Key Points:

  • It's science sceptic versus scientist in the debate over our criminal justice path
  • Garth McVicar says academics and scientists shouldn't be involved
  • The Prime Minister's chief scientist says the choice belongs to the public
  • The verdict from Justice Minister Andrew Little

Science in crime and justice is bunkum and politicians should discard "academics and those type of people" in favour of the public voice, says the Sensible Sentencing Trust's Garth McVicar.

That's his take on the heavily researched, deeply referenced report published by the Prime Minister's chief science adviser, Sir Peter Gluckman, into our criminal justice system.

In an extraordinary interview, McVicar ridiculed scientifically backed evidence and told Minister of Justice Andrew Little he had his "ammunition ready" to bring the Government down after a single term if bail and sentencing changes were rolled back.

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It comes as the Government prepares to unveil plans for a "justice summit" after Little declared "tough on crime" approaches followed by New Zealand for years did not work.

Little's comments were supported by Gluckman, whose recent evidence-based review of our approach to criminal justice found our rising prison population has not made New Zealand safer.

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In fact, he said "tough on crime" had nothing to do with our falling crime rate and "dogma not data" had actually made everything worse.

The lobbyist

It's almost 20 years since Garth McVicar became a prominent advocate for "tough on crime" policies.

As founder of the Sensible Sentencing Trust, he has frequently met politicians, appeared on television and acted as a go-between with media and families of murder victims so their "voices" can be heard in the debate of crime and punishment.

In that time, Labour and National Governments have increasingly passed laws leading to a soar-away prison population even as crime is falling.

Garth McVicar of the Sensible Sentencing Trust - sceptical of academic and scientific input into criminal justice debates.
Garth McVicar of the Sensible Sentencing Trust - sceptical of academic and scientific input into criminal justice debates.

McVicar rejects the notion the scientific research is correct and warns about seeking out the same expert advice relied on before the Sensible Sentencing Trust emerged.

As McVicar tells it - and this is in contradiction to the graphs, statistics and peer-reviewed research in Gluckman's report - academics and scientists had led New Zealand into a crime-ridden society until the "evolution" of the Sensible Sentencing Trust.

"How can Gluckman be right when all he's doing is going back to prior 2001 or 2000? How can he be right?"

McVicar says - and Gluckman's report says this is not true - longer sentences, tougher bail laws and making parole more difficult to obtain have led to the fall in our crime rate.

Gluckman's report was simply the chief science adviser "running off his mouth without having any conclusive evidence to prove what he had to say".

McVicar doesn't accept the report and says the 149 inter-linked research references "don't support what he's saying".

Of the report, written with clinical psychologist and University of Auckland associate professor Ian Lambie, McVicar says: "You can twist figures around to put the spin on that you want and that appears to us what he's done.

"They listened to science for 20-30 years before the evolution of Sensible Sentencing, didn't they, and you couldn't say that worked any which way you twisted it."

On the dogma versus data - public opinion versus science - McVicar is clear who ministers should listen to.

"The voice of public opinion. I don't think Gluckman saying [going] back to producing scientific reports and graphs and whatnot … is proving anything at all."

Gluckman's report says our falling crime rate stemmed from lower property crime, mainly because of better security - more CCTV, better lighting in streets, the difficulty of stealing modern cars, and other factors.

Likewise, new policing strategies have also had an impact.

The report says: "This is completely at odds with the populist assumption that it is by putting specific offenders into larger prisons that crime will fall."

McVicar says that's not true. Instead, he sees it this way: "In our opinion, public opinion had been totally ignored [through the 1990s] and the academics and criminologists and all those sort of people had driven criminal justice policy even though it was very clear that it was failing.

New Zealand's prison population today is 10,588 - up from about 8,000 four years ago.
New Zealand's prison population today is 10,588 - up from about 8,000 four years ago.

"There was no questioning of … their ideas and their ideology until the SST came along and started giving the victims a voice in this thing. That got a lot of traction and led to a lot of change and there's been a significant drop in crime.

