Fabian Mika’s lawyer is appealing Mika’s manslaughter sentence, suggesting his cultural background and upbringing should have be taken into account as a mitigating factor in sentencing.
It looks like this is being met with the predictable outrage when anyone notes there’s still ethnic inequality in NZ, coupled with the usual panic whenever someone suggests people’s lives are more complicated than just personal choice.
The judges are no doubt right to point out the logistical difficulties of the lawyer’s idea. Nonetheless, the lawyer’s argument touches on a serious problem with punishment/the ‘justice’ system in general: it only responds to individuals for their individual choices. But no individual choice happens in a vacuum.
The justice system doesn’t deal with the wider social determinants of individual choices. In many ways, it can’t: it falls outside of the justice system’s purview to deal with (for example) economic inequality, the chief cause of high violent crime rates.
But the ‘justice’ system should at least acknowledge that these social determinants are very much unequal from one person or group to another.
You can accurately predict from someone’s class, ethnicity, or family situation that they’re a lot more likely to end up in jail than I am. (Or more likely to have a partner or parent in prison). That’s not fair, and it’s not chosen.
Yes, convicted criminals have made choices, I’m not denying that. But the social determinants of crime and punishment are true too, and too often we deny that.
One of the first lessons you learn studying criminology is that if you’re disadvantaged in society in general, you’re also disadvantaged at every stage of the crime and punishment process:
– examples of crime vs. other examples
– opportunities for crime vs. other opportunities
– likelihood of being in extreme need
– laws and definitions of crimes
– types of crimes you’re likely to commit
– likelihood of being suspected/pursued by police
– likelihood of being caught
– access to good legal help
– likelihood of being convicted
– harshness of sentencing for your crime
– your specific sentencing
– how you’re treated by society after your punishment
So I definitely think someone’s experiences and social position should be considered among the mitigating/aggravating factors in sentencing. But that only deals with the tip of the iceberg of the problem: socio-economic inequality leading to manifold inequalities in crime and punishment.
According to Section 5 of the Corrections Act 2004, the “purpose of the corrections system is to improve public safety and contribute to the maintenance of a just society” through “safe, secure, humane and effective” sentences, assistance with rehabilitation and reintegration, the best decisions by courts and the Parole Board, and corrections facilities that meet the UN Standard Minimum Rules of the Treatment of Prisoners and other sections of the Act.
The implication is that prison punishment consists of a simple lack of liberty; to meet the standards of public safety and justice, we are taking prisoners out of the community and punishing them by depriving them of a certain degree and amount of liberty, deemed proportional to their unlawful actions. We’re not punishing them with physical violence and psychological humiliation. We don’t do it that way anymore … in theory.
So we know that something is seriously wrong with prisons when sentencing judges have to take into account the high likelihood of physical, sexual and emotional abuse when determining jail terms:
“Transgender prison decision ‘a breach of rights’“, Radio New Zealand News, 20/12/2012
A judge at Whangarei District Court on Wednesday sentenced Glen Cooper [a transgender criminal] to a reduced prison term, because the likelihood of harassment in a men’s jail.
The court heard Cooper had already been attacked in jail while awaiting sentence.
The Department of Corrections said Cooper has not had sex change surgery so must go to the men’s prison.
On National Radio this morning, Kim Workman from Rethinking Crime and Punishment talked about how our prisons have become very secure, but highly unsafe. This Wikipedia article is a good read, making the same points; we have very few escapes or positive drug tests, but troubling figures for prisoner assaults on staff and other prisoners, and for mental health and suicide.
Let’s not let our base, vindictive, foolish, scapegoating punitive instincts get in the way of making prisons safer. When you take away people’s freedom and responsibility to look after themselves, it becomes entirely your responsibility to look after them and keep them safe. Letting prisoners be exposed to abuse and violence can’t do any good, it goes against the legislated role of prisons, and in no way can it be considered just.