BUYING JUSTICE:
Stephen Franks has jumped on the
Weekend Herald's 'people shouldn't be able to buy justice' bandwagon. This isn't something I usually have a great deal of time for: it's sensible to take offers of reparation into account in sentencing. But today I thought he had a point.
It wasn't this:
"No one should be able to expect to buy a reduced sentence. Rather, they should know that if they have the means, yet have not offered amends, the sentence will be harsher."
Superficially this seems reasonable, but it doesn't actually avoid the buying justice problem at all: reparations still 'buy' you a lower sentence than you would otherwise get; it's just that under Mr. Franks' preferred scheme you start from a higher baseline. In other words, it's simply a disguised call for tougher sentences. (There are of course valid arguments in favour of tougher sentences, but if you want them, you should argue for them explicitly, not by sleight of hand.)
It was this:
"these offers [should be] enforceable as court orders, and [we should] allow judges to fix a higher sentence to be served if the criminal renege[s] on the offer."
It seems fairly obvious that if reparations are to be taken into account in sentencing, we should at least attempt to guarantee that they're paid. Nonetheless, while Franks' suggestion may ultimately be right, the issues are a little more complex than they first appear. For starters, we don't actually know the number of offers that are reneged on: the figures quoted by the Herald - that 15% of reparations are never paid - include both sums offered by offenders and sums ordered as reparation by the courts. I suspect that the latter, which are already legally enforceable, constitute the larger part of this, so Mr. Franks suggestion may not make a great deal of difference here.
Moreover, while one would think that anything that reduces the percentage of reparations not paid out would still be a welcome change, this isn't necessarily true, if it simultaneously manages to shrink the overall pool of money being offered. Even if offenders would ultimately be able to pay a particular sum, they may be less willing to offer it if they know they can be made legally accountable for failure to meet their obligations (and given an even higher sentence than they would have originally attracted.) If this effect outweighs the that of a reduced default rate, then we might actually be worse off making reparation offers legally enforceable. Whether or not this would be the case depends upon a number of factual assumptions, but they're not completely implausible ones. (I got a bit mathsy and decided to try to demonstrate this more formally below. But it's as much for my own edification as anything else. Feel free to ignore it.)
Addendum: Boring Maths
I assume the following.
(a) The percentage of reparation offers not currently paid is about 10%.
(b) The percentage of offers that would still not be paid even if the offers were legally enforceable is about 2%
(c) The likely reduction in the amount of offers made as a result of their being legally enforceable is about 10%
(d) We value alternative punishments (such as longer jail sentences) for people who don't pay at about 80% of the value of the the reparations.
(e) In about 20% of cases where reparations are offered but not paid, it isn't feasible to impose other sentences (e.g. because the only option for the paticular type of offence in question is a fine anyway).
The value of the alternative punishment/reparation regimes can be approximated by something along the lines of the following equation:
U = R + 0.8A
where R is the amount of reparations paid, and A is a measure of alternative punishment meted out (discounted for the reason given in (d) above.)
Un is the situation where offers are not legally enforceable; Ue is the situation where they are.
The amount of reparations paid, R, is determined by the following equation:
R = Q*(1-d) ; where Q is the total amount of reparations offered and d is the default rate on these offers.
Under scheme n:
Qn = 100, dn = 0.1, and An = 0
giving
Rn = 100*(1-0.1) = 90; and
Un = 90.
Under scheme e:
Qe = 90, de = 0.02, and Ae = 0.8*(Qe*de)
thus:
Ue = 90(1-0.02) + 0.8*[0.8*(90*0.02)] = 89.351
As Un > Ue, on this utilitarian style approach, leaving the rights unenforceable would be a better solution. It's tight, and the assumptions that lead to it are far from watertight, but the point is not that Franks is wrong, just that he's not obviously right.
NB: This obviously doesn't take account of distributional concerns. We may think it's better that some victims who get something under scheme e (as opposed to nothing under scheme n) is worth the overall reduction in what the rest get. But this will also depend on how many offenders no longer offer to pay any reparations at all as a result of them becoming legally enforceable.
THE SAGA CONTINUES:
Kiwi Pundit reckons that the Privy Council's preference for upholding individual rights against government meddling, and thus his preference for the Privy Council, isn't about ideology. Instead, he claims it's based on the well-established legal principle that:
"we should be free to act as we please unless the law says otherwise, [which] is not connected with any particular ideology that I am aware of."
While it's a nice try, I don't think he quite manages to extract himself from the charges of hypocrisy I levelled against him
previously. Here's why.
Kiwi Pundit's case relies on the truth of two propositions:
(1) that the 'freedom to act' principle (F) isn't based on a particular ideology; and
(2) that Privy Council decisions he likes (because they protect individual rights) are justifiable on the basis of (F) (or, to put it another way, that (F) protects individual rights).
