"Boy A" is a powerful film depicting the story of the new life and identity of a released prisoner, Jack Burridge, (named Eric before his release) who was convicted of murdering a young girl when he was just 10 years old. In his new life, he has a stable job, he becomes good mates with his colleagues, and even finds himself a girlfriend, and it seems that his dark past life has been completely forgotten; yet of course, in such an unforgiving society, this bliss was not to last long before his past deeds came back to haunt him. For me, it raised some interesting issues about criminals and the way society deals with them.
One interesting point to consider is whether someone who committed a grave wrong when they were a child should be forced to pay for their sins for the rest of their life. One might argue that even children as young as 10 know that murder is wrong, so for him to have committed it, murderous inclinations must have been part of his nature, and Jack is indeed depicted by the media as innately "evil". Throughout the film, however, the contrary is seen: Jack had a troubled childhood with parents who neglected him when he was most vulnerable, after having been bullied by older schoolboys. Therefore when he meets Phillip Craig, a local rebel who helps him fend off the bullies, he immediately develops an affinity and friendship with this one person who actually cares about his existence, and is influenced by him to start committing petty crimes such as theft in order to enjoy time with his friend at a time when he felt rejected by the world. His descent into crime seems more like a natural progression based on society's rejection, and not based on some inherent evilness inside him.
Thus, having since grown up and been rehabilitated to distinguish between right and wrong in prison, his original good nature is restored, and he is considered by the Parole Board to pose no threat to society. At that point, is it fair to say that this young man, who committed a heinous crime out of immaturity and inexperience, does not deserve a second chance at life? Is the mentality of "an eye for an eye" really appropriate in this context? Some may say that since he deprived the girl of her life, it is only fair that he is deprived of his own; but as they say, "two wrongs don't make a right", so if there is an opportunity to turn him into a useful person, why must society demonise him and do all it can to be rid of him?
Perhaps the most ironic incident in the film is his heroic rescue of a little girl. This guy who once killed a girl now saves a girl, yet it is this good deed that gets published in newspapers which ultimately leads to him being uncovered as an ex-convict. Such an arrangement makes it seem like fate is playing a horrible joke on him; but once again, it is not really fate, but society itself, that has caused this tragedy. It is ridiculous for grown men and women to try to hunt out this young person and kill him because he once committed a crime; they do not care at all that he has since done much good for the community, they just want to destroy him to "keep the community safe". Morally, how much better are these members of the public? They are just as rash, and their murderous inclinations are even more despicable, since being adults they should be able to distinguish between right and wrong! Why push a helpless teenager to despair when he could have harmlessly integrated back into the world instead? It would seem that the community is much less safe in the hands of these vigilantes than with Jack!
This also raises general questions about the criminal justice system. It seems that in most societies, once someone is labelled a criminal, they are deemed to be bad for the rest of their life, even when their crime was only committed into heat of passion or through immaturity. Thus there is a strong sense that the criminal justice system is only there to lock up all criminals in order to keep society safe, and the longer they are kept in prison, the better. This attitude that retribution is the solution to eliminating crime is short-sighted and flawed, as is illustrated by this film. People who commit crimes may actually be good in nature, and have taken the wrong path due to external influences only, so if they are set back on the right course and are given the opportunity to integrate, they could become valuable citizens in the community again. However, by labelling all criminals as forever bad, a self-fulfilling prophecy is formed. Since whatever the criminal does will be suspected as done with evil intentions, society essentially pushes some ex-criminals into accepting his place in society as "the bad guy", and he will continue to commit crimes because no one would care if he did good deeds anyway. This becomes a vicious cycle, and aggravates crime rather than reducing it. Others, like Jack, who refuse to become "the bad guy", will instead have to succumb to the insults and mockery of society, and eventually, death and insanity become the only forms of escape.
A good real life example is Bailey Kurariki, the teenager whose release after serving time for murdering a pizza delivery man caused mini-furore and public outcry in New Zealand. After his release, the media stalked him and observed his every move, and when he takes an insignificant amount of drugs (which, as "Boy A" shows, most teens do at some point in their life), the media blows it out of proportion in order to prove that he is evil at heart. How can true rehabilitation be achieved if society is prejudiced about its value, and believes retribution is the key to everything? Will Kurariki end up like Boy A, paying for his past sins for the rest of his life?
