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What ACT’s Jamie Whyte could learn from Albert Einstein

In a remarkable coincidence two Essex district court judges are arrested on the same night for riding their bicycles without lights. On the following morning they turn up at court to answer the charges.

“Well, this is bloody embarrassing,” says Judge Brown. “How are we going to handle it?”

“Oh, I don’t see any problem at all,” says Judge Green. “You can hear my case and I’ll hear yours.”

“Brilliant!” says Judge Brown. “I’ll judge your case first.”

Judge Green takes his place in the dock.

Judge Brown: You are charged with riding a bicycle at night with no lights. How do you plead?

Judge Green: Guilty, your honour.

Judge Brown: Very well. Fined five pounds. Stand down.

They change places.

Judge Green: You are charged with riding a bicycle at night with no lights. How do you plead?

Judge Brown: Guilty, your honour.

Judge Green: Very well. Fined ten pounds. Stand down.

“Hang on,” says Judge Brown. “I just fined you five pounds for the identical crime.”

“I know,” Judge Green replies, “It’s a deterrent sentence. There’s far too much of this going on. This is the second case we’ve had today.”  

I was reminded of this old joke by the announcement by ACT leader Jamie Whyte that the party’s three-strikes policy will now apply to burglaries as well as violent crimes. Three convictions for burglary will now earn you a sentence of three years in jail. A deterrent sentence.

I understand that Dr Whyte is a philosopher. I studied Logic and Metaphysics (really just a posh word for Philosophy) myself at university and, from observing my fellow students, formed the conclusion that logic and metaphysics might be mutually exclusive.  The philosophy students weren’t that good at thinking clearly or rationally. Dr Whyte’s latest announcement does rather seem to support that cynical view, though he has shown remarkably good sense on the issue of decriminalising cannabis.

There are several problems with deterrent sentences.

The first is that they don’t work. At least not with the people they are meant to deter. For a deterrent sentence to work, a person about to commit a crime has to be aware of the likely sentence, assume that he or she will be caught, arrested and convicted, and decide that the risk isn’t worth the gain.

This works reasonably well with law-abiding citizens like you and me who would really like to drive our new BMW at 180k on the motorway, but are deterred by the thought of being arrested, appearing in court, receiving a hefty fine, losing our licence and having our names published in the newspapers and maybe on the telly.  People like us are good at thinking and considering the consequences of our actions.

In general the people we call ‘criminals’ aren’t particularly good at thinking or weighing the consequences of their actions. The burglar won’t  put down his jemmy to consider Dr Whyte’s increased penalties for burglary. He doesn’t think, “Hmm. I’ve been banged up twice already for nicking stuff from people’s houses. Previously I might have got 18 months, but now I’ll get three years. I really don’t think it’s worth the risk. I’ll go and get a job instead.”

Leaving aside the burglar’s chances of getting a job with two convictions under his belt already, he’s unlikely to go through this process of considering the length of sentence he’ll get for a third offence. By definition, recidivist criminals aren’t good at learning from their mistakes. So our burglar is more likely to think: “I’ve done 30 burglaries, got nicked twice, not a bad average. And I probably won’t get nicked again anyway. I’m better at it now. Learnt a lot in the slammer.” The near total failure of the New Zealand police, who are brilliant at catching murderers, to catch burglars might suggest that he has a point.

But if our friend does get caught and sent to prison for three years, what will that achieve?

Well, our daily prison muster rate is the second highest in the Western World  and already challenging our ability to house all the people we give prison sentences to, will swell and with it the financial cost to the nation. The Prime Minister agrees. He says, “Chucking people in prison is a very expensive way to go, and it can be a nursery for teaching people to become more effective criminals.”

Dr Whyte  argues that the extra cash will be more than be made up for by the money saved from all the burglaries our friend can’t commit during his prison lag. Just where that money from un-stolen goods in un-burgled houses is and how it gets into the government’s coffers I’m not quite sure. Perhaps the philosopher can explain.

And then there’s the problem of what happens when our burglar has completed his third lag. The chances of him having saved any money from the pittance a prisoner can earn are about as lean as the chances of him getting a job. So it’s back to the jemmy and the lock-pick.

Albert Einstein once observed: “Doing the same thing over and over again and expecting a different result is a definition of stupidity.” This is the problem with advocates of harsher prison sentences for offenders. Like the people they want to incarcerate for longer and longer terms, they seem to have limited ability to think, to learn from experience or to predict the consequences of their actions.  Other than keeping incorrigible violent offenders away from society, heavier sentences do little to reduce criminal offending. Advocates of such penalties are like the man who pours a bucket of water on a fat fire in his kitchen and ends up burning down his house. He concludes that clearly the problem was ‘not enough water’.

