Justice - a model policy
It was my privilege some time ago to be involved in the writing of the Justice Policy of a NZ political party. There were constraints that we had to work within because the party already had a Justice Policy, and the approach taken to certain issues had already been decided. Never the less we were generously given a pretty free hand to structure and write, or rewrite, as we saw fit. The following is some of the result.
It is the Preamble that is of particular importance as it lays out the broad, and in may ways unique approach that was taken. The Preamble is universally applicable and was my primary concern. It sets the underlying philosophy for any particular policy, and in the light of which any policy should be decided.
I have included some of the particular policies that related more directly to the Preamble and its universal scope, and deleted others which were more local and administrative in character.
A model Justice Policy
A free, productive, and prosperous society requires its citizens to have respect for the person and property of others, and be upholders of laws that protect individual and property rights.
Central governments have the role of making, administering, and enforcing laws which provide a just and safe society for all its citizens, and for defending the nation against internal and external aggressors.
Crimes are acts committed in opposition to individual, corporate, and property rights, and thus attack the social fabric of the community.
Crime is always against:
- A particular victim or victims:
- Individual persons,
- Corporate entities, e.g. incorporated societies, trusts, churches, etc,
- Commercial entities, e.g. companies and their shareholders, sole traders, etc
- Local government, e.g. through non-payment of rates, vandalism against public property, etc.
- Central government e.g. through tax fraud, contempt of court, assaults against police, etc.
And directly affects:
- the victims’ families, businesses, etc.
And indirectly affects:
- the local community
- the national community.
The xxxxxx Party Justice Policy proposes to achieve the above objectives of a just and safe society, by means of four strategic priorities. In order of importance these priorities are:
Priority 1: Victim Restoration
Priority 2: Deterrence of crime
Priority 3: Containment of dangerous offenders
Priority 4: Rehabilitation of offenders
- Victim Restoration –
- For property, and monetary crimes – by requiring offenders to make full monetary restitution for all the victims costs and losses, plus meaningful monetary allowance for psychological distress caused by the offence.
- For violent crimes – by requiring offenders to pay monetary compensation to the victim/s or their families for all injuries and trauma sustained, and for the costs of any medical treatment required.
- Deterrence of crime –
- By making the cost of committing crime so high (full restitution to victims – as above, plus incarceration for violent crime) that most people will not consider it to be worth the risk.
- By actively discouraging through legislation and/or community disapproval, behavior, or activities, or the manufacture and distribution of products e.g. narcotics, that encourage and/or promote crime.
- By legitimizing reasonable self-defense by citizens who resist criminal activity against their person or property.
- By supporting citizens as ‘police on the spot’ in their attempts to thwart crime, or detain offenders until law enforcement agents arrive.
- Containment of dangerous offenders –
- For serious offences that require imprisonment, prison terms should reflect the seriousness of the crime, e.g. a life sentence should mean that the offender is incarcerated for the term of his natural life.
- Rehabilitation of offenders –
- By making penalties fit the crime and directly relate to it, the offender will be assisted to recognize that the penalty (i.e. the restitution payment) is for restoring the damage they have done to their victim/s. This contrasts with the current system where penalties imposed by an impersonal system seldom have any connection to the victims of the crime.
- By making all prisons places of productive enterprise where offenders work and earn income so as to pay restitution to their victims, offenders have the opportunity at the same time to be rehabilitated by learning to be responsible, productive citizens.
Although they may not be aware of it at the time, people who commit crimes thereby forfeit rights and also incur liabilities towards their victim/s.
This policy is unashamedly focused clearly on the restoration of victims, something which has sadly been neglected by New Zealand’s justice system for far too long.
Specific policies with comments.
New Zealand citizens should have the legal right to defend their person and property.
This would introduce a major deterrent to crime as the ‘on the spot stakes’ in committing crime would be raised significantly. At the moment a criminal knows with a high degree of certainty that those they intend to victimise have no real defence against their predation. They know police will not be anywhere near at hand to deter the criminal activity and unlikely to be in attendance at the crime scene for quite some time, especially if the offence occurs at a distance from a police station. Reasonable defence of ones own person or property should be able to be conducted without any fear of prosecution.
Courts and Judiciary:
- Role of the Courts and Judges under Victim Restoration.
As at present, the role of the Courts and Judges will be to determine that a crime has occurred, to determine the guilt or innocence of those charged, to convict, and to pass sentence on the guilty.
