rights of victims traumatises them and damages the impartiality of the justice system. The rights of victims are a sacred cow of those who would make our justice system much more punitive. The wildly misnamed Sensible Sentencing Trust builds most of its argument around tales of victims who feel they have been denied justice.

Elias is warning us that placing the victim further into the process is a “repersonalisation of the justice system.” In order to understand that this may not be a desirable thing we need to imagine what life was like before we had a justice system.

A few hundred years ago justice in most societies was rough. If my neighbour stole and ate my pig I could either accept it as the way things were or I could gather up a bit of local muscle and deliver justice to whatever degree I thought appropriate. I justified my response with the bible (‘an eye for an eye’) or by reference to an older law of the jungle (‘survival of the most aggressive’). Either way it was strictly punitive – I aimed to wreak as much havoc upon my enemies as I could get away with.

Unsurprisingly this behaviour came to be seen as not a good way to run a society. It made criminals of all and, in communities that placed a high value on honour (which includes, by the way, communities that many New Zealanders trace their roots back to) it caused prolonged and violent conflict.

Eventually we hit upon a wiser way to manage justice. We agreed that if I felt I had been wronged I could complain to a neutral party – the state. I agreed to surrender to the state my right to personal vengeance. In effect the state became the aggrieved party, the state accepted ownership of the crime and responsibility for justice.

But the system only works as long as we have confidence in it and today confidence in state justice is dwindling. Why? People who advocate getting tougher on criminals will say they’ve lost confidence because the justice system fails to reduce crime. They are wrong. Rising crime is not caused by the justice system any more than rising heart disease is caused by the hospital system.

Rising crime is caused by the breakdown of the cohesive forces that bound us together as a society and allowed us to live tolerably with each other. The problem is the rise of individualism and, to use Chief Justice Elias’s word, the ‘repersonalisation’ of almost everything.

If I believe, as today many of us do, that the state exists to help me maximise my individual needs and desires, I am more likely to clamour for the state to get tough when those needs and desires have been impaired by the actions of others. When I act largely from self-interest I allow emotion to replace reason and vengeance to overshadow justice.

Most people who support victims rights and tougher sentencing believe they do so in the interests of society. It is regrettable that they are actually serving the interests of individualism and their actions are contributing to the further erosion of the society we all wish to enjoy.