Showing posts with label Crime. Show all posts
Showing posts with label Crime. Show all posts
Friday, 5 December 2008
Sunday, 9 November 2008
Maori and the Criminal Justice System in New Zealand
It seems to be a statistical trend that Maori are consistently overrepresented as offenders in our criminal justice system. There are certainly contextual factors that come into play: for example, those who are poor or come from single parent families tend to have a higher rates of criminal offending, and Maori are overrepresented in these categories. However, perhaps the most important factor of all is the imposition of a Western system of individualised on a very different indigenous, community-based legal system: whereas in tikanga, balance, reciprocity and mana are the focus, this is in stark contrast to the theories of retribution that seem to underlie our justice system.
To discuss the basic principles of tikanga, it is first necessary to consider the founding principles of Maori society. Maori society is based on the concept of whakapapa, that all Maori people are descended from the atua, the gods, and thus fundamentally connected with all parts of nature. This genealogical connection is strengthened by the idea of whanaungatanga, familial connection, from which the founding concept of community values prevailing over the individual is derived. Because Maori are so inextricably linked to nature and each other, any time someone does a harm, utu, reciprocity, must be called to restore balance in the world. It is from this that the ideas of crime and reparation come into play.
If one were to conceive of the Maori justice system as a formula, it would be something like this: a breach of tapu by committing a hara (an offence) affects mana which calls for utu to restore balance. The idea of tapu originates from the Maori myth of the birth of the world, where everything in the world, belonging to the atua, was reserved for special use and could not be touched without special protocol. Since humans are descended from the atua, they have inherent tapu, and an offence against the person is a hara itself. An example of tapu in a modern context is the imposition of a rahui, restricting people's gathering of shellfish for a period of time, during which if someone does collect shellfish, a hara is committed that affects that person's mana.
Mana is a fluid concept relating to reputation, charisma and prestige. It is derived in several ways: there is mana atua, which is derived from birthright and whakapapa; mana whenua, derived from the place you come from; and mana tangata, which derives from an individual's actions and deeds. By committing a hara, the individual does not only affect his own mana, but that of his whanau. Since raising one's mana is a central concept to the Maori way of life, it forms an essential part of tikanga. When a hara has been committed, the mana of both parties has been affected, leading to an imbalance which can only be restored by utu. It is also worth noting that while there is the European notion of mens rea, fault is not relevant as to whether a crime has been committed, because everything belongs to someone's scope of mana, so whomever it belongs to is responsible even if they have done no wrong. The fault element is only relevant in terms of how much reparation is required to restore balance.
In order to achieve the state of balance again, the disputes resolution process is rather different to the Western legal system. Instead of occurring at courts where a third party imposes his judgment on the offender as an individual, disputes resolution in tikanga occur between the two parties, with the rangatira and kaumatua playing a vital role in leading the proceedings. They will always take place at the marae, the centre of the community, giving mana to the process as well as representing the fact that disputes resolution is a community affair, not an individual one. Furthermore, unlike Pakeha trials where there is a fixed time and date for everything to be settled, since the focus is on reparation and making a compromise that is sustainable in the long run to restore balance, there is no limit on how long it takes for a dispute to be resolved. This is embodied in the phrase "ma te wa"; because Maori place a focus on genealogical link, even if conflicts are not resolved in one generation they can still be passed down and resolved for generations afterwards, so long as utu can eventually be attained.
As alluded to before, perhaps one of the most striking differences is the fact that even though an individual may have been the one who committed the offence, it is the community that is seen as the offender and the victim. Hence, often utu will be in the form of a compensation by resources of the community that do not belong to the offender himself. This is seen as a positive thing, since a community is more likely to have meaningful resources to pay back, as opposed to an individual who owns little; and in causing the community to lose its mana, the individual has whakama, which is a powerful deterrent from crime in the Maori community. Related to this is the idea that if no individual were to own up, someone else from that community would own up to the crime, since there is mana in doing so. This is indeed starkly different from Pakeha conceptions of responsibility for crime.
Since the imposition of a Pakeha legal system, all these basic tikangi principles have been slowly eroded by colonisation and urbanisation of Maori, to the extent that many Maori are now disenfranchised and have little link with their whanau, hapu and iwi. This loss could be seen as a process that causes what Emile Durkheim describes as "anomie", normlessness. The idea is that when social values change too rapidly, those who are used to traditional values often feel like they have lost their social foundation, leading to a normlessness where what is morally right and wrong is no longer certain. Perhaps this explains the high prevalence of Maori offending in our criminal justice system.
