Crime and Punishment
All PostsTwo recent articles have made me reflect on crime and punishment.. The first article setting the scene for issues about sentencing is the speech delivered by Justice Minister Andrew Little at Geneva (the link being https://www.beehive.govt.nz/sp.... ) In his speech, he talked about disproportional representation of Maori, prison capacity and prison violence and the mental health issues present with many prisoners. He discussed the initiatives which are being taken to try to reduce offending by 30% over the next 15 years. Part of the basis for the concern is the duty to protect indigenous rights under the Treaty of Waitangi. But the issue goes wider with structural discrimination and marginalised groups, and he talked about the need to change the approaches.
The second article relates to the release by the New Zealand Law Society of the Standards Committee decision on the law firm partner who sexually harassed two of the firm's employees. The lawyer was censured, fined $12,500 and ordered to pay costs of $2500. Subsequently there have been a number of criticisms of the penalty. One of the articles can be found at this link https://www.newsroom.co.nz/201.... The writer and the commentators suggest that the result is "woefully inadequate" and that the penalty doesn't reflect the seriousness of the conduct or act as a sufficient deterrent. It was suggested that the lawyer should have been suspended and that the fine should have been paid is preparation to the victims, and that his name should have been published, or at least that reasons for the suppression should have been outlined.
This leads to an interesting question of how we should punish wrongdoing. What is the purpose of the punishment? Is this retribution? The president of the Court of Appeal, Justice Kos discussed this in an article last August. (https://www.courtsofnz.govt.nz...) He said that he was "yet to see any convincing evidence that sentence length deters either the specific offender or the criminal (or potentially criminal) population generally." He suggested that it is not prison sentences that deter, but the prospect of detection and capture. Of course, a law society standards committee does not have the power to imprison lawyers who defend against the code of practice. But the same principle applies, whether the level of the fine or the possibility of suspension or being struck off, acts as a deterrent for bad behaviour. If that was an efficient process, then after the introduction of a system of rules for behaviour, and the punishment of lawyers for breaching those rules, then no further lawyers would be ever punished again, which is of course nonsense. I would suggest that in the case of discipline for lawyers (and indeed many other professions) the principal deterrent is the threat to the ability to practice by suspension or being struck off. Being a member of the legal profession carries some prestige, and so being removed carries the loss of mana which for many would act as a deterrent on its own. And of course a practising certificate gives the lawyer the ability to make a good income, and the social prestige and comfort which comes with that. To some extent therefore, the fine and costs are not nearly as significant. I believe the principal deterrent is not whether the lawyer is concerned about the level of the fine and costs, but the effect on their ability to continue in practice. Reputation is important in the practice of law. Someone who has been censured or suspended or struck off will lose credibility with other lawyers but perhaps more importantly, with their clients and potential clients.
It is easy therefore to do what we have in New Zealand for many years, which is to continually increase the punishment for all sorts of offending. But as the justice minister has observed together with Justice Kos, it just doesn't work.
The missing element in my view is that of restorative justice. If we look first at what this means, that provides a more thoughtful response to what should be done to errant practitioners. So restorative practice is any process whereby all the parties with a stake in a particular issue or conflict, come together to resolve collectively how to deal with the issue or aftermath of the conflict and its implications for the future. There is often a close relationship between the lawyer and the client and breaches of the code are often seen as breaches of duties of good faith or fiduciary duties. That is sometimes an intimate relationship. It is not too different when the complainant is employed by the lawyer, and there are similar duties of good faith. So who are the parties? There are generally a complainant, the lawyer and the law society. The complainant has some issues as the victim, the lawyer has the perpetrator and the law society as the maintainer of standards for the profession. Once the complaint has been made a restorative justice facilitator could then explore the questions. The five major questions for a restorative justice process would be to explore:-
- what happened?
-What were you thinking?
-How were you feeling?
-Who else has been affected by this?
-What do you need now so the harm can be repaired?
What do we gain from using a restorative practice approach? We get better involvement of the complainants, opportunities for the lawyer to explain what they did and make amends and the law society has the ability to have a direct input into the issues from the perspective of appropriate standards of practice. Any restorative justice meeting must be carefully prepared. With complaints about lawyers the issue of disproportionate power in such a process is very important and so there must be a support for the victim to ensure that they can face the lawyer with the knowledge that they will not be overcome by someone who is articulate and able to overwhelm the layperson with knowledge and power. Part of restorative practice is to ensure that the balance of power is addressed at any preparation and meeting. Of course it is up to the standards committee or disciplinary tribunal to actually impose any punishment. I suggest that the results of a restorative justice meeting would be very influential however. And that would enable us to escape from the punitive approach to something more therapeutic and something which would actually meet the needs of a complainant by actively involving them in the process.
