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Tough-on-crime policies fail to produce the promised results of reducing crime and keeping the public safe. What then are the political motivations behind these policies and appearing tough on crime?  

Daniel Clinton Fitzgerald likely never imagined ending up in New Zealand’s highest and final court after reaching out to forcibly kiss a stranger on a busy central Wellington street one evening in 2016. The typical sentence for this relatively low-level offence of indecent assault does not even warrant prison time.

  

Fitzgerald had a long history of treatment-resistant schizophrenia and was marginally intoxicated on that fateful evening. Nonetheless, it was later found that his long-standing mental health conditions had “severely compromised” his decision-making ability.

 

It is safe to assume that Fitzgerald was probably not aware of the legal consequences of his actions before he tried to kiss a complete stranger, and it is equally unlikely that he ever thought he would be facing a seven-year prison sentence.

 

However, with two prior convictions for serious violent offending and New Zealand’s Three-Strikes-and-you’re-out law, the judge was forced to do just that.

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Fitzgerald was sent to Rimutaka Prison, one of New Zealand’s more notorious correctional facilities for minimum to high security male prisoners, known for its harsh living conditions and large gang population.

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His case wound its way through New Zealand’s court system, first appearing before the Court of Appeal before eventually landing in front of the Supreme Court judges who agreed the sentence breached the Bill of Rights as Fitzgerald was subjected to "torture or to cruel, degrading or disproportionately severe treatment or punishment".

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The Supreme Court resentenced Fitzgerald to a more proportionate six months. By that time, he had already been imprisoned for four years. He was immediately released for time served and received $450,000 in compensation.

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Fitzgerald was not who politicians had in mind with the adoption of Three Strikes back in 2010 when promising to “keep the worst repeat offenders behind bars for longer”. Yet, it is an instance of injustice resulting from a decades-old draconian approach to law and order.

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Criminal justice experts and academics say tough-on-crime policies remain problematic as they continually fail to reduce crime and keep the public safe.

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What politicians are saying?
 
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The current coalition government formed by the National, ACT, and New Zealand First parties is giving New Zealand the latest iteration of tough-on-crime politics.

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These traditionally right-leaning parties are no stranger to tough-on-crime politics, revisiting their policy playbooks every three years at election time.

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In 1990, John Banks promised voters he would create “tougher bail laws and heavier penalties” for offenders in the name of safer streets if elected. In 2008, John Key assured voters that they “deserve to know that the worst violent offenders are not walking alongside them in their communities”. In 2017, Bill English continued the trend by increasing capacity in New Zealand prisons through double-bunking to “ensure they are off the streets”.

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This time around is no different, with Christopher Luxon at the helm.

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The speech he gave at the National Party’s 2023 conference was aptly named “real consequences for crime”.

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In his speech, Luxon outlined a raft of policies, including more police, additional powers for police to go after offenders, military-style academies for youth offenders, reinstating the Three Strikes policy, and increasing New Zealand’s prison population.

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The rationale being that crime is increasing due to six years of Labour’s “soft on crime” approach and that only “National will restore real consequences for crime with stronger sentences for convicted criminals.” He says, “I make no apology for being tough on law and order”.

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Listening to Luxon getting fired up over penal policies, it is easy to see how some are led to believe that harsher punishment and tougher consequences might actually work to deter people from offending.

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However, Auckland University of Technology criminology lecturer Grace Gordon says the tough-on-crime approach assumes people rationally decide whether they will commit a crime and know what the punishment or consequences will be.

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“It's all based on deterrence theory, that if you have harsher punishment, it's going to act as a deterrent and stop future offending from happening. We know that prisons, tough on crime, tougher sentencing laws is not an effective deterrence.”

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She says offenders are usually influenced by forces that lie outside their control. In other words, they hardly “choose” to commit crimes, as the National Party states.

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“A lot of people that are engaging in crime, are under the influence of drugs or alcohol, are going through mental health distress, have a lot of complex needs, and are often not thinking about, you know, what is this? You know, am I going to get five years in prison or 10 years now they're not thinking about those sorts of consequences when they are engaging in criminal behaviour.”

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One thing National did get right, however, is that crime has increased … sort of.

I make no apologies for being tough on law and order.

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- Christopher Luxon

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What is happening with crime?
 

The government’s depiction of violent crime as increasing is not entirely untrue, but it does not give the full picture.

Gordon says there needs to be caution when using crime statistics to paint an image of crime, as the statistics are often influenced by other trends.