It is also perhaps that because this is slowly recognised as the root of the problem, leading to some reform efforts in our criminal justice system to accommodate these Maori principles in order to curb offending. For example, s 7 of the Sentencing Act 2002 states the principle that reparation must be considered as an option, emphasising the importance of restoration of balance between parties above all else. Furthermore, the Victims of Offences Act allows for victim impact statements to be read, so that the victim is actively involved in the offender's criminal proceedings in order to provide a sense of closure, another form of reparation. S 27 also allows cultural evidence to be adduced to explain reasons for offending, although this has been used by other cultures more than Maori.
In terms of actually integrating tikangi principles into the system, the two main developments are Family Group Conferencing and marae justice. Family Group Conferences were founded after a report by the Department of Social Welfare noting the benefits of diverting young offenders from the courts to an atmosphere where the entire family can gather together to discuss the offending and create long term solutions to fix the problem. This corresponds to the idea of whanaungatanga, and has proven effective; although there is still the problem that some Maori come from single parent families and often the whanau is not entirely present at these conferences. Marae justice allows the courts to divert selected cases from the courts to be dealt with by an appointed panel. The proceedings then take place at a marae, following Maori custom, also with an emphasis on solving the dispute between the parties rather than simply imposing retributive punishment. This has also been effective to a certain extent, since sometimes the strongest deterrent for an offender is the whakama they have caused to their whanau. However, as with Family Group Conferences, it has its limitations: with so many Maori disenfranchised and cut off from their whanau, hapu and iwi due to urbanisation, they may not even have a knowledge of Maori custom, and may simply see the marae as just another place where punishment is dealt, as opposed to being the heart of the community. This damages the mana of the marae.
Despite its limitations, these reform efforts do show a willingness of Pakeha to incorporate Maori custom in one legal system. Maori critics like Moana Jackson have said that this is not enough, that there should be a separate Maori jurisdiction as guaranteed by art 2 of the Treaty of Waitangi; but perhaps after almost 250 years of colonisation, separating society back into two groups that are dealt with under different legal customs when they all live in one community is not a sustainable idea. It seems much more beneficial to continue to encourage these reform efforts in order that Maori who do respect and value tikanga can make the best use of it, while maintaining the integrity of our society where "all are equal before the law".
To discuss the basic principles of tikanga, it is first necessary to consider the founding principles of Maori society. Maori society is based on the concept of whakapapa, that all Maori people are descended from the atua, the gods, and thus fundamentally connected with all parts of nature. This genealogical connection is strengthened by the idea of whanaungatanga, familial connection, from which the founding concept of community values prevailing over the individual is derived. Because Maori are so inextricably linked to nature and each other, any time someone does a harm, utu, reciprocity, must be called to restore balance in the world. It is from this that the ideas of crime and reparation come into play.
If one were to conceive of the Maori justice system as a formula, it would be something like this: a breach of tapu by committing a hara (an offence) affects mana which calls for utu to restore balance. The idea of tapu originates from the Maori myth of the birth of the world, where everything in the world, belonging to the atua, was reserved for special use and could not be touched without special protocol. Since humans are descended from the atua, they have inherent tapu, and an offence against the person is a hara itself. An example of tapu in a modern context is the imposition of a rahui, restricting people's gathering of shellfish for a period of time, during which if someone does collect shellfish, a hara is committed that affects that person's mana.
Mana is a fluid concept relating to reputation, charisma and prestige. It is derived in several ways: there is mana atua, which is derived from birthright and whakapapa; mana whenua, derived from the place you come from; and mana tangata, which derives from an individual's actions and deeds. By committing a hara, the individual does not only affect his own mana, but that of his whanau. Since raising one's mana is a central concept to the Maori way of life, it forms an essential part of tikanga. When a hara has been committed, the mana of both parties has been affected, leading to an imbalance which can only be restored by utu. It is also worth noting that while there is the European notion of mens rea, fault is not relevant as to whether a crime has been committed, because everything belongs to someone's scope of mana, so whomever it belongs to is responsible even if they have done no wrong. The fault element is only relevant in terms of how much reparation is required to restore balance.
