Review of penal policy covers wide field

Press, 10 February 1982, Page 21

Review of penal policy covers wide field

“The Press” offers readers an opportunity to consider all the recommendations of the Penal Policy Review Committee. The first 27 recommendations appear here. The remainder will be printed tomorrow.

The Penal Policy ReviewCommittee made 73 major recommendations in its report to the Minister of Justice published last week. All 73 are printed here, with a selection of the comments and amplifications offered by the committee in the main text of its report. These comments form no more than a very brief selection of the reasons given bv the committee for reaching its conclusions. The committee also emphasises in its report that its recommendations form only a part of the wide range of subjects discussed or recommended in its review.

The recommendations, in bold type, are: 1. That imprisonment be a penalty of last resort and the criteria for it set out in paragraph 121 be adopted. Paragraph 121 of the committee's report (abbreviated) says:

Over a broad field of criminal activity the costs of inprisonment in financial, social and human terms are out of proportion to its effectiveness in securing a reduction of offending and inducing respect for and obedience to the law.

— We accept as criteria applicable to conditions in New Zealand the following statement by the Law- Reform Commission of Canada in its 1975 report “Inprisonment and Release":

— "Inprisonment should be an exceptional sanction and should be used only for the following reasons: (a) To separate from the rest of society for a period of time certain offenders who represent a serious threat to the life or personal security of others: (We would add “or commit serious property offences") (b) To denounce behaviour that is deemed highly reprehensible because of its violation of fundamental values; -

(c) To sanction offenders who wilfully fail in carrying out obligations imposed under other types of sentences." 4

The committee adds a further clause — (d)to act as a deterrent if this can be seen as a most likely result, to an extent which no other sentence can achieve. — In determining whether imprisonment is appropriate to separate an offender from society, the commission proposed two tests: (i) Has the offender been convicted of a serious offence that endangered the life or personal security of others? and

(ii) Is there the probability of the offender committing another crime which will endanger the life or personal security of others, to the extent that imprisonment is the only sanction that can adequately promote the general feeling of personal security? To these the New Zealand committee would add a reference to serious property offences.

—2. That there be an urgent review of the structure and level of maximum penalties. The committee comments: — Maximum penalties have developed haphazardly over a long period and appear to lack rationality and

coherence. Many . of them bear little relationship to current sentencing practice. Such a review would have three main purposes. First, it would enable the number of imprisonable offences to be reduced. Some of them do not warrant such a sentence, which may only have been provided to ensure that offenders could be arrested. Many of them were fixed before the current non-custo-dial measures were available. Second, the review’ would reduce the maximum terms of prison sentences that can be imposed for a substantia] number of offences, thus again tending to an over-all . reduction in sentence lengths. Third, the review would enable the comparative seriousness of different offences to be made clearer. — 3. That section 41 of the Criminal Justice Act, 1954, be retained, but amended to provide that the period of recall be limited to 12 months; that the conditions giving rise to recall be adequately defined and that appropriate procedures for recall and sentence be enacted. Under section 41 of the Act the court may order a convicted person to come up for sentence if called upon within one year or any longer period (not exceeding three years) as it may specify and on such conditions as it thinks fit. The committee comments: We think the maximum term of three years is too long to have any realistic effect as a deterrent, and would recommend its limitation to 12 months as the period within which a person may be called upon for sentence. We also recommend that the reasons for which he may be recalled be defined and be limited to offences above a minimum level of seriousness. 4. That the court have power, to impose a sentence comprising custodial and non-custodial elements with an over-all maximum of 12 months, provided that the total does not exceed the prison sentence which the court might otherwise have imposed for that offence (a majority recommendation). The committee comments; We support the Throughcare programme (described later) developed from the proposals by the Secretary for Justice, involving a flexible use of community-based measures towards the end of an inmate’s sentence, w’ith a view to his easier integration into society. It requires a much earlier and more imaginative intervention by welfare and support service's than is now the case, and a heavy reliance upon community and volunteer organisations. — 5. That for humanitarian reasons the court should have the power to postpone the commencing date of a sentence of imprisonment. —6. That existing provisions for remission be retained in the meantime, pending an evaluation of the impact of this review upon prison numbers (majority). The committee comments: If there is a substantial reduction in prison numbers, the majority feel that remission time for very short sentences could be' elimin-