Two recent articles have made me reflect on crime and punishment.. The first article setting the scene for issues about sentencing is the speech delivered by Justice Minister Andrew Little at Geneva (the link being https://www.beehive.govt.nz/sp.... ) In his speech, he talked about disproportional representation of Maori, prison capacity and prison violence and the mental health issues present with many prisoners. He discussed the initiatives which are being taken to try to reduce offending by 30% over the next 15 years. Part of the basis for the concern is the duty to protect indigenous rights under the Treaty of Waitangi. But the issue goes wider with structural discrimination and marginalised groups, and he talked about the need to change the approaches.
The second article relates to the release by the New Zealand Law Society of the Standards Committee decision on the law firm partner who sexually harassed two of the firm's employees. The lawyer was censured, fined $12,500 and ordered to pay costs of $2500. Subsequently there have been a number of criticisms of the penalty. One of the articles can be found at this link https://www.newsroom.co.nz/201.... The writer and the commentators suggest that the result is "woefully inadequate" and that the penalty doesn't reflect the seriousness of the conduct or act as a sufficient deterrent. It was suggested that the lawyer should have been suspended and that the fine should have been paid is preparation to the victims, and that his name should have been published, or at least that reasons for the suppression should have been outlined.
This leads to an interesting question of how we should punish wrongdoing. What is the purpose of the punishment? Is this retribution? The president of the Court of Appeal, Justice Kos discussed this in an article last August. (https://www.courtsofnz.govt.nz...) He said that he was "yet to see any convincing evidence that sentence length deters either the specific offender or the criminal (or potentially criminal) population generally." He suggested that it is not prison sentences that deter, but the prospect of detection and capture. Of course, a law society standards committee does not have the power to imprison lawyers who defend against the code of practice. But the same principle applies, whether the level of the fine or the possibility of suspension or being struck off, acts as a deterrent for bad behaviour. If that was an efficient process, then after the introduction of a system of rules for behaviour, and the punishment of lawyers for breaching those rules, then no further lawyers would be ever punished again, which is of course nonsense. I would suggest that in the case of discipline for lawyers (and indeed many other professions) the principal deterrent is the threat to the ability to practice by suspension or being struck off. Being a member of the legal profession carries some prestige, and so being removed carries the loss of mana which for many would act as a deterrent on its own. And of course a practising certificate gives the lawyer the ability to make a good income, and the social prestige and comfort which comes with that. To some extent therefore, the fine and costs are not nearly as significant. I believe the principal deterrent is not whether the lawyer is concerned about the level of the fine and costs, but the effect on their ability to continue in practice. Reputation is important in the practice of law. Someone who has been censured or suspended or struck off will lose credibility with other lawyers but perhaps more importantly, with their clients and potential clients.
It is easy therefore to do what we have in New Zealand for many years, which is to continually increase the punishment for all sorts of offending. But as the justice minister has observed together with Justice Kos, it just doesn't work.
The missing element in my view is that of restorative justice. If we look first at what this means, that provides a more thoughtful response to what should be done to errant practitioners. So restorative practice is any process whereby all the parties with a stake in a particular issue or conflict, come together to resolve collectively how to deal with the issue or aftermath of the conflict and its implications for the future. There is often a close relationship between the lawyer and the client and breaches of the code are often seen as breaches of duties of good faith or fiduciary duties. That is sometimes an intimate relationship. It is not too different when the complainant is employed by the lawyer, and there are similar duties of good faith. So who are the parties? There are generally a complainant, the lawyer and the law society. The complainant has some issues as the victim, the lawyer has the perpetrator and the law society as the maintainer of standards for the profession. Once the complaint has been made a restorative justice facilitator could then explore the questions. The five major questions for a restorative justice process would be to explore:-
- what happened?
-What were you thinking?
-How were you feeling?
-Who else has been affected by this?
-What do you need now so the harm can be repaired?
What do we gain from using a restorative practice approach? We get better involvement of the complainants, opportunities for the lawyer to explain what they did and make amends and the law society has the ability to have a direct input into the issues from the perspective of appropriate standards of practice. Any restorative justice meeting must be carefully prepared. With complaints about lawyers the issue of disproportionate power in such a process is very important and so there must be a support for the victim to ensure that they can face the lawyer with the knowledge that they will not be overcome by someone who is articulate and able to overwhelm the layperson with knowledge and power. Part of restorative practice is to ensure that the balance of power is addressed at any preparation and meeting. Of course it is up to the standards committee or disciplinary tribunal to actually impose any punishment. I suggest that the results of a restorative justice meeting would be very influential however. And that would enable us to escape from the punitive approach to something more therapeutic and something which would actually meet the needs of a complainant by actively involving them in the process.