In order to achieve the state of balance again, the disputes resolution process is rather different to the Western legal system. Instead of occurring at courts where a third party imposes his judgment on the offender as an individual, disputes resolution in tikanga occur between the two parties, with the rangatira and kaumatua playing a vital role in leading the proceedings. They will always take place at the marae, the centre of the community, giving mana to the process as well as representing the fact that disputes resolution is a community affair, not an individual one. Furthermore, unlike Pakeha trials where there is a fixed time and date for everything to be settled, since the focus is on reparation and making a compromise that is sustainable in the long run to restore balance, there is no limit on how long it takes for a dispute to be resolved. This is embodied in the phrase "ma te wa"; because Maori place a focus on genealogical link, even if conflicts are not resolved in one generation they can still be passed down and resolved for generations afterwards, so long as utu can eventually be attained.
As alluded to before, perhaps one of the most striking differences is the fact that even though an individual may have been the one who committed the offence, it is the community that is seen as the offender and the victim. Hence, often utu will be in the form of a compensation by resources of the community that do not belong to the offender himself. This is seen as a positive thing, since a community is more likely to have meaningful resources to pay back, as opposed to an individual who owns little; and in causing the community to lose its mana, the individual has whakama, which is a powerful deterrent from crime in the Maori community. Related to this is the idea that if no individual were to own up, someone else from that community would own up to the crime, since there is mana in doing so. This is indeed starkly different from Pakeha conceptions of responsibility for crime.
Since the imposition of a Pakeha legal system, all these basic tikangi principles have been slowly eroded by colonisation and urbanisation of Maori, to the extent that many Maori are now disenfranchised and have little link with their whanau, hapu and iwi. This loss could be seen as a process that causes what Emile Durkheim describes as "anomie", normlessness. The idea is that when social values change too rapidly, those who are used to traditional values often feel like they have lost their social foundation, leading to a normlessness where what is morally right and wrong is no longer certain. Perhaps this explains the high prevalence of Maori offending in our criminal justice system.
It is also perhaps that because this is slowly recognised as the root of the problem, leading to some reform efforts in our criminal justice system to accommodate these Maori principles in order to curb offending. For example, s 7 of the Sentencing Act 2002 states the principle that reparation must be considered as an option, emphasising the importance of restoration of balance between parties above all else. Furthermore, the Victims of Offences Act allows for victim impact statements to be read, so that the victim is actively involved in the offender's criminal proceedings in order to provide a sense of closure, another form of reparation. S 27 also allows cultural evidence to be adduced to explain reasons for offending, although this has been used by other cultures more than Maori.
In terms of actually integrating tikangi principles into the system, the two main developments are Family Group Conferencing and marae justice. Family Group Conferences were founded after a report by the Department of Social Welfare noting the benefits of diverting young offenders from the courts to an atmosphere where the entire family can gather together to discuss the offending and create long term solutions to fix the problem. This corresponds to the idea of whanaungatanga, and has proven effective; although there is still the problem that some Maori come from single parent families and often the whanau is not entirely present at these conferences. Marae justice allows the courts to divert selected cases from the courts to be dealt with by an appointed panel. The proceedings then take place at a marae, following Maori custom, also with an emphasis on solving the dispute between the parties rather than simply imposing retributive punishment. This has also been effective to a certain extent, since sometimes the strongest deterrent for an offender is the whakama they have caused to their whanau. However, as with Family Group Conferences, it has its limitations: with so many Maori disenfranchised and cut off from their whanau, hapu and iwi due to urbanisation, they may not even have a knowledge of Maori custom, and may simply see the marae as just another place where punishment is dealt, as opposed to being the heart of the community. This damages the mana of the marae.
Despite its limitations, these reform efforts do show a willingness of Pakeha to incorporate Maori custom in one legal system. Maori critics like Moana Jackson have said that this is not enough, that there should be a separate Maori jurisdiction as guaranteed by art 2 of the Treaty of Waitangi; but perhaps after almost 250 years of colonisation, separating society back into two groups that are dealt with under different legal customs when they all live in one community is not a sustainable idea. It seems much more beneficial to continue to encourage these reform efforts in order that Maori who do respect and value tikanga can make the best use of it, while maintaining the integrity of our society where "all are equal before the law".
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