If either is false, then it seems difficult to escape the conclusion that Kiwi Pundit's Privy Council fetish is based on ideological bias. The problem (for him) is that they're mutually exclusive: he can either advance a non-ideological version of (F) that doesn't protect individual rights; or he can protect individual rights by adopting an ideological version of (F); but he can't do both. (The impression that he can arises out of ambiguity in in his use of word 'law'.)
In one sense of course, Kiwi Pundit is right that (F) is not connected with any particular ideology. On this version of the principle, "we should be free to act as we please unless
either legislation or the common law says otherwise." However, it is difficult to equate this with the protection of individual rights. If (F) allows judge-made common law to legitimately infringe individual rights, it cannot provide any independent reason why judges should favour rights protection. Any independent preference for rights protection must therefore be based on ideology.
Kiwi Pundit tries to get around this by adopting an alternative form of (F), under which "we should be free to act as we please unless
legislation says otherwise." This appears to save (2) because it seems to allow infringements of individual rights only when these have been debated by Parliament. In fact, it doesn't even accomplish this much: the principle that 'we are free to act unless legislation says otherwise' would allow individuals to breach each other's rights where Parliament has not legislated to prevent this. (It would, for example, require the abandonment of tort law, and allow us to negligently injure others without being obliged to pay any damages at all - let alone exemplary ones.)
Moreover, even assuming that this version of (F) can save (2), it can do so only by adopting a particular ideological stance: saying that only Parliament should be able to impair individual freedom creates (surprise) an explicit bias in favour of individual freedom. Kiwi Pundit tries admirably to dress this up as a bias in favour of democracy, claiming that allowing judges to infringe such freedom reduces democratic accountability. But it's not particularly convincing. Parliament can always pass laws to overrule judicial decisions if it wishes, just as it can pass laws to overrule individual rights. The only thing that changes is whether the the default position is more or less libertarian; neither solution is any more or less democratic.
THE ON-GOING SAGA OF THE SUPREME COURT: Kiwi Pundit has an
extensive post today on the Privy Council issue. It's worth a read. He agues that we should both:
(1) create a extra judicial layer in between the current High Court and Court of Appeal (instead of a new Supreme Court above the CA); and
(2) at the same time retain appeals to the Privy Council.
The first suggestion is a fair one, which I essentially agree with. For the reasons Kearney sets out, I think it would be preferable to a new Supreme Court, (though I'm willing to wear a new Supreme Court if that's what it comes to). It does however, seem a little inconsistent with two other claims he's made.
(a) That the
cost of the Supreme Court is unwarranted. If this is the case, then why is the cost of an extra appellate layer below the Supreme Court any different?
(b) That as a result of introducing an extra layer, we'll end up with law graduates filling the benches of the District Court. Now, I think this suggestion is somewhat absurd to begin with, but if Kiwi Pundit really thinks this, then can he please explain how his proposed new tier will avoid this problem?
The more interesting point is the combination of this proposal with the retention of appeals to the Privy Council. The reason: Kiwi Pundit doesn't trust our Court of Appeal, and wants the security provided by the Privy Council as an added backstop against their bungles.
He rejects
my earlier argument that the Court of Appeal's failings are largely due to structural factors, claiming that they are not overworked compared with other appeal courts. I think he's stretching on this one. He argues that the US Supreme Court workload is far higher than suggested by the 79 appeals they disposed of. Fair. But the Court of Appeal's workload is also far higher than the 737 appeals they disposed of: include other orders in the NZ statistics and the numbers double. I specifically excluded such orders from my statistics in order to keep them roughly comparable. He also argues that many Court of Appeal judgments require little more than a short unanimous opinion. Fine. But does this really account for the entire disparity of
658 cases?
Kiwi Pundit does have a point: statistics can be misleading. This suggests that we should perhaps listen to judges who have sat on both the Privy Council and the Court of Appeal, and have stated unequivocally that they think the NZ Court of appeal is overworked, and that this affects the quality of their judgments.
In any event, after reading Kearney's post it becomes clear that his true concern is not the 'quality' of New Zealand judges in any impartial sense, but the fact that Privy Council decisions generally accord better with a particular ideological bias:
"The Privy Council consistently shows a respect for the rights of individuals ... The Court of Appeal ... is less willing to uphold individual rights ... the Supreme Court proposal will accelerate the NZ judicial trend away from individual rights and towards increased government power."
If this is the real reason for favouring the retention of the Privy Council, it begins to seem somewhat hypocritical to accuse Margaret Wilson of stacking a new court with judges of her own ideological persuasion, when all Privy Council defenders are really doing is trying to ensure that it remains stacked with judges of theirs. Dressing one up as 'quality' while dressing the other down as political manipulation is simply disingenuous, and only serves to emphasise why we should bring our highest court home.
Once it is accepted that judges are not simply impartial arbiters, but are in fact engaged in making 'political' decisions, it follows that those decisions should reflect the desires of the people that are affected by them, not those of judges sitting in another country. The judges appointed to our highest appellate court should be broadly acceptable to those across the poltical spectrum, but that political spectrum should be New Zealand's, not Britain's.
