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.