In the best traditions of an Association of Consumers and Taxpayers, Dr Whyte presumably places equal importance on crimes against property as on crimes against the person. Tradition is on his side. The earliest laws were almost exclusively  concerned with offences against property. You could beat your wife or children with impunity, but a maid could be bundled off to the prison colonies of Australia for stealing a handkerchief, a thief hanged for stealing a sheep. Ah, the good old days!

And then there’s the question: which New Zealanders will end up earning the three strikes? Among the commonest causes of criminal offending are social deprivation, poverty,  unemployment, poor educational achievement, substandard housing and being raised against a dysfunctional or violent family background. Colonised peoples across the globe tend to be over-represented in these areas.

Dr Whyte must know this. He must know that Maori are already massively overrepresented in our prisons:15 percent of the population, 51 percent of inmates. So he must also know that his new three strikes law will almost certainly serve to increase the numbers and proportion of Maori in our prisons. I don’t think that’s a good idea.

But then, Maori are people, not property. I’m not a philosopher of course, so I’ve probably missed something.

And finally, back to Judge Brown and Judge Green. There’s quite a serious point in this silly story. When a judge increases an offender’s sentence ‘as a deterrent to others’, the extra months or years he imposes are designed to prevent entirely hypothetical future offences of the same type. The offender is thus being punished not only for his own crime but for the notional future crimes of others. It clearly doesn’t pay to be the second person in court charged with riding a bicycle without a light.

And by the way. Judy and I were burgled in the middle of the night in our Herne Bay home. The burglars  were disturbed (by Judy!) and only got away with my laptop. So I agree with Dr Whyte that this is not merely a frightening but an emotionally traumatic experience. The cops were lovely but told us that they didn’t have a snowball’s of catching the offenders. If they ever do catch them, I would argue against sending them to prison, even if it was their third offence. Yes, I lost all my emails and, worse, my family photographs, but it’s only a bloody laptop for god’s sake. Not worth taking away three years of someone’s life.

But then I’m not in the business of trading votes for people’s liberty.

Media trainer and commentator Dr Brian Edwards posts at Brian Edwards Media.

Comments and questions

So it's stupidity if politicians do the same thing more than once, but burglars can offend repeatedly without receiving the same negative evaluation. Bizarre logic! This just gives the left wing a bad name.

Brian was being too polite about the causes that drive burglars. Some criminals don't just come from deprived backgrounds, they are stupid. They genuinely lack the ability to reflect and think of others. If they were middle class they would be championed as having special needs.

Are you deliberately ignoring the biggest political news of the day Brian? Who cares what Whyte does? The bigger news is the implosion of the Labour Party, but I assume you just can't bring yourself to put pen to paper on that topic?

Let all the Usual Nat apologists bray Shane Jones!Shane Jones! the sky is falling on Labours heads! And the rest of us will read more interesting news like this.

Ever had you house burgled? I have - twice. I wouldn't worry too much about locking up 3rd time offenders, but I'd rather see them shot!

Locking up people who are known thieves and violently invade peoples' homes can only be a good thing. Even if there were not a deterrent effect then having them behind bars deters them from burgling houses pretty well.

And the price of keeping them behind bars? Pretty cheap compared to the damage that a recidivist criminal would do whilst not locked up. But yes, it should be cheaper; however the unliberal left believe that the rights of criminals exceed those of victims and so force prisons to be an expensive option.

As for the overrepresentation of Maori in prison; perhaps instead of advocating "not locking up Maori" as a solution a better one would be for Maori groups to use the billions of dollars stolen from us in Waitangi never quite settlements to research why such a large percentage of their population appears to get attracted to criminal behaviour.

Personally I favour the court deciding what punishment should fall on a convicted person, they know all the facts of the crime and person/s involved, it is the court that should have the option of sentencing, from pardon to death including everything in between, such as rotan, castration and jail.

To put it succinctly Brian, evidence-based public policy?

A challenge for the intrepid reporter... How much money is spent employing how many people to care for how many criminals in NZ? compare with How much money is spent employing how many people to care for how many students in NZ?... surely education must be a better investment then regulation??

Mind you - that does assume an effective educations system...

Dr Edwards’ main error is best exposed by asking why he does not promote the removal of all penalties for burglary? That is the apparent implication of his reasoning.

His tone is generally smug. That is merely irritating. But he oversteps the mark with the idea he finishes on, that I am trying to buy votes with people’s liberty. I honestly believe that penalties reduce crime and that the benefits of increasing prison sentences for repeat burglars will exceed the costs. Dr Edwards may disagree. But he should not accuse someone he has never met of aiming to imprison people for no purpose other than to become an MP. It is an outrageous accusation.

