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Just how free is your will, truly? Criminal law & the free thinker.

A few years ago two people made comments to me independently about children; comments that broke my heart. In one, the sister of a friend of mine who had adopted a baby from a troubled background asked me if I had met ‘the criminal’s baby’ yet. I did a double-take; this was the first conversation I had ever had with this woman, but surely she must have been joking. She wasn’t. She waited for my answer. I stammered out something about what gorgeous and happy boy he was, and left; under no illusions about what she saw in that child’s past and his future. At about the same time, another friend of mine was parenting a child from  troubled background. Hmm. Such a quaint phrase ‘troubled background’..makes me think of a William Turner painting, like The 5th Plague of Egypt:


This child was a bit older, and he had been playing up at school. Really playing up, and my friend was, understandably, tearing her hair out. “My kid is totally fucked up,” she said, in a tone of utter finality. My heart bled for her; but also for her boy, happily (on that day, at least) playing on the computer in the next room. The sense I had garnered from both conversations (and the first was a short one, I’ll grant you) was that each child was followed by a terrible Doom. In the case of the second child (Māori) he was rapidly becoming, for a host of complicated reasons, the Troubled Māori Boy at his school. Now this child had a pretty good chance of beating his Doom, he had a well intentioned  & hardworking Mum, and a bunch of supports in place around him. In fact, both children did, and I can only hope that these two kids continue to outpace the expectations of others that they will fail; that the choices they will make will not fulfil the prophecies being made by others on their behalf.

A couple of weeks ago I happened to be in my first week of law teaching for the year, introducing my classes to the concept of mens rea, or ‘the guilty mind’ that prosecutors must prove exists if defendants are to be held liable  for the actus reus, or ‘guilty conduct’ that comprise serious offences in this in this country’s criminal law (many offences don’t require mens rea these days, but that’s a story for another day).

So in my classes we had to discuss some basics before we even got what it means to choose an action, and to carry it out with a specific frame of mind like intent or recklessness. At the very heart of our criminal legal system is the notion of the freely choosing individual. The person who, faced with a choice of courses of action is capable of choosing one of those courses of action. This presumption that individuals must have free will in order to be at fault is extraordinarily powerful and optimistic. Thousands of years of philosophical and religious thought have also upheld this idea, particularly in the West,  that humans can choose obedience to a deity or a principle, or a moral.  This idea is in direct tension with another powerful idea; determinism,  which understands humans to be little more than flotsam and jetsam on tides of their own fate. We are the sum of our physiology, our psychology, our physicality, our environment, and we are bound to act as we do; our whole lives have brought us to this moment; and true choice is but an illusion.

At the same time as teaching these classes, I read ab0ut the successful appeal by one of the young boys who killed Mr Arun Kumar, a loved and respected man who was stabbed to death in his Auckland dairy in June, 2014. This is one case that challenges the role we presume free will plays in our behaviour. The appellant was 13 at the time of the killing, who had suffered terrible head trauma at the age of 8; married with many of the other markers of disadvantage that other young offenders carry; lack of family support, lack of engagement with the medical establishment; abysmal schooling experiences, and so on. The following quote from the article interested me:

A medical report available to the courts outlined the effect the injury had on the teenager’s reasoning on the day of the killing: “although knowing right from wrong, [P] was significantly reduced in his capacity to choose right from wrong, due to his lasting brain injury impairments.

“He could not use his knowledge normally to control his actions on the day and in the situation in the dairy. He had less control than another person his age would have had in the same circumstances due to his brain damage.”

In other words, this offender’s capacity to exercise free will was compromised. It was not eradicated; he was found guilty of manslaughter after all; he was not acting as an automaton; he still met the mens rea for manslaughter; just not for murder, because the jury found he had formed intent for committing serious bodily harm, without intending, or knowing that death could result (s168, Crimes Act 1961). The Court of Appeal said that the sentencing judge had not taken enough account of the Defendant’s reduced mental faculty in sentencing. This case highlighted how fragile our cherished concept of free will can be.  Why make this young person criminally liable for something he most probably could not have chosen to do differently in that moment? Well, there are many reasons, and one of them is simply that our system of criminal liability simply cannot take account well of hard cases.