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“There are some limitations or flaws with crime statistics because a lot of what crime statistics do is actually create or capture reporting practices of the public, recording practices of the police, if something is in the media, people may be more likely to report something.”

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Crime is recorded in many ways, and it is hard to paint an image of current crime trends as it is believed that only 28 percent of crimes are reported to the police

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One election promise from the coalition government is to increase police numbers and give them additional powers to go after offenders. PHOTO: Ryan Bos

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​The Ministry of Justice’s New Zealand Crime and Victims Survey interviews thousands of New Zealanders over the age of 15 about their experiences of crime and includes unreported crime, so is the most accurate representation. 

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In 2023, the survey found that 31.5 percent of participants had experienced crime. While the highest in the six years the survey has run, the Ministry of Justice statistics show that crime rates have remained steady.

​Estimated number of people experiencing violent crime

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Gordon says while there are spikes in certain crimes over time, long-term crime statistics show that violent crime has been trending downward for a while now.

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“[Crime] has been relatively steady or declining. You have upshots or bits of the crime statistics where things will jump up, but generally, the trend of our crime rates is declining for the last 10 or 20 years.”

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The cost of tough-on-crime politics
 

While violent crime is decreasing, Aotearoa’s prison population remains disproportionately high compared to other developed countries.

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The trade-off for being tough on crime as a country is that the prison population swells.

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Recent Ministry of Justice statistics show that New Zealand locks up 170 people per 100,000 New Zealanders, which is higher than the OECD average of 147 per 100,000 people.

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New Zealand had the 8th highest imprisonment rate in 2018 compared to other OECD countries. It dropped to 16th highest in 2022 but is expected to rise again in the coming years.

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Victoria University criminology lecturer Ti Lamusse says prisons are a quick and simple solution for politicians to appear as though they are serious about “cracking down” on crime. 

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“A lot of politicians see prisons as a really simple solution to quite a hard problem.

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“They do this because it’s a simple message that reassures their supporters that something is being done about a real problem. They’re selling a false promise that something can be fixed.”

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However, prisons do not work to reduce or prevent crime. Their main purpose is to deliver punishment by isolating people from society.

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Lamusse says that prisons are ineffective at reducing crime as they are violent environments not conducive to restorative or rehabilitative practices.

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“Prisons set people up for failure because they teach the wrong lessons as people adapt to responding to difficult situations by using violence.

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“Prisons reduce people’s autonomy to make good decisions, and prisons are really bad environments in which to do rehabilitation.”

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This is reflected in New Zealand’s reoffending rate, which shows that more than half of all convicted offenders are resentenced within two years.

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Former Labour MP and Justice Minister Andrew Little says that apart from politicians who use tough-on-crime rhetoric, nobody else benefits from imprisonment, especially taxpayers who are left footing the bill.

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“What we know is when our prison population peaked in 2016, 2017 we had over 11,000 people in our prison system, 60 percent were reoffending within a couple of years of being released from prison, which, on anybody's measure, is a failure.”

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The system is just failing, failing the prisoner, but it's actually failing everybody else as well because it's not keeping communities safer.

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- Former Labour Justice Minister Andrew Little

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Prisons have played a large role in New Zealand's criminal justice system for a long time and have been used as a political football by politicians for decades. PHOTO: Ryan Bos

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​It is not only offenders who are impacted by tough-on-crime policies. There are collective repercussions that negatively impact a lot of innocent people.

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Lamusse says that families are often negatively impacted when an individual is incarcerated.

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“Their standard of living can actually decrease when a whanau member goes to prison. Children of incarcerated people are more likely to be in prison themselves and more likely to experience mental health distress that makes them more likely to be kicked out of school.”

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Little says that while prisons are necessary for some offenders, if the underlying drivers of crime are not addressed, the cycle of reoffending is likely to continue.

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“The system is just failing, failing the prisoner, but it's actually failing everybody else as well because it's not keeping communities safer.”

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Listen: Former Labour Party MP Andrew Little explains the political angle of tough-on-crime policies and discusses the challenges of alternative solutions to crime that do not involve punitive punishment.

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What makes tough-on-crime politics popular?
 

Punitive policies are ineffective at reducing crime, and harsher punishments for offenders cause more harm, yet tough-on-crime politics remain popular with voters.

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University of Canterbury political science and international relations lecturer Lin Mussell says that society and the media, in part, drive tough-on-crime politics.

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“I think it's because people in New Zealand have a bit of a punitive streak. I think that people like to see justice be done, and they like to feel like their communities are safer.”

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She says New Zealand’s relatively small news media landscape could be driving the fear and perceptions of crime.