More illogic from Dr Whyte, compounded by misrepresentation. Nowhere in my post do I propose that there should be no penalty for burglary or for any other crime. The thrust of the post is that there is almost no evidence that putting offenders in prison rehabilitates them and that endlessly repeating the same unsuccessful remedy for a problem isn't very intelligent. We need to come up with a better remedy, which may involve temporarily removing the offender from society, but where the emphasis is on rehabilitation not on punishment.

If he is to have a career in politics, a prospect almost guaranteed by National's rort of the MMP system, Dr Whyte may have to grow a thicker skin. He's offended by my suggestion that in proposing an automatic three-year jail term for a third burglary conviction, his primary motivation is to win votes and get elected.

I'm by no means the first person to publicly make that suggestion which, along with his response, has already been widely canvassed in this publication. That response apparently included him saying, 'Populism? I certainly hope so.'

Nor is Dr Whyte the first politician to be accused of riding the 'stricter penalties' bandwagon to win votes and gain election to parliament. It is one of the commoner election strategies employed by both Left and Right and has been for decades. Back in 1972, when I stood for parliament myself, Norman Kirk was wooing voters by promising to get tough on gangs. A lovely cartoon by Eric Heath in The Dominion depicted Kirk holding a small net marked 'gangs' and an enormous net marked 'votes'.

Finally, I can't see the relevance of my not having met Dr Whyte to the issue. A bad idea is a bad idea regardless of the character of the source.

Without wishing to weigh in on the merits of 3-strikes in application to burglary, as I've certainly not run cost-benefit analysis on it, I would like to point out that Joanna Shepherd's work in the US strongly contradicts Edwards' argument that criminals do not weigh mandatory minimums and strikes when deciding on offending. She found that California's 3-strikes legislation was associated with decreases even in first-strike offending: the expected returns to criminality decreased.

I'd discussed this a few years ago when the general 3-strikes policy was discussed and implemented:

I still need to set an Honours project someday checking whether the current legislation has had the effects I'd have expected:

Given that the United States has by far the highest number of people in prison per head of population in the world, it would seem that not too many offenders are weighing matters as carefully. as this study suggests.

After 3-strikes came in in California, there were fewer first offences committed among those on the strike list (and a few more offences among those not on the strike list): it seemed to deter even first offences.

I'll quote here from Shepherd's piece: "During the first 2 years of the legislation, approximately eight murders, 3,952 aggravated assaults, 10,672 robberies, and 384,488 burglaries were deterred in California; however, larcenies increased by 17,700 during this period."

Post 3-strikes, some potential criminals moved out of California, others moved out of crime, others shifted into offences that weren't on the strike-list, and some ignored the legislation. The net effect was a pretty substantial drop in crimes on the strike list.

This says nothing about what the incarceration rate should be, or whether there might be even more effective options that weren't explored. Nor does it say that this proposal would pass cost-benefit analysis. I am only contesting your point that criminals do not respond to incentives. Some particular offenders might not, just like some particular people won't change how much they drive if the price of petrol went up to $5/litre. But Shepherd's evidence pretty clearly shows that things like 3 strikes are taken into account by criminals, or at least in the aggregate.

Having lived in California I got to see a myriad of cases that exposed the criminal injustice of three strikes laws. I still remember a man going to jail for the rest of his life because he stole a loaf of bread ( only one of the two previous "strikes" was for violent offending). That is injustice and a huge waste of tax payers money, but it suits the Prison Industry and their lobbyists perfectly. Am I correct in presuming the ACT is funded from pro prison industry groups? So much for libertarian principles.

Again, I'm not arguing justice, injustice, or efficiency. I am pointing out only that one of Edwards' main claims, that criminals do not respond to things like three-strikes, is inconsistent with the best available evidence on the effects of three-strikes in California.

Why does it have to be the case that folks who think something is unjust have to go and pretend that the policy also doesn't work? Effectiveness should be evaluated on its own grounds, then used as input into whether we want to do something or not. For a long time, I thought that capital punishment was effective AND unjust; I opposed it despite reckoning that it saved lives. I've changed my mind on it since seeing better evidence on effectiveness: the stats aren't robust enough to think that it's effective. But you should always be open to the possibility that some policy is effective, but just not worth the cost on other margins.

