A TV 3 request for comment on the proposed roll out of a formal warning policy distracted me yesterday into thoughts on the pros and cons of the policy.

Among  the details as the Police explained them to TV 3 are:

“· The offender must be 17 years or over.

· The offence must carry 6 months imprisonment or less.

· Victim considerations must be taken into account.

· Reparation considerations must be taken into account.

· Family violence  and meth possession offending is excluded.

· Over three quarters of all pre-charge warning cases are victimless crimes.

· Offenders are still held to account by arrest, processing at police station and police recording their warning for future reference.

· Allows more time for police to focus on preventing offending and more serious offending.

· Reduces the pressure on the court system.

· A large proportion of offenders for minor offences never re-offend.
· Fewer withdrawals results in improved ratio of successful prosecutions.

· Current delays in the District Court will be significantly reduced.”

My opinion, in summary

The policy is a jug full of excuses for failure.

It seems likely to increase crime, despite the reduction they’ll claim from fewer reported convictions. And not just vandalism and minor anti-social behaviour. The likely cost will be paid in more serious crime. A lesson from countries that have cut serious violent crime is that ending a climate of acquiescence in low level anti-social behaviour works. Targeting trivial offences shows that the law applies everywhere, and has been associated with astonishing reductions in serious crime.

If the warning policy is genuinely confined to trivial infractions, where the courts already avoid significant penalties the new policy may just recognise the revolving door reality. If so there may be little increase in offending. We are already paying the high price of not punishing minor offences promptly and with certainty at the only time when it can be effective, that is at the apprentice stage of a criminal career.

Reduced shame

The new policy could mean less concern by offenders about public identification. Over 17 year olds are usually identified after conviction. Shame is still the biggest sanction against offending in most healthy societies. Under the warning-only policy they will not be convicted.

If the policy sends a new message that the Police don’t care or are too busy to worry about minor offending, it will increase offending over time.  The cases saved from Court could  be paid for many times over in additional cases that must go to court.

A fair comparison may be with the "break off the chase” policy. Once it became known, there appears to have been more willingness to try to escape from Police.

Any policy to reduce crime long term must focus on kids. Once a person has an established pattern of offending there is not much the system can do to cut their offending except lock them up till they reach criminal retirement age – now around 40.

Some stop earlier spontaneously, but sadly there is no proven rehabilitation magic, even if there was all the money people want to spend on “interventions”. Though this policy does not affect kids directly, the message it sends about how offending is perceived will pervade the Police, whether they agree with the policy or not. It reflects the current approach to youth crime. The direction of change should have been the opposite

Background

From my MP period research some countries, the US most notably, have managed to cut serious violent offending very materially, and especially youth violence, while ours is getting worse.

In essence certainty matters most of all. Speed and certainty of punishment are more important than severity. Indeed we could and should have lighter formal punishment for most offending. Reinstating speed, certainty of punishment and shame and its normal social consequences could let us reduce formal penalties.

But when punishment is slow and uncertain it has to be more severe to have any effect at all.

If the population most likely to offend gets conflicting messages and concludes that it is likely to be worth the risk, then crime will keep rising. Great efforts to detect and secure convictions for serious crime, and severe sentences,  could earn NZ nothing more than the notoriety of the worst of all possible outcomes – very high numbers in prison and very high crime rates, with the consequent loss of trust and other costs to the rest of us.

Certainty that crime will not pay must be part of the atmosphere. It can be strengthened in many ways:

a) by a high likelihood of detection (more police);

b) fewer technical defences, and so higher conviction rates;

c) prompt decisions;

d) long sentences; and 

e) the abolition of parole and other chance factors that lead a gambler to think they will duck the price.

It appears that the right atmosphere can also be created and sustained by establishing a law abiding climate (what the literature calls norm observance). Broken Windows policies recognised that people look for cues as to whether they are likely to have to pay a price for misconduct, for failing to comply with “the way things are done around here”.  Graffiti and broken windows and non-enforcement of minor offences give the opposite message (like unpunished littering, casting offensive matter, offensive language, threatening behaviour etc).

The architects of Broken Windows wanted all law to mean what it says. So they urged getting rid of law that was not going to be effectively enforced or punished. The law should be seen to apply and to be enforced, or it should not be law. They chose some apparently trivial offences that could be easily enforced (like law against jay-walking, and begging and littering) to show their seriousness. Others they announced would not be enforced or would be removed.

The stunning outcome of the Broken Windows policies was that serious crime responded much more to the perception in the community about the attitudes to lawbreaking generally, and in particular enforcement of routine minor rules, than it did to dedicated campaigns against serious crime.

It appears also that a major part of the effectiveness of substantially increasing penalties for headline offences might come mostly from what it says about the resolve of those in charge of enforcement. If that message is diluted by contrary signs, (like the new “warnings” policy) all Crusher Collins’ severe sentencing rhetoric could be wasted.

The Police should instead be getting agreement with the Judges and Corrections to send a simple consistent and certain message to young people at the recruitment stage of criminal careers. They should deliberately choose indicator offences that are easy to enforce. The consequences should be almost automatic.

The law should be developed with what is known about offenders in mind. Their common differentiating characteristic is that they seek risk and believe they are better gamblers than the rest of us.

With a formal warnings policy they get another message that the law will not affect them. It feeds the belief they they will beat the odds, already fed by name suppression, long process delays, laughable penalties, discharges without conviction, non-punishment of fine non-payments, concurrent sentencing, no consequences for breaches of community work sentences. They all tell the offender that breaking the law is not really a serious matter.