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“I wonder if it's because New Zealand is a bit of a smaller country, and you have a limited number of outlets. It's like one event makes it in the news, and it could be something that everyone sees versus in a larger country.”

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The tough-on-crime approach includes harsher prison sentences to act as a deterrence to reduce offending. In reality, these policies do not have the desired effect says Victoria University criminology lecturer Ti Lamusse. PHOTO: Ryan Bos

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​Lamusse says that media prioritises crime as it attracts readers and is easy to sell.

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“Media use news values that prioritise a bunch of things that makes crime media a lot more attractive to report on.”

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They say that there is now a mismatch between people's perceptions and the actual rate of violent crime.

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“Most New Zealanders would say violent crime is increasing for decades, when in reality estimates suggests that over the thirty years, violent crime is decreasing.”

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Politicians feed into the public’s perceptions of crime using rhetoric supporting the idea that crime is spiralling out of control.

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In the lead-up to elections, politicians sometimes use specific events to support broad, sweeping claims that crime is increasing, something must be done about it, and that tougher consequences are the only solution.

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Mussell says tough-on-crime politics resonates with voters as it appears as though politicians are doing something about rising crime.

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“It's not really focused on evidence, but it's focused on ideology and what people feel like will make society safer. I think governments respond to that. They respond to their supporters, to their stakeholders, to their base.”

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Crime events and court proceedings garner a large amount of media coverage and usually make national news. 

PHOTO: Ryan Bos

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Why do politicians use tough-on-crime politics?
 

In the latest round of tough-on-crime policies, the coalition government admits to ignoring official advice about their policies' potential risks, harm, and ineffectiveness.​

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On the gang patch ban, Justice Minister Paul Goldsmith admits the policy was at odds with expert advice but believed the public supported the tough approach.

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He says, “We campaigned on it, we were elected, and we’re going to do it, and so you can come up with all manner of potential risks and outcomes. But the overall strategy is clear, and that’s what we want to do.”

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University of Melbourne indigenous criminologist professor Juan Tauri (Ngati Porou) is most concerned about the Government's lack of evidence to support its policies.

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He says that politicians are purposely deceptive as they know the policies do not work, but the end goal is increasing their votes and power.

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“I think that the most troubling thing is that it’s completely evidence-less. They cannot come up with credible evidence to support their policies, right. They’re called out every time, and their response is ideological or personal attacks on academics like myself.

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“And I think that they know that it’s obvious that there’s no evidential foundation, and they don’t care. And that’s what worries me. They really don’t care.”

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This is particularly true in current debates on a raft of rehashed tough-on-crime policies such as youth boot camps and the gang patch ban.

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Responding to media questions on the effectiveness of boot camps for young offenders, Luxon says, “I don't care what you say about whether it does or doesn't work … but we are, dammit, going to try something different because we cannot carry on getting the results that we've been getting."​

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Tauri says that politicians know the drivers of crime are hugely complex, and the only way to meaningfully address them, particularly violent crime, is massively expensive. It will involve diverting a lot of money sent to police and prisons into social services.

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He says although it would be more successful at reducing crime, it would also be “political suicide.”

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“How do you turn the Titanic around? That fear of crime and of poor white and brown people that permeates through the middle class, and what have you. How do you turn that ship around when you’ve been scaring the shit out of them for 40-50 years? So, they benefit from it. That's how you get votes.”

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They know that it’s obvious that there’s no evidential foundation, and they don’t care. And that’s what worries me. They really don’t care.

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- Juan Tauri

Listen: Professor Juan Tauri explains the broken windows policy that allowed 'tough on crime' policies to gain traction in politics and why they appeal to voters.

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Gordon says the policies are designed on emotional appeals and kneejerk legislation that includes catchy soundbites and promises designed to attract support and votes.

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“So, they’re wanting to appeal to these deep-seated fears that the public hold around dangerousness, riskiness, criminal behaviour without actually trying to provide an adequate solution.”

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Watch: AUT criminology lecturer Grace Gordon discusses the fear based approach used in tough-on-crime politics and what alternatives should used instead.

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However, the reality of these policies is poles apart.

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“They’re promoting this idea that they are wanting to reduce the number of victims in the next few years, so it sounds really appealing. But we know the harms of the prison system, of the criminal punishment system. We know how damaging it is. And so, it’s clearly not evidence based.

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“We're just going to see more cycles and cycles of incarceration, of victimisation, of criminal behaviour, and it's not actually going to resolve crime or make us safer in the long run.”

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Published: October 28, 2024

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Author: Ryan Bos​, Student Journalist

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