ated. and that for long sentences reduced so that the sentence actually served bears a more realistic relation to that imposed. Certainty is essential to any system of remission and the committee therefore favours the period being fixed at the outset, with time lost for proved offences or misconduct. Inducements for extra work or better conduct should not consist of extra remission because of the uneven and arbitrarj’ way this can operate. — 7. That parole should be restricted to indeterminate sentences (life and preventive detention) and that persons serving a life sentence remain eligible for consideration after seven years. This recommendation should be reviewed if remission for long sentences is substantially reduced. —B. That if statutory probation is retained in its present form, it should be imposed for a minimum period of three months and run for the additional term of the sentence which would have been served but for release, with a maximum of six months.

The committee states: There is some confusion about whether statutory probation is to be regarded as a rehabilitative or surveillance device, or both. Probation officers take the view that it is quite ineffective as a surveillance technique, but may have value in providing support during the period of reentry into the community. As it now stands, statutory probation seems resented by most prisoners, who regard it simply as an additonal sentence. In the inmates’ survey, only 25 per cent thought it was useful and only 2.7 per cent considered that everyone should be placed on probation on release, but over 40 per cent felt that it should be available for those who needed it.

. We think it should be preserved for all sentences of one year or more to provide support during the period between release from prison and reintegration into the community. . — 9. That the mandatory life sentence for murder be abolished and replaced by life sentence as a maximum only (majority).

The committee comments: A life sentence as a maximum is appropriate for the offences to which it commonly applies, namely murder, manslaughter, and serious drug offences. However, the committee was divided on whether it should be a mandatory sentence for murder. There can be great variations in culpability and blameworthiness calling for very different treatment to ensure justice in sentencing. And it is now universally known and accepted not to be a life sentence at all.

The ultimate responsibility for sentence is effectively taken away from the court and vested in the Ministers hands on the recommendation of the Parole Board. We see this as quite wrong in principle. A procedure that was intended originally as an act of clemency has now become the real sentencing process, thereby removing it from the judicial to the executive and political field.

The time may now have arrived when the mandatory life sentence should be discarded, returning the sentencing power to the court where it belongs. Once that is done, the intervention of the Minister in granting parole for a life sentence can be seen in its proper place as an administrative and executive decision. A majority of the committee recommend that mandatory life sentence for murder be abolished and replaced by life sentence as a maximum only. The minority (2) considered the mandatory provision emphasised the State’s concern to preserve human life. —lO. That preventive detention be abolished provided a lengthy finite prison sentence can be imposed in appropriate cases. The committee defined as “appropriate" cases where there is a continuing disposition and history of serious sexual or violent offending, and where the court is satisfied that there is a strong risk of repeated offending, and the protection of the public requires preventive detention. 11. That the Throughcare concept be adopted in the management of prison sentences with appropriate arrangements for release towards the end of the sentence to assist reintegration into the community. The committee comments: The Throughcare concept relies heavily on the support and assistance of individuals and voluntary organisations. Fundamental to it is a concern to preserve and foster the association between an inmate and his community. It calls for greater involvement of welfare and other agencies in the social, educational, and recreational services available in prisons, located in communities with which the inmate can identify, and a programme of

development throughout his term aimed at integrating him back into that community on release. This involves preparation well before that date and the ability to enlist the help of community agencies during the later parts of his sentence under the supervision of officers of the Department of Justice. — 12. That the criteria for the nature of prisons be those set out by the committee. The committee comments: The purpose of imprisonment is the containment {of individuals, who are being punished by the loss of their liberty, under humane, fair and restrained conditions inflicting the least possible physical, mental and social harm, in the hope that the prisoner will at least leave the institution no worse than when he entered it. The committee's recommendations for a prison include: (a) Inmates should be imprisoned as close to their own community (family, friends) as is possible. (b) Prisons should provide resources that may assist the prisoner to re-establishment back into the community. Such resources should ' be available to the prisoner for the entire length of his sentence. The use of these resources, should be voluntary. (c) All activities undertaken to effect this end should make use of resources (e.g., educational, vocational, cultural, etc.) existing in the community, rather than attempt to duplicate these within the prison setting. (d) In conjunction with (c), prisons should have a flexible system of temporary paroles and a wide range of prerelease facilities to allow inmates to use community resources.

