“Contrasts in Tolerance” in a Single Jurisdiction

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 operated differently in each system to promote punitiveness or tolerance in the 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.

Manifest Injustice? The Judiciary as Moderator of Penal Excess in the Sentencing of Youth for Murder

“…; Ministry of Justice ). Such penal tolerance arises less from legislative design than from practitioner and professional application (Lynch ). Even so, in an example of what James and Jenks () term as a ‘conceptual eviction’, those aged 10–16 years accused of murder will be removed from the youth justice system and tried through a High Court jury trial in the presence of the public and media.…”

“…The youth justice system is described as world leading, characterised by a tolerant and reintegrative approach and delivering diversionary and non-custodial outcomes for the majority of offenders, even those who commit violent or sexual offences (Maxwell et al 2004;Ministry of Justice 2013). Such penal tolerance arises less from legislative design than from practitioner and professional application (Lynch 2013). Even so, in an example of what James and Jenks (1996) term as a 'conceptual eviction', those aged 10-16 years accused of murder will be removed from the youth justice system and tried through a High Court jury trial in the presence of the public and media.…”

“…New Zealand's adult justice system is regarded as a prime example of penal populism, which flourished in the early 2000s due to the electoral system, the effect of populist lobby groups, and sensationalist media reporting of crime (Lacey ; Pratt and Clark ). In an unusual blend of penal populism and penal tolerance in a single jurisdiction, there is considerable conceptual difference between the adult and youth justice systems (Lynch ). The youth justice system is described as world leading, characterised by a tolerant and reintegrative approach and delivering diversionary and non‐custodial outcomes for the majority of offenders, even those who commit violent or sexual offences (Maxwell et al .…”

“…In the youth jurisdiction, the judiciary has acted and innovated to promote penal tolerance for young offenders (Lynch , ), and to insulate young persons from potentially punitive provisions. For example, a 2010 law change permitted the prosecution of 12‐ and 13‐year‐olds for certain serious and persistent offending (Lynch ), but judges reacted by utilising a legislative ‘safety valve’ provision to push these appearances back to the (more evidence‐based) care system, resulting in a fraction of the predicted number of prosecutions (Lynch ). Judicial innovation (such as in the creation of specialised community‐based courts for Māori young persons) has been a factor in the youth jurisdiction remaining relatively immune from penal populism (Lynch ).…”

“…102–4, Sentencing Act 2002). The discussion which follows uses New Zealand as a case study to consider whether, and how, judges would exercise this discretion for young people convicted of murder, in the context of a jurisdiction which combines a highly‐punitive adult justice system and a tolerant and progressive youth justice system (Lynch ).…”