"We've got a high prison population but crime is at its lowest - what's the correlation there? You've locked up the bad buggers. Simple.

"We're seeing the backlash around that now, with the science - as you call it - or the academics or criminologists coming back to have their day."

He doubts it will work. "It's all going to be tried and failed stuff."

Mention alternate reasons other than the effectiveness of the trust to McVicar and he responds: "That sounds like something coming out of a science report."

For McVicar, who has dedicated almost 20 years to advocating for "tough on crime" policies, Gluckman's report raises a question as to whether he has had a role in steering New Zealand down a failed path.

McVicar links the focus on victims to the success the trust has had in creating wider debate around criminal justice. Others interviewed for this piece agree greater involvement of victims in the criminal justice process is a positive improvement to our system.

But McVicar says the Sensible Sentencing Trust never pushed politicians - even though its website claims law changes as "achievements".

Instead, he says it only ever asked a question.

"All we did was open up the debate and say, are we going in the right direction?

"We weren't in any politician's pocket in driving policy, we were just saying - do you think this actually worked?"

And yet, McVicar has a warning on the few areas Little has raised as possible areas of reform.

Those include lowering the prison population (high numbers achieve nothing, says Gluckman), repealing the three-strikes law (Gluckman: doesn't work) and getting rid of bail reforms the trust refers to as "Christie's Law", although the law reflected little for which it campaigned.

McVicar: "That strikes a note of concern for us. If Andrew wants to go down that way, I would predict that it is going to be a one-term Government."

While unsure what the Government is planning, he says: "We've done a lot of research and ran a couple of polls to try to get our ammunition ready."

He says there is wide support for three strikes and the bail changes which sent prison populations skyrocketing.

The scientist

Gluckman has faith in the power of science to help society make good decisions.

"Science isn't a single observation. It's a process of trying to understand the world.

"Science isn't about a single person or a single bit of data - the process of science is trying to understand over a good period of time what is going on in the world."

"How science is used is a value judgment. And that's what society does. It has the right to ignore it - I think it is unwise to ignore science but it has the right to do so - and what science is really doing is giving a range of options to society."

As for public opinion, he says: "I think public opinion changes when it is informed by intelligent reflective conversation."

Gluckman said the prisons report - as an example - gives the public information to make a decision. If we choose to continue to run our justice system the same way, more people will be locked up who will eventually be released, "brutalised" by prison and "over time we will escalate the crime rate".

And as we do that, we need to recognise our society is not doing enough to stop people entering prison, or if they do go to prison, to shift the focus of their imprisonment to rehabilitation so they can join society in a positive way.

Our other option is to recognise many in prison have "lifetime diagnosable mental illness or substance-use disorder", many are there "because of social circumstances which put them on the trajectory towards unfortunate and harmful outcomes for society".

And, he says, there should be greater effort expended to stop people ending up in the justice system at all.

There's a long, sliding scale between the two positions. "And what … science advice does is it gives to the public and gives to the politicians a range of options.

"How those options are judged is a matter for society's democratic process."

Crime and punishment isn't an issue where it's easy to have a "calm and collected conversation", he says.

Gluckman says he understands how people can be motivated to feel by individual, shocking events like the murder of Christie Marceau, 18, who was killed by Akshay Anand Chand, also 18.

The case led to a review of bail laws but a coronial inquest this year found opportunities to intervene missed and administration problems in the justice system which deprived judges of options around bail.

Gluckman: "Those tragic affairs bias people's views. People think the crime rate is rising when in fact it is not. I understand why emotion enters into this."

He's not opposed to prison. Gluckman has looked closely at the issue and says he "would be the first to say there are people who do need to be locked up".

But broadly, it simply doesn't work. Not only does the prospect of prison fail as a deterrent - research shows it is particularly ineffective in putting young people off crime - but prison itself operates as an "extremely expensive training grounds for further offending", according to the report.

Those inside learn new criminal skills, leave with damaged job, home and family prospects and find addiction and mental health issues made worse. What's more, it does nothing to reassure victims of crime that the risk they faced has been dealt with.