(e) To help their integration into society, inmates should have as much access

to and contact with the community as possible throughout their sentence.

(f) Apart from providing access to resources to promote inmates' gradual reestablishment into the community on release, other activities should be provided to reduce idleness and boredom.

(g) There should be a comprehensive code, made available to inmates, of their rights and privileges, and means should be adopted to ensure that these are not infringed.

(h) Inmates should be encouraged to participate in discussions about prison programmes. They should be immediately informed of all decisions affecting them. (i) The general criteria of classification, and general reasons for granting or withholding work parole and/or home leave, should be formulated and available to inmates.

— 13. The criteria for the location and size of prisons should be those described by the committee. The committee comments: There are obvious disadvantages to prisons in sparsely populated areas. It is impossible to use urban educational and social facilities, or medical and psychiatric services. There is difficulty in recruiting professional staff to work in rural areas, and it involves them living in prison village housing.

Isolation also causes prolonged interruption of an offender’s contact with friends and relatives, and the community. The criteria for location of prisons should be: (i) The need to reintegrate offenders back into their own community. (ii) The need to have academic, social, medical, and educational services in close proximity. (iii) The desirability of

prison staff living within the normal community.

(iv) The desirability of the offender maintaining close contact with friends, relatives and previous employers. (v) The need to provide work release and community support programmes as part of the transition process from prison back to the community.

The committee shares the view of the Secretary for Justice that a muster in the range of 80 to 100 in one prison should be the ideal.

The criteria for prison size should be:

(i) The need to prevent uniformity, regimentation and depersonalisation of inmates.

(ii) Manageability and administrative ease.

(iii) The need to prevent depersonalising effects on staff.

— 14. That the prison model described by the committee be adopted as the basis for all future planning. The committee summarises its model as:

(i) A network of small, community-based regional prisons which (a) cater for specific catchment areas, (b) house inmates of minimum and medium security, and (c) have Throughcare 'facilities available within those areas. (ii) A secure institution for inmates who are special security risks and are not able to be retained at a Regional Prison. (iii) A medium security institution for inmates unsuitable for regional prisons but who are also unsuitale for transfer to the maximum security institution.

(iv) A number of specialpurpose prisons to -cater for inmates undergoing special custodial sentences and those requiring special treatment.

— 15. That there be a study of the establishment of two regional prisons in suit-

able localities as a pilot scheme for the prison model, and if this demonstrates its feasibility that they be established accordingly, and their operation be closely monitored with a view to developing this system throughout New Zealand.

— 16. That in any such experimental prisons, younger offenders be included and female inmates be separately accommodated, and that the situation be monitored and evaluated. Among its comments, the committee states:

There are three separate female institutions, one in the South Island and two in the North, with huge catchment areas. In no way can they be fitted into a regional concept and the only answer is to integrate females into segregated accommodation in existing institutions. This already happens in Mt Eden. The concept must be approached with caution, but we believe the advantages of keeping inmates closer to their families and friends warrant the effort, and will enable them to take advantage of the support available in their local community. The number of females in the system is small. We recommend that male and female inmates be separately accommodated on an experimental basis in the first Regional Prisons, and that it be monitored and evaluated with a view to having mixed accommodation in all regional prisons and the eventual closure of separate female prisons.

— 17. That our views of hostels be taken into account in implementing any Throughcare programme to ensure that resources are used as widely as possible. The committee comments:

Far from there being a need for additional prerelease hostels, the emphasis should be on using what are necessarily limited resources to provide transitional assistance in other ways, to benefit not just a select few but as many newly released inmates as possible. This means a change to supporting community programmes and helping to organise wider facilities and resources in society, rather than limiting the department to direct assistance for only a few released inmates. This is at the base of the Throughcare concept. — 18. That all inmates be classified minimum security unless they fall into the stated criteria excluding that designation. These Criteria are:

(i) Prisoners whose escape would be dangerous to the public (e.g., serious and repetitive violent offenders); (ii) Prisoners who may attempt to continue indirect involvement in, or association with, those engaged in criminal activity in the community (e.g., those convicted of class A drug offences, especially supply); and (iii) Prisoners who constitute serious behavioural or discipline problems.