I asked my classes who among them felt they were indeed in control of their own destinies; and who felt at the mercy of some kind of fate over which they had no kind of control. Funnily enough, many of the same people who thought themselves in control, also saw themselves carried along on tides over which they had no control whatsoever. Somewhere between these two poles exist real people struggling with their unvarnished lives. Muddiness of real life to one side; politics, religion, and law would all look very different in this country if the notion of individual free will did not have such ascendance.

I can only trust that the two children I mentioned above are both able and enabled to make the kinds of decisions that dispel the Dooms that might otherwise sweep them up.


[Postscript: just saw this article about 30 seconds ago..seems, according to this experiment at least,  that a goodly degree of our quote-unquote free choices are actually retrofitted. Well, a scientific study rarely quells debate, does it.]





About Sparrowhawk/Kārearea

Legal academic and writer, Wellington. (Te Rarawa, Ngāti Pākeha. Nō te Hāhi Mihinare hoki)

17 responses »

  1. Or nature versus nurture. *And* how much are we programmed by our genes (as well as environment)?

    From what you know of me you might be excused to think I will brook nothing but free will. And I do, albeit tempered my 25 years of uncomfortable evidence against. For example a young man – not so far from me – who grew up with nil contact with his (habitually dishonest, conman) father from the age of about three, yet, despite love poured into him by a mother who lovingly sacrificed her own financial position to give him every chance, private schooling, et al, he’s ended up a replica of his father. And has paid the price, alienating himself from family, living on wrong side of the law, doing jail time, and all up, becoming a brutish, self-centred, self-destructive, and destructive man (for everyone around him).

    But the thing is I know he’s intelligent, very intelligent, and I believe behind every dreadfully wrong choice he has made, he had a choice. Even if his own history on the extremes early in his adult life became the track his future could not leave as he cut himself off from the ability to have choices.

    And what is the alternative to holding adults responsible for their actions, short term and long term? I guess your question really is the purpose of a justice system. I doubt it has the qualifications to do anything other than punish, even if that punishment is mainly symbolic as a warning to all adults to think about their actions – and that is important. By all means try and rehabilitate in jail – noting I have no idea how you rehabilitate the above man – but wrong-doing surely must end you in jail/punished in the first instance. Otherwise we are asking judges to play God, and I have no faith in our state schooled judges welding such omniscience. Look at the shambles judges have made of rights, let alone the Westminster Principle, via the tax courts.

    For non-violent crime, however, especially most drug convictions, I would love to see an ability to have a criminal record wiped so that it doesn’t determine you.

    (And I know little of Maori restorative justice, but suspect – and would fall out with every classical liberal over it – that a dual justice system may have merit.)

    Liked by 1 person

    • Exactly right; the ultimate choice is often formed by all those other earlier choices, and what is the alternative? Well the alternative would likely be determining liability on something other than your mental state: what level of harm occurred, and did you cause it? This strict liability inevitably casts the net of liability far more broadly, not the least because of how we define harm. Sentencing could vary according to individual circumstances, but that would likely be down to judicial and administrative discretion..eek!!!. …as for Māori restorative justice; that’s possibly a different proposition to Māori criminal liability, which would probably be determined on a collective, not individual basis at all. The whanau or hapū group to which the individual belongs would be responsible for the actions of that individual; and the mental state would again not really matter; the focus being placed on harm to the victims (or their group)caused by the individual, but under the collective responsibility of his or her group. But then, if Māori could exercise choice to create & enter into such a system, and consent to abide by it…just maybe it could bloody well work.