Gluckman: "There's enough evidence to show that once people get into prison they have very few options but to continue to commit crime. That's just part of the problem."

McVicar's refusal to accept scientific evidence is not unusual, says Gluckman. Other issues - such as climate change and genetic modification in food - have people who "will look at data one way or deny its validity in other ways".

It is politicians who make decisions and politicians will always consider public opinion, he says.

"It's called having elections. That's the reality of a democracy. But I think politicians also have to make the right decisions on behalf of their citizens and that's why they are elected.

"Each decision politicians make has tradeoffs which affect different stakeholders in different ways. They have a hard job - that's why we pay them to make those tough decisions."

Waikeria Prison - currently the focus of a proposed
Waikeria Prison - currently the focus of a proposed "mega prison" able to contain 3000 inmates.

Criminal justice in New Zealand has been an especially difficult job. "I think we've got caught in the trap of being 'tough on crime' as the immediate response to every situation.

"I understand why that is the immediate response. That is the immediate response to an alarming event."

It "sounds better" than plans for social investment, dealing with addiction and mental health issues, building resilience and self-control in young people, addressing issues facing young Maori men or those drawing young people into gangs.

"Of course it is inevitable people are going to want to go for the short-term solution of locking people up."

But he says there is a better reaction from "good government".

That would see the Government explaining to the public that the current approach has sent costs skyrocketing - the fastest-growing part of public spending - and "it's not in the end changing the lives of people who are locked up".

"The issue is one that, I think, a good Government needs to think through on behalf of its population - is continuing this trajectory the right thing to do or not?"

The minister

As Minister of Justice, Andrew Little says he will listen to those who work in the field of criminal justice.

When asked, he admits he does at times wonder what our country has done to itself with an increasing drive to imprison people when many would have benefited from help over punishment.

"In the end the whole criminal justice system is about taking people who have done things wrong and trying to stop them doing things wrong again.

"That will work for many of them. It won't work for all of them."

There are changes across the world where innovative approaches have reduced offending.

Gluckman's report cites Washington state in the United States as focusing on early intervention which has reduced crime and reoffending.

"In the end, the fewer offenders we have - particularly violent offenders - and the less recidivism we have, the better it is for community safety."

Contrast this, he says, with increasing levels of incarceration, longer sentences and people who are inevitably, eventually released only to reoffend.

The policies of the past 30 years have not made New Zealand better, Little says.

"You've got to look at particularly our violent offending rate, which is going up."

In contrast, victimisation rates are static or falling only slightly. It means there are fewer burglary victims but increasing numbers who are suffering at the hands of violent offenders.

"If the purposes of having longer sentences and things like 'three strikes' is that it acts as a disincentive, clearly the evidence says it is not."

Little said young men, like many who become regulars in the prison system, do not "stand around with criminal intent" and calculate how to commit a crime so as to get a lesser sentence, or to avoid a "strike".

"They don't do that. If they see an opportunity, or they are high as a kite or whatever, they go and offend."

At the same time, many in prison suffer addiction, mental health and other issues which has been tied directly to criminal offending.

"Unless we start to deal with those issues, we are failing. We are failing members of the public who just become those guys' next victims.

"It's not the length of time a serious offender spends in prison. It's what happens when they are there.

"More and more time isn't going to fix them." If the underlying issues aren't addressed, "we haven't made it any better for them".

"We've just recycling them through the system."

Little says there is an understandable, human empathy for victims of crime. "We wouldn't be human if we didn't."

And he applauds McVicar for his efforts in raising the profile of victims of crime in the justice system.

New Zealand's prison population today is 10,588 - up from about 8000 four years ago
New Zealand's prison population today is 10,588 - up from about 8000 four years ago

"I think we can do a lot better for victims in terms of their voice in court at the right time so I'm very keen to see that happen.

"But equally, we can't just have a system that is built around the variable views amongst victims about how they want a particular offender treated.

"In this enlightened age we want consistency and a basic set of rules so everyone understands when judges are doing sentencing."