— 19. That there be an appeal by way of re-hearing to a visiting justice who is a District Court Judge, from the superintendent or a visiting justice who is a Justice of the Peace, on any decisions involving loss of remis-

Among its comments, the committee remarks: A prisoner charged with an offence finds himself in a vulnerable situation. He is unrepresented by counsel and may often be disadvantaged against prison officers, who will be articulate and well prepared in their evidence against him. We emphasise the importance of the fullest appearance of fairness to the prisoner.

— 20. That section 32 (2) of the Penal Institutions Act 1954 be amended as recommended by the Ombudsman. Section 32 (2) of the Act provides that every inmate commits an offence against discipline who makes false and malicious allegations against any officer, or anv other inmate, or any other person lawfully in the institution. This has given rise to a belief that if prisoners allege misbehaviour on the part of an officer and their allegations are not supported. then they run the risk of being charged with a breach of this provision. The Ombudsman recommends that this section be amended to read: “Every inmate commits an offence against discipline who, in any written or verbal statement, being contrary to the fact and without a genuine belief in the truth of the statement, makes an allegation against any officer, or any other inmate or any other person lawfully in the institution.” — 21. That prisoners otherwise eligible should be entitled to vote at any election (majority). The committee's comments include: It is illogical to disenfranchise only convicted persons in prison when there are now a range of other sentences available for dealing with them, For consistency, any person convicted of an offence of appropriate seriousness should have his vote taken away. This is clearly absurd. The right to vote has nothing to do with the loss of personal liberty and accordingly should remain as one of the attributes of a citizen. One member of the committee was strongly opposed and considered that the ability to vote in the municipal elections should also be abolished.

22. That restrictions on visits to prisons by former inmates be liberalised in accordance with our proposals. These proposals include: The provision excluding former inmates seems too restrictive. There are obvious reasons why their entry should be controlled, but we believe such visits may be beneficial in some cases, and had cited to us the experience of those in the Salisbury Street Foundation who wished to interest prerelease prisoners in their work. We think the discretion could be left initially to the superintendent with a further reference to the Secretary for Justice should he not approve. Generally, as conditions stand, the provisions about visiting are flexible enough and are administered as liberally as possible. — 23. That the existing restriction on home leave relating to adverse public

(To be concluded tomorrow.)

criticism be abolished, and that such leave be liberalised within the requirements of security and public safety. The committee's comments include:

We think there is a strong case for minimum security offenders to be given home leave very shortly after sentence, if the family needs it, because that is the time of the most traumatic impact, and the wife or mother may need help in coping with problems thrust suddenly upon her.

As a general proposition we see every reason for liberalising ‘home leave within the requirements of security and public safety, especially if the system of regional prisons is adopted. As well as keeping an offender in touch with supportive influences, it tends to preserve a sense of responsibility for dependants which can be easily destroyed in the managed environment of prison.

— 24. That the Justice Department complete its evaluation of Corrective Training as soon as practicable and then suggest guidelines for the type of offender and conduct for which the sentence may be suitable. The committee comments:

There are situations when a short, highly punitive and disciplined sentence of this type may be the only effective way that a court can deal with certain categories of youthful offending. Any expectation that they will instil discipline or good habits can be instantly dismissed. The sentence ’is entirely punitive. We can see its place as a short, hard punishment for serious offences by young persons who will not respond to any other short sentence. But for many offenders it is quite inappropriate. *25. That there be a compulsory medical examination for all persons being considered for corrective training, and that only persons found fit be sentenced to it.

— 26. That there be power before sentence to recommend an offender to a hospital or other certified institution under the Alcoholism and Drug Addiction Act 1966 for assessment for his or her suitability to receive treatment under section 48A of the Criminal Justice Act 1954.

The committee was concerned that, as the law stands, once the court orders the committal of an offender to an institution the offender, becomes a committed patient and is subject to normal release procedures. Hospitals accepting such a patient regard themselves as treatment centres only, whereas judges usually expect the offender to be detained for . a substantial period.

— 27. That where an order under section 48A is made and the institution decides there was no point in further detention, or if the offender is no longer prepared to cooperate in the treatment, he be returned to court for sentencing,- and that the length of time spent in detention and the offender’s response be taken into account.