  2. First, free will is not some supernatural power. It is just us deciding for ourselves what we “will” do, “free” of external coercion or undue influence. All uses of the word “free” must refer to some practical and specific form of constraint. We can set a bird free from its cage. We can free the prisoner’s hands from his handcuffs. We can free a slave from his master. We can guarantee free speech by preventing those in power from locking up people who disagree with them. And on, and on.

    There is no such thing as “freedom from causation”. The idea is irrational, an oxymoron, because once you are free from reliable cause and effect (determinism) you are no longer able to reliably cause any effect!

    That’s why it is silly to say the bird freed from its cage is not “truly” free because it is still subject to causation. If we were to actually free the bird from causation, then what would happen when he flapped his wings? Nothing reliable! Whether the flapping produced flight or not would be a matter of pure coincidence.

    So, we should start by realizing that every practical freedom requires a deterministic universe. Without determinism, nobody is free to DO anything. And once we discard this silly business of “freedom from causation” we can start making sense again.

    The term “free will” makes a meaningful distinction between those actions we deliberately choose to do and those actions that we are forced to do against our will.

    After the Boston Marathon bombing in 2013, the bombers hijacked a car and forced the driver at gunpoint to aid them in their escape. The driver was not charged with “aiding and abetting” because he was not acting of his own free will. But the bombers were held responsible for the harmful acts they deliberately chose to do.

    Again, there is nothing religious about this simple distinction. It is a simple matter of fact that the driver was forced against his will to do what he would rather not have done.

    This simple fact is most significant in determining correction. In order to get the driver to stop driving terrorists in his car we need do but one thing: remove the gun pointing at his head. After that he will return to behaving as a law abiding citizen.

    But correcting the surviving bomber, so that in the future he no longer chooses to blow people up at sporting events, may require a more severe penalty.

    The irony is that since our goal is correction, all of the social conditioning that turned him into a violent terrorist does not diminish his penalty, but increases it. Because it is harder to change the hardened felon than it is to correct the guy on his first misdemeanor. It will take more time and effort, and some will prove to be incorrigible.

    The penalty and other aspects of correction are determined by a judge (to the degree his discretion is granted by law) who must take into account what it will require before we can confidently release the offender back into the public.

    There’s one more aspect to be considered. A person who is unable to form a moral will, due to disease, injury, genetic impairment, et cetera, is also said to be lacking “free will”. In this case however, it is not the freedom so much as it is the ability to form a normal intent, that is lacking.

    Liked by 1 person

    • Hi Marvin, loved that sentence: “So, we should start by realizing that every practical freedom requires a deterministic universe.” the problem of course is that our criminal liability relies on the notion of the uncaused causer, and presumes any not ‘unfit to stand trial’ under mental health legislation is capable of forming intent, and thus exercising free will. And our criminal system is not conceived of as a system of correction as a whole, although there are aspects of that in some parts of it, mainly sentencing. It is a system of liability; and therein lies the problem (but as Mark notes above, what alternative is there that does not utterly violate human freedoms?)


      • There is no such thing as an “uncaused cause”. But some causes are more relevant than others. If you wish to blame the Big Bang for every subsequent event then I’ll have to ask you what you plan to do about the Big Bang to correct the criminal offender. There is nothing you can do about it, so it is irrelevant.

        Our practical problem is to protect people from criminal harm. And one of the relevant causes of that harm, assuming we are dealing with a normal brain, was a thought process that took place within the head of the offender, that resulted in his deliberate choice to commit the crime.

        Before we can safely release the offender back into society, we need to be reasonably certain that he will make different choices in the future. So we address the specific problems of education, counseling, job training, post-release follow-up, and so forth that will give him better options to choose from next time.

        Meanwhile, back in the community, social service groups address the various needs of the community. We eliminate gangs, change drug polices, provide after school recreation programs, etc.