The planned criminal justice summit would focus the public, bureaucrats and others in the field on the best information available in New Zealand and around the world.

A great deal of energy would go into getting that information to the public - and a "road show" afterwards would include visiting media outlets, identified in Gluckman's report as disproportionately inflating the public's perceptions of crime.

"It's providing an opportunity to get really good information out there and to get a debate going."

Little says he voted for the Bail Amendment Act which - beyond officials' projections - had led to a sharply increasing prison population as increasing numbers of people were denied bail.

"We were horrified about what was happening and cases that appeared in the media. You couldn't help but think, I really want to do something."

But he now considers it to have been the wrong thing to do.

"We never thought what we would be doing would be consigning a lot more, particularly young men, to period in prison and creating the problem we have got now.

"And then realising this isn't fixing the problem of offending and particularly violent offending."

Little says he had been hearing stories of young offenders held in custody whose offending was "pretty low risk in terms of community safety".

Gluckman's report describes prisons as "extremely expensive training grounds for further offending".

Little says: "There must be other options available that deal with the issue and keep us all safe."

The Opposition

The idea that "dogma" driven by lobby groups and magnified by media influenced politicians to create laws that didn't work is a notion that doesn't sit well with former police officer Mark Mitchell, now National's justice spokesman.

"I completely agree that data and science should be a big driver of good policy decisions but I completely reject the notion that dogma has not only been an approach our Government has taken but previous Governments as well.

"It's a bit of a slap in the face for our very strong institutions that spend a lot of time and effort collecting data, and analysing it."

In his time as Associate Justice Minister (10 months) "all of our decisions were driven heavily by data".

That's a contrast to the case made in Gluckman's report. He cited evidence showing "successive administrations on both sides of the political spectrum" were "encouraged by vocal, professional lobbyists".

It's a phenomena dubbed "penal populism", also seen in Britain and United States, where "politicians offer vote-winning, simplistic solutions for selected law-and-order problems".

Choices made - not on evidence - led to rocketing prison costs and prisoner numbers but no sign of a safer public or crime rates falling.

Mitchell says: "This is my own personal view, it's too much of a simplistic and easy view to take that it's just populism. It's not actually populism - it's people need to be safe.

"Most people aren't going to engage and dive deeply into the data. They're going rely on the legislature making good decisions to keep them safe."

The idea of "feeling" safe might be "emotive", he says. "There's nothing wrong with having emotive feelings. It's always going to be the responsibility of the Government that they are doing the best that they can to keep good, law-abiding citizens and communities safe."

Waikeria Prison - currently the focus of a proposed
Waikeria Prison - currently the focus of a proposed "mega prison" able to contain 3000 inmates.

He rejects the idea "penal populism" led to policy which has done more harm than good.

"We don't have an alarmist culture at all. But we do have a society that is driven by and wants to make sure that everyone including our most vulnerable are safe and protected."

Asked if jail works, Mitchell says it is "necessary in terms of making sure first and foremost communities remain safe and people remain safe and aren't exposed to violence, in particular".

But he does say more work needs to be done on rehabilitation and reintegration, so prisoners can "engage in a positive way with communities and rebuild their own lives".

He says he doesn't have an ideal prison population. "In my view, the numbers will take care of themselves once you start addressing the real drivers of crime.

"To me the real challenge to us is around social investment and trying to make an intervention much earlier in people's lives to keep them out of the criminal justice system.

"That's going to be the real test of us as a country, as a nation, in the coming decade is to be able to focus in on that and make a genuine change in the way we do things."

Mitchell supports the bail reforms that sent prison numbers skyrocketing and opposes any reduction. "I think that is actually working for us."

Asked if he would make them tougher and reduce risk further, he says: "The current laws have reduced that risk significantly.

"You can never completely remove the risk. We're human beings and so it would be naive and dishonest to say you were releasing someone where you had 100 per cent removed the risk.

"But you can certainly put your hand on your heart and say we have a very high level of confidence this person is going to take the opportunity and the chance to be a positive member of society."