Coming to terms with sentences

Mt Eden Prison in Auckland. Picture / Chris Skelton

When it comes to talk about criminal justice or law and order, slogans are never far away. Get tough on crime. More police on the streets. Zero tolerance. Hard labour. Lock them up and throw away the key. Hang 'em high.

With the release of the Law Commission's Sentencing Guidelines and Parole Reform report, we have another - truth in sentencing. The slogan isn't new, having been around legal academic circles and a part of the American penal system for about 20 years.

Some may also remember the failed Truth in Sentencing Bill proposed by Act's Richard Prebble in 1999. The bill was shot down in 2000 by then Minister of Justice Phil Goff who said the Act sentencing regime would lead to a 55 per cent increase in the prison population and cost $838 million over three years.

But now Labour, accepting the commission's report, has reclaimed truth in sentencing as part of its law reform platform.

Cost is still very much part of the sentencing equation but, as law commissioner Warren Young points out, the "truth" in today's catch-cry means something different. "What the Act bill did was to require almost everyone to serve 100 per cent of the time. We do not agree with that - we have said we should retain a parole system."

Young says the commission's recommendations provide a mechanism for rational debate about sentencing issues - a debate that until now has been conducted at the level of slogans. But slogans can be useful in defining the essence of the thinking.

Bark and bite sentencing

A fundamental problem with our system is the judge's bark when handing down sentence bears little relation to prison's bite.

Almost all sentences over two years are eligible for parole after a third of the time served. A nine-year sentence means anything from three to nine years and, on average, six .

"There was a lot of victim anger and frustration when people came up for parole consideration very early in a nine-year sentence," says Young. "That tended to be bringing the system into disrepute."

Otago University law professor and sentencing expert Geoff Hall has a blunter assessment: "The one-third parole period was dishonest. It was hoodwinking the community."

There's doublespeak, too, in sentences of two years and under - prisoners are automatically released after serving half. Two years means 12 months.

That leads to some ridiculous anomalies. Someone sentenced to two years is automatically released after 12 months, while someone sentenced to two and a half years is eligible for parole after 10 months.

The commission wants sentences to mean what they say and for judges to say what they mean. Eligibility for parole will be shifted from one third to two-thirds of time served and for shorter sentences there will be no automatic release at half-term.

Hall sees such reforms as overdue: "The more accurate indication you can give members of the community as to how long a particular offender is going to serve, the better. It's providing transparency in the process, that's got to be desirable."

The meat in the sentencing sandwich

Pity the poor judges. It doesn't matter what they do, they're always criticised - either for being too soft on crims or too hard and inconsistent. Under the new rules, judges will spell out the whole truth. "The judge will say: 'I'm giving you six years - that will mean a minimum of four and a further two during which you may be released.' Everyone will know what it means," explains Young.

But there is another problem. The commission's research shows, for example, that you're much more likely to be imprisoned for driving under the influence in Napier than in Auckland.

"Individualised justice can easily become an excuse for inconsistent justice," says the report.

The commission's solution is an independent Sentencing Council to set punishment guidelines for all types of crime.

Hall says the council, which will be made up of four judges, the chair of the Parole Board and five other members, is a positive move because it brings the community back into sentencing. "I do think we have lost the community somewhere along the way."

The truth about the rhetoric

While the new rules sound sensible they also deliver an unpalatable mathematical truth. Sentence terms will have to come down - by an average of 25 per cent. Under the new regime, parole eligibility won't kick in until two thirds of the sentence. Prisoners will be locked up longer - expected to serve on average 80 per cent of their sentence instead of the current 62 per cent. Groups such as the Sensible Sentencing Trust will see that as a good trend but our growing prison population means our prisons are already busting at the seams. "You would literally have prisoners on ships in the harbour," says Young.

So, to keep the status quo, overall sentence length needs to be cut by an average of 25 per cent. "It is very easy for people to get the idea that it means a reduction in actual punishment," says Young.

Doesn't it? He points out shorter sentences, with no automatic half-term release, will come down without affecting the time served. A person previously given two years will now get one. But some long-term sentences will have to come down, as well. That's because short-term sentences have a lesser effect on the prison population than long ones. Sentences of six months or fewer make up 47 per cent of prison receptions. But because such offenders don't stay long, they make up only 5.5 per cent of the prison muster any time. "If you wanted to bring down the prison population substantially or indeed if you wanted to arrest the upward trajectory significantly," says Young, "you have to actually bring down some longer sentences' lengths."

Hall sees a danger in the logic. What if the increase in our prison population is not due to "sentence creep" - judges responding to public outcry and getting tougher - but on an actual increase in violent and sexual crime?

"That type of offence is likely to result in imprisonment, so you would expect that to put imprisonment rates up," says Hall. "You could argue, with quite solid ground, it is due to the current P epidemic. But the Government doesn't want to be trumpeting the fact that we have a P epidemic."

Sentencing by numbers

The worry for judges is that once the guidelines are in place (that's likely to take two years), they'll be so constrained , they'll have no sentencing discretion left. "Obviously we don't want to put judges in a straitjacket," say Young. "It's extremely important they retain flexibility to do justice in the individual case." On assault charges, for example, Young envisages non-prescriptive guidelines arranged in bands of seriousness.

"We're not advocating here a one-size-fits-all approach to every offence type," he says.

"Guidelines will need to differ according to the nature of the offence. I don't think that is sentencing by numbers."

Hall agrees: "I see it as imposing constraints on their sentencing discretion, but judges are used to that. They have that with the various matters that have to be addressed in the Sentencing Act now. There are a hierarchy of penalty steps in a sentencing ladder."

Young points out that the changes will work only if there is a credible array of sanctions other than imprisonment - something the Ministry of Justice says it will address with more rigorous pre-prison penalties.

Hall sees such a move as vital. He says the biggest mistake in the 2002 Sentencing Act was to abolish periodic detention (PD) in favour of less strict community service where offenders can choose when to complete their sentence without disrupting their social calendar. "With PD if you didn't turn up at 8am the first week you were sentenced, you were given one warning. If you were late the next time you were breached. It had deterrent value. It was punitive and the judges knew that."

Hall says what's missing is "intermediate sanctions with bite" - something short of imprisonment, but also with a reformative affect.

"It might be alcohol or drug counselling, but you've got to turn up somewhere at a specified time and you've got to stay there. It could just be general education in the community such as learning to read and write. Or learning basic living skills that a lot of these people, through the revolving doors of prison, lack."

Justice should not be affected by cost

The aim of the commission's recommendations is to be able to manage prison population growth. "Only if sentences become predictable can policy makers know how many prison beds will be needed," says the report. The Sentencing Council will be required to include with its guidelines an assessment of their impact on the prison population. Young says sentencing guidelines that show the cost of what tougher sentences produce will force people to focus on whether they are prepared to pay for that. "I don't think people think about the costs when they are making those judgments."

But shouldn't the principles of justice and the aim of making communities safer be beyond a cost effectiveness equation? "If that were true, there would be no limit on expenditure on police or crime prevention either." Hall wonders whether the proposals aren't missing a bigger picture. "We're making all these changes just so we can predict more accurately what the prison population is going to be. But if they don't get the P epidemic under control, we are going to have more and more people committing bizarre offences for which the only place you can sentence them is prison."