  3. While I cannot flaw your excellent point regarding ‘directing’ one’s inability to form actions without intention done so in order to achieve a anticipated outcome. One thing you said though their cannot be action without intention and it seems you are suggesting all intentin is formed with a sound capable mind..

    I must point out that even if true that still leaves space for the intention to be formed by a mind incapable of understanding the consequences. And that ignoring the infinite complexities of these children’s offending essentially renders a child’s life a ‘write-off’, further serving to marginalise them and their contemporise. This ‘write-off’ attitude of convicting should be put off as long as possible to allow the child time to gain an understanding of the world and their own behaviour, convicting children only serve to aggravate and exasperate the misperception that these youths labour under; that they are born on the wrong side of the law and are bound to remain there.

    The only conceivable thing satisfied by imprisoning these youths is the satisfaction of the generally held feelings of vengefulness and hatred amongst the citizenry towards ‘criminals’. Possibly due to the resentfulness of their perceived easy carefree life of the stereo typical unemployed longing around the house. This is definitely not true, I would challenge you to find a house in which the primary breadwinner is in and out of prison in which life is easy. Most offenders; certainly the vast majority of offenders such as the one in question (children) have a history of being victims or at least witness to crime in their own home. Rendering their intention forming capabilities out of sync with our own and the inflexible nature of the criminal justice system only serves to perpetuate so called ‘criminality’ and results in recurring, intergenerational poverty due to difficulties associated with finding a job with the brand “criminal” clearly emblazoned across your forehead. Its blatantly obvious that this branding of a section of society fosters an environment in which a child could form the intention of assaulting someone with a knife.

    I cannot see how any reasonable person would attribute youthful criminal offending to a predisposition to act in a way contrary to man made laws, this is an absurd proposition; how would a child have the knowledge to break laws which often have no grounding in reason or logic. The actions of the children in question where a combination of a total misunderstanding of society and the way it functions; their place on the social ladder (which they where born at the bottom of;) possibly youthful exuberance and finally I cannot look passed the role the acute brain injury may of played in impulse control; which lets face its isn’t great in a 13 year old boy anyway. I suggest this child learned his way of behaving through modelling of adults around or through negligence and inattention resulting in attention seeking behaviour; probably the former.

    With regards to him forming the intent to carry the knive with the intended purpose of assaulting someone, it is very possible he formed the cohesive and conscious intention necessary to bring him into the realms of the Manslaughter convictions of Youth wording. However, I simply do not accept a 13-year-old can truly understand the possible implications that might arise should he carry out his intention of assaulting someone with that knife. He may have been able to form the words (the police probably helped him a bit with those) and even been capable of forming the thoughts of seriously injuring someone. However in reality at 13 you are entirely incapable of understanding the gravity of the offending to which you are being held responsible, you cannot understand the possible implications of death and that using that knife could cause, at 13 you haven’t considered the nature of life in even the most basic terms, it is absurd to hold someone criminally liable for causing another’s death as such.

    This is my issue with you comment; although I think you make some very interesting point. I do not think you gave adequate weight to externalities a kid may face. And the impact they have on an individual to choose freely, in the case of the Cannons Creek youth acting freely may be enjoying bourbons at the park, this will likely result in harassment from the police. Consider now his counterparty a rich young (white) Auckland (such as myself) enjoying wine in a bar. The likes of which are prohibitively expensive and inaccessible for poor urban youth. I assert that police involvement and disproportionate exposure to police and crime renders a person of 13 incapable of reaching the same conclusions as his affluent counterpart; I don’t recall carrying a knife and I never needed to.

