“Contrasts in Tolerance” in a Single Jurisdiction

• Published date: 01 September 2013
• Author: Nessa Lynch
• Date: 01 September 2013
• DOI: 10.1177/1057567713498094
• Subject Matter: Articles

Article

‘‘Contrasts in Tolerance’’

in a Single Jurisdiction:

The Case of New Zealand

Nessa Lynch

1

Abstract

There is considerable literature on the causes of punitiveness in late modern society. Penal tolerance

and its causes are less well studied. Both studies of punitiveness and tolerance have relied on analysis

of single jurisdictions across time, or comparatively across jurisdictions. New Zealand offers a

perhaps unique case study of a jurisdiction that hosted a tolerant and progressive youth justice and a

punitive adult justice system in the same time period. This article considers three factors that have

operateddifferently in eachsystem to promote punitivenessor tolerance inthe two decades from 1989.

These are the mode of legislative and policy development, the participation of victims of crime in the

criminal process,and how legislation and policy are implemented by professional decision makers.

Keywords

comparative crime/justice, crime policy, courts/law, juvenile justice

Introduction

Roberts remarked in 2003 (p. 249) that ‘‘although vast, the international literature on sentencing

reform has to date paid scant attention to developments in New Zealand’’ (see also Brown & Young,

2000). The adult criminal justice system has attracted considerably more comment since as an exam-

ple of punitiveness (Cavadino & Dignan, 2006; Lacey, 2011; Pratt, 2007, 2008a; Pratt & Clark,

2005). This punitiveness is symptomized by high rates of incarceration and reactive law making

which has expanded both front-end and back-end measures in response to crime. Conversely, the

New Zealand youth justice system has been well known in the literature since at least the early

1990s (Hudson, Morris, Maxwell, & Gallaway, 1996; Maxwell & Morris, 1993). The youth justice

system has been described as progressive and tolerant, particularly in relation to the development

and use of noncustodial, diversionary, and culturally appropriate measures in response to youth

offending (Muncie, 2001). In a companion article (Lynch, 2012a) and more broadly in a recent book

(Lynch, 2012b), I briefly considered this paradoxical contrast as context for analysis of major leg-

islative reform of the youth justice system which took effect in late 2010. (The year 2008 marked a

1

Victoria University of Wellington, Wellington, New Zealand

Corresponding Author:

Nessa Lynch, Victoria University of Wellington, PO Box 600, Wellington 6011, New Zealand.

Email: nessa.lynch@vuw.ac.nz

International CriminalJustice Review

23(3) 217-232

ª2013 Georgia State University

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DOI: 10.1177/1057567713498094

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change in youth justice policy after the election of a center-right coalition government, which had

youth justice reform as a key element of its electoral platform, Lynch, 2012a.) There, I suggested the

youth justice system is now ‘‘playing catch-up’’ with the more punitive adult system. In this article,

the question of how and why a small jurisdiction could host two such different systems will be fully

considered through a retrospective analysis of the almost two decades from 1989 to 2008. There are

three principal parts to this discussion. The first will consider the drivers of punitiveness and toler-

ance, and emphasize that commentators have overwhelmingly focused on punitiveness and its

causes and on developments across time in a single jurisdiction or comparatively across jurisdictions

in a specified time period. The second part will analyze the New Zealand context, tracing the courses

taken by the adult and youth systems and discussing factors that have influenced the orientation of

each system. The third part zeroes in on three factors that have operated differently to influence the

respective systems toward punitiveness or tolerance. These are the mode of legislative and policy

development, the participation of the victim of the offence in the criminal process, and how legis-

lation and policy is implemented by decision makers within the system. It is argued that consider-

ation of the New Zealand situation offers a perhaps unique opportunity to consider drivers of

tolerance and punitiveness within a single jurisdiction in a specified time period. In particular, this

case study should facilitate finer analysis of factors promoting tolerance and contribute to the ques-

tion of whether law reform of itself can promote penal tolerance.

Punitiveness and Tolerance

There has been considerable comment on the subject of punitiveness in late modern society (Gar-

land, 1996, 2001; Pratt, 2007). Commentators have identified the prevalence of what is variously

described as ‘‘populist punitiveness’’ or ‘‘penal populism.’’ The term populist punitiveness coined

by Bottoms (1995, p. 40) conveys the notion of politicians ‘‘tapping into, and using for their own

purposes, what they believe to be the public’s generally punitive stance.’’ Its synonym ‘‘penalpopu-

lism’’ is defined by Pratt (2007, p. 12) as arising where

...criminals and prisoners are thought to have been favoured at the expense of crime victims in partic-

ular and the law abiding public in general. It feeds on expressions of anger, disenchantment and disillu-

sionment with the criminal justice establishment [emphasis in original].

Similarly, Cavadino and Dignan (2006, p. 437) note the:

unprecedented politicization of punishment ...politicians have vied to present the voters with tough,

populist and high-profile positions on ‘law and order’, aided and abetted by popular media which sen-

sationalize crime and portray penalties as excessively lenient and an increased harshness as the effective

response to crime.

There is a sizable body of literature on the causes of such punitiveness. Certain commentators

have sought to explain the rise of punitiveness in specified jurisdictions across the temporal axis

(Roberts, Stalans, Indermaur, & Hough, 2003). Pratt and Clark (2005) conclude the drivers of puni-

tiveness in New Zealand to be (long term) a homogenous society and (more recently) neoliberalism,

and the cumulative effect of populist lobby groups, a crime-obsessed media and the politicization of

crime, particularly victimization. Newburn (2007) posits that punitiveness in England and Wales

was driven by neoliberalism (see also Reiner, 2000) and political parties seeking to make electoral

capital from a ‘‘tough on crime’’ approach. The politicization of penal policy and the rise of neoli-

beralism and deregulation have also been identified as a cause of the ‘‘stratospheric’’ (Pratt, 2011)

contemporary imprisonment rate in the United States (Tonry, 2004; Wacquant, 2010; Whitman,

218 International Criminal Justice Review 23(3)