The link indicates New Zealand is 74th of the listed countries. The listing makes no attempt to adjust for differential rates of reported criminal offending per head of population. In New Zealand, imprisonment is imposed for offending, not in order to achieve a "correct" rate per head of population regardless of conduct. It appears that you are a quota supporter on matters of imprisonment, however, which leads to your concern that the current racial proportions are inappropriate, although the remedy is unclear - is it more of other races to be imprisoned or a sinking lid policy on imprisoning Maori?

Brian Edward's idea of rehabilitation is to give the offender a big bear-hug and say "All is forgiven". Frst-timer or incorrigible recidivist, makes no difference to him.

What simplistic illogic one has come to expect from the right. I would put in to you that Brian Edwards would rather have the prisons full of dangerous violent criminals that get released because all the space is occupied by non violent drug and burglary offenders. And why is their such a low incarceration rate for White Collar criminals who do far more damage to people than the local purse snatcher. Oh yes they belong to the "better" class and prison should be only for poor people and people of colour. Home detention for us in a Mansion I say!

Most politicians think through policy as far as to how it affects the ballot box.

Most potential leaders like Jamie White think through policy as to how it will affect NZ citizens and New Zealand in the long run.

Interest free student loans won Helen Clark an election but now we have a $15 billion nightmare. A classic example.

Brian you were trying to have a cynical crack at Jamie White but struggling to find an issue of any substance.

To lose your family photograph collection and say 'it's only a laptop' is remarkable. I doubt that many would see it that way. As when burgled, it's not the loss of your TV set and other toys - it's the invasion of your life; your privacy.

Brian Edwards’s position is that people who commit crime, mostly poor and disproportionately brown, are too stupid to weigh the risks and rewards.

They will not put down their jemmy to consider the risks of their actions, says Dr Edwards.

Well, why not?

It seems those who steal are not like Brian, who consider carefully the risks of his actions; they are little better than a puppy who barks at the wind.

This is of course utter rubbish, I know better than most.

Poverty and an inclination to crime does not equate to stupidity. His own straw man criminal can consider the low risks of getting caught, it seems, but not the impact of a longer sentence.

Brian Edwards: "Yes, I lost all my emails and, worse, my family photographs, but it’s only a bloody laptop for god’s sake. Not worth taking away three years of someone’s life."

Would you be so charitable, if Judy was badly bashed in the course of disturbing the intruder? I'm guessing, you would want him strung up by his nuts and flayed with a barbed wire cat o nine tails.

Brian - if you believe that sentencing decisions should be out of the hands of politicians and entirely in the hands of judges then are you advocating that laws banning capital punishment to be ripped up? Should judges be able to ensure that sex offenders are castrated if they think that is the best option?

Or is it that you think that in some circumstances restrictions in sentencing decisions are valid - just not when they are proposed by people whose politics you disagree with?

I have been visiting men in prison for over 20 years and have followed this debate with some interest. There are several issues that have not been canvassed. The first is the effects of alcohol and drugs which diminish inhibitions to offend. Talking to a group of child sex offenders recently I was told that alcohol was a factor in 100% of cases. This therefore makes it questionable whether more punitive consequences will really make a difference.

The other matter is how to deal with the very high re-offending rate. Present penalties are not working in too many cases, so the challenge is to find new solutions for old problems. Fortunately there are some encouraging results from the Canadian initiative of Circles of Support and Accountability. A study conducted by a university professor in Vermont showed that after three years the re-offending rate dropped to 5% when released prisoners were in a circle.

To their credit Corrections in NZ have started to use this solution, and it is now being extended by community agencies to support all types of offender after release. This has the potential to be an immense win-win for all concerned. The community benefits from fewer victims. The taxpayer wins by having fewer people locked up at $102,000 per year. Corrections wins by having to manage a smaller muster. The prisoner's family wins by having a rehabilitated and reintegrated member back and behaving well. The released prisoner wins his/her liberty.

Forget the politics, the philosophy, and the point scoring, do something positive and be a mentor for people who in too many cases have been abused since childhood, are damaged from drug and alcohol used to escape their situation, and sometimes have mental health issues resulting from their awful past. The American research showed that those who mentor also benefit from the experience, so it is not just a matter of doing one's duty.

Dear me. It does appear that other than winning votes, most people's support for "three strikes" seems simply to be motivated by revenge. How ignoble the human spirit has become (and by the way - I have actually been burglarised three times).

Surely you were simply burgled?

As for motivation, I disagree. Seems to me most people are motivated by desire to avoid having their homes, property and possibly their safety violated.

The issue is simply whether it will work. An ounce of empirical data is worth a tonne of speculative theory. So far I've seen more evidence quoted that it does work than the reverse.

Sam, did you mean you have been turned into a burglar three times? Or have you simply been burgled three times?