Reformation and Deterrence
Modern emphasis in New Zealand, as elsewhere, is on the reformative aspect of punishment. This is most marked in the treatment of younger offenders. Some sentences, notably probation, are essentially reformative, but, except to some extent with fines at one extreme and preventive detention and life imprisonment at the other, reformation is an important element of all penal policy. It is false to see a conflict between reformation and the protection of society. A reformed criminal does not again offend and society is thus protected. Most crime in New Zealand is by recidivists – that is, by those who have already offended. The problem is to balance reformation and deterrence.
Deterrence has two purposes – to stop the commission of a crime and, when a crime is committed, to stop others by example. Some moralists claim that it is wrong to punish “A” in order to deter “B”, but this has found little acceptance in the practice of the Courts. Doubt, however, has been cast by some psychologists on the whole concept of deterrence. Most people obey the law, not because of its sanctions but because they accept it. If a law is not generally accepted it will be freely broken, as happened with land-sales controls in the forties. On the other hand, many who commit crimes do so from absence of forethought or because of self-persuasion that they will escape. Admittedly certainty of detection is needed if even severe penalties are to deter. It is also true that inability to look at consequences is characteristic of most criminals. Others commit crimes when intoxicated, in this country a stock plea by way of mitigation. Nevertheless, it does not follow that penalties have little deterrent value. By crystallising the aversion of the community to particular conduct, they have an important indirect effect. They may help conformity in cases of temptation. Statistics reveal the cases where deterrence fails, but not those where it succeeds. New Zealand history before 1840 and during the gold rushes shows well the value of sanctions that are enforced.
Prevention in this context means the removal of the offender from society. It is closely linked with deterrence, since, for example, imprisonment may deter others while removing the offender from harm's way for a time. This latter purpose is predominant in the sentence of preventive detention, an indeterminate sentence that may be imposed by the Supreme Court after the conviction of a person for a certain number of offences of specified gravity. It involves detention for at least three years, with a maximum of 14, save for sexual offenders, where there is no limit. Release is decided by the Prisons Parole Board, which is required to be satisfied that the inmate is unlikely to offend further.
Although the law exists to protect society, most would agree that there are limits to the means by which this may be sought. “Cruel and unusual punishments” are prohibited by the Universal Declaration of Human Rights, even though they might be effective. Some forms of torture would certainly be regarded as in this class. Likewise, suggestions for castration as a punishment for sexual offences have been rejected. Flogging and whipping are much more controversial in New Zealand. Many who oppose reintroducing corporal punishment (abolished in 1941) do so simply on the ground that it has not been shown to have any special deterrent value.
by B.J.C. .