Determining the restitution part of any sentencing should however not be in the hands of the Judge, but rather that of an independent judicial body. It is suggested such a body should be established to determine the costs and losses etc, incurred by victims so as to determine the required mandatory restitution. This amount would be the sentence, except for cases where offenders are deemed to be a danger to the community and so have in addition to the mandatory restitution, a prison term also imposed.
If any discretion is to be shown in regard to reducing the mandatory restitution, it can only be exercised by the victim. No one else stands in their place unless so designated by them.
- Ensure there are powers for Judges to pursue truth.
The goal of the justice system should be to reveal truth. A criminal should not be allowed to get away with a crime through hiring a lawyer with ability to abuse or exploit a loop-hole in the law, or the short comings of a defence attorney with an overloaded schedule. Nor should criminals be able to evade penalties on the basis of ‘technicalities’.
If common sense deems it feasible to further investigate a situation, a Judge should have the means to do so.
Judges should also have the power to award against the Crown the costs of a person charged and found not guilty. Otherwise the justice system is creating victims of those being wrongly accused.
- Establishment of night Courts.
A huge backlog of cases currently exists that could be heard and processed by night Courts. Criminals need to be confronted with efficient and rapid convictions for their behaviour rather than spending months or years going through the revolving door, being charged, then released on bail thus creating the possibility for re-offending before they are sentenced. Also the lives of the innocent are put on hold before they are acquitted of false charges. Night courts would also avoid the disruptions to work and other commitments of those involved.
- Victim Restoration should be the focus of all sentencing. Additions to this focus should be imprisonment for those who are a physical threat to the community, and/or who default on restitution payments.
Victim Restoration would be achieved through full mandatory restitution being paid for all costs and losses incurred by the victim, and for significant monetary compensation being made for psychological distress that results from the offence. Such additional compensation for psychological distress could perhaps be a fixed percentage of all costs and losses incurred, such as 25 or 50%.
Restitution payment replaces imprisonment for the majority of offences. The current imprisonment regime costs the taxpayer around $90,000 per person per year, removes the capacity of the offender to recompense the victim, and adds costs to the taxpayer if the offender’s family requires welfare.
In respect of those who default on restitution payments, a degree of containment should be imposed. The degree of containment should be in proportion to the seriousness of the default, with full imprisonment for persistent defaulters.
- Restitution and Insurance
If a victim is eligible to receive a benefit from property, or medical, or accident compensation insurance in respect of the offence against them, then insurance should be paid out to the victim in the usual way. If this happens, it would mean the victim has been recompensed for that part of their loss. However the penalty on the criminal will as usual be that determined on the basis of all the victims costs, losses, and distress (as above). Only that part of the restitution payment already covered by insurance will now go to the insurance company to compensate for payments they have already made. This should lower the costs of insurance for everyone.
- Encouragement to truth telling and guilty pleas by offenders.
To encourage truth telling and guilty pleas by offenders: If an offender pleads innocent but is found to be guilty, significant additions should be made to the penalty. These could be additions to the restitution payments made to victims, and also extra charges to cover increase court time etc. Perhaps restitution costs could doubled in such cases. These additions to a penalty would be a deterrent to lying about the offence. Guilty pleas would mean significantly overall lower court and police costs.
- No home detention and no parole for those convicted of violent crimes.
Society should not risk the re-offending of those who have committed heinous crimes. A system of recognizing and rewarding prisoners who make consistent progress towards rehabilitation and overcoming their violence should be established within prisons before release, not by early release.
- No bail to be allowed for those charged with serious violent offences.
The new Sue Bradford Section 59 of the Crimes Act, which criminalises parents for using any force to correct their children, must be repealed at the soonest possible opportunity.
Parental authority is distinctly separate from government authority and must not be superseded, interfered with, or overthrown. The present Sue Bradford S59 Act has removed crucial authority from parents and brought government authority right into the heart of the family to interfere with child rearing, and family structure. Parents have the God given responsibility to raise, train, discipline and correct their children so that they grow up to be responsible, respectful, and law abiding. The safety and prosperity of a society is in large measure dependant on parents carrying out this task seriously and faithfully.
The xxxxxx Party fully supports the parents of New Zealand as they carry out their sometimes difficult role, and fully supports initiatives which uphold and maintain parental authority. To this end it emphatically commits to the repeal of the Bradford Act.