Dogma or data? Why New Zealand sentencing reforms will irritate judges and clog the courts

The Luxon government certainly has little sense of irony.

Shortly after the introduction of the Parliamentary Bill, which sought to strengthen the fundamental constitutional principle of separation of powers, the Sentencing Reform (Amendment) Bill was introduced, which seeks to limit the state’s judicial power.

The aim is to keep more people in prison for longer. In its Regulatory Impact Statement, the Department of Justice estimates that 1,350 people will be added to the current prison population. The Department is also clear that most of the changes are unnecessary and are based on insufficient consultation, particularly with Māori.

The main change the bill introduces is that the reduction of prison sentences for mitigating circumstances will be limited to “40% of the sentence”, unless this would be “clearly unjust”.

Mitigating factors

To understand why this is a problem, we need to start with how the Sentencing Act 2002 works. Firstly, the seriousness of an offence provides a starting point. Because the maximum sentence applies to the worst example of the offence, the offences can be put on a scale.

Secondly, the judge takes into account aggravating factors, such as recidivism, malicious motives or the vulnerability of the victim. The new bill specifies several additional aggravating factors, but the ministry notes that these are already taken into account.

Finally, the judge looks at mitigating circumstances, such as youth, intellectual disability or mental illness, remorse and positive steps to address the cause of the offense.

One major reduction available is for a guilty plea. The bill would cap this at 25% – the Supreme Court ruled on this a number of years ago.

Sentencing reductions based on these factors will frequently exceed the general 40% limit proposed in the new law. For example, impulsive criminal behavior by a young adult with ADHD who was in child welfare for family abuse and who pleads guilty early would likely result in a significant reduction in sentence.

Also, an offence committed by someone who both admits to committing the offence, shows remorse and assists police would be eligible for significant reductions.

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‘Moral and financial failure’

New Zealand’s judiciary is not soft by world standards. Its prisoner rate – currently 181 per 100,000 people – ranks it 90th out of 223 jurisdictions.

This is well above Australia, England, Wales and Scotland, and double the rates in Northern Ireland, the Republic of Ireland and Canada. Given that Māori have long made up over 50% of the prison population, their incarceration rate is on a par with the US. Do we really want to make this worse?

When former Finance Minister Bill English noted that New Zealand’s high prison population represented a “moral and financial failure”, he asked the chief scientific adviser to gather the evidence.

The resulting 2018 report, Using Evidence to Build a Better Justice System, concluded that the prison population had grown because of “dogma, not data.”

Prisoners are seven times more likely than the general population to have a mental health or substance abuse problem. Ninety percent have a history of mental health or substance abuse, and 60% continue to suffer from it. Up to 70% have significant reading and writing difficulties.

The proposals for sentencing reform rest on the idea that people should take more personal responsibility. But they ignore the reality that most people in the system have a diminished capacity to do so. This seems more like dogma than data.

And since prisons train people in criminal practices and provide gangs with recruits, but fail to address the underlying causes of criminal behavior, it is a dogma that risks creating more victims.

A tense legal system

In addition, the criminal justice system is creaking, there are too few judges or courtrooms. Complainants, suspects and witnesses are already waiting too long for their trial.

Reduced sentences for guilty pleas and other mitigating measures are essential to prevent this from getting worse. Some of these factors only come to light at the sentencing hearing when pre-sentence reports (often including medical reports) are provided.

Also, the final preparation for a trial often leads to the Public Prosecution Service accepting a plea for a less serious offense. And the time spent waiting for a trial often means that a suspect has already served his sentence, or a large part of it.

If a judge feels compelled to impose a higher sentence because of the new amendments, defense attorneys will have to advise defendants accordingly. Inevitably, more people will decide to take their chances in a trial rather than plead guilty.

This means that more complainants will have to give evidence, some suspects will be acquitted and the criminal justice system will be more fragile.

Judges and rules

Judges will face some dissonance in the law. The Sentencing Act requires judges to impose the “least restrictive” sentence. But a sentence that is longer than appropriate does not meet that requirement.

A longer prison sentence than necessary is arguably arbitrary detention. But the New Zealand Bill of Rights Act requires judges to interpret other laws to prevent rights being violated, if possible, including the right not to be arbitrarily detained.

Furthermore, a fair trial must aim to obtain the appropriate punishment for the individual suspect.

Judges do not sign up to violate people’s rights. Nor do they like it when the executive branch of government uses its parliamentary majority to overstep the separation of powers. They will, quite rightly, do what they can to ensure individualized justice.

For example, they could set a sentence at the low end of the available range to achieve the same result, while appearing to adhere to the new 40% cap. Or they could simply decide that a rehabilitative sentence, invariably without imprisonment, is the better outcome.

Judges spend all their time dealing with rules. You can expect them to be creative in finding ways to get around restrictions that should not be imposed on them.