    This early introduction to criminality and the aggressive policing tactics used frequently renders one incapable of coming to the same conclusions about what’s lawful and even if the law is worth following. Not free from interruption by police, jail, court and such institutions further widens the gap between what they perceive as lawful behaviours and how they conduct themselves. They have a clearly impaired ability to create positive outcomes due to their own behaviour so they shut off that side and turn to the the older kids who show them some positive attention. As I see it the question is: not whether the youth knew when he picked up that knife he would possibly use it, it is how can we hold the child who has had no sense installed in him to the same standard as a child who has; in the later case the offending without reasonable cause is highly intention; in the former it is not. It is a way to life guided by external influences, who inadvertently misguiding the developing brain and hinder his ability to mesh with the English system of law and enforcement that is not only foreign to him but seems to be attacking him and his family this confusion breads resent against the perceived enemy and is sonly exacerbated by police involvement. This is especially true of children who at a young age free-from any predisposition sees a parent consuming drugs, I have witnessed first hand numerous examples of young children’s indifference to hard drug use. This is a problem for everyone from us as tax-payers to our broken society which are perpetuates by a problem by introducing criminal culpability and lower and lower ages, the problem of over criminalisation has gone on with absolutely no reasoned attempt to solve it.

    So in extremely vague and general terms, the way the police and following on from that the courts, deal with younger people who are clearly at risk is self defeating. Although the Youth Court takes a family centred approach which is immeasurably better than the alternative, a more realistic approach that understands the root cause of the offending and lack of capacity possessed by the youth to determine that such behaviour is not desirable, addressing the root would help him to form his intentions in a way that is more pleasing to society and produces positive results with English laws by which he finds himself bound.

    The current operation of laws (particularly the Misuse of drugs Act) operate to create a void in which health, behavioural therapists and cultural experts are excluded in place of police and judicial involvement, these people especially the police make no attempt to persuade the public they are apt for dealing with the problem. The police even being in the house must cause immense stress and confusion; it impacts their outlook on the world and thusly their decision making choice. The needlessly oppositional way in which law enforcement enforces the law; and the aggressive manner in which they prosecutes it only further widens the gap of marginalisation felt by these youths. Which subsequently severely impairs their decision making choice’s. Now there is obviously a need to protect the individuals whom reside in the house and are victims of domestic violence and so on, that is not my point. It’s police tactics of being overly present in ‘high-crimes’ areas only serve the police; who have a legislative obligation to catch and prosecute crime. That serve to widen the gap between young poor Maori and the law system they find themselves tangled up in.

    Thankfully the courts approach is relatively progressive approach criminating youth; its not done, except for most serious of crime’s. So that begs the question if negligence can be formed in the case of murder why not serious injury? Surely the only difference in some cases is the positioning of the knife, how can the law can hold a 13-year-old responsible for man-slaughter in his recklessness when they are incapable of criminal liability in every other regard, the only reason is to punish to, hold them accountable for there actions. But it is frankly inconsistent and the Law should not look kindly upon inconsistency.

    Surely holding them capable of possessing murderous intent is awarding a level of cohesion other wise automatically denied them. The only reason I can reckon is the impact of their offending, the fact that someone died through their reckless behaviour somehow means the child can now form mens rea? When the law recognises that they are totally incapable of possessing such intention. The only reason I can conceive is to satisfy the victims appetite for what they perceive as ‘justice;’ being, a child locked in a secure unit away form his family and friends and most importantly completely depriving him of any meaningful positive influence and surrounding him with bars reinforcing his disconnect from society. Sometimes people should ask themselves the question what if it was my child who committed such a horrendous act of stupidity, would you want him/her at home to guide them to an understanding of their behaviour which I’m sure due to his young age he has not began to understand his offending, nor will he if he remains in custardy until age 12. Or would you think it best to have them removed from society until they reach the arbitrarily set age of 21; at which point they are thrust back in to society which he so badly misunderstood at the age of 13. Only minimal, superficial levels of realisation of the wrongfulness of the acts can be gained whilst imprisoned for those acts.

    In my opinion, in the interest of addressing the causes of crime victims should play no part in the sentencing process, they are naturally vengeful and wish harm and pain upon the individuals who had caused them such emotions. In place, should be a scientific, cause-based approach facilitating an understanding of what it is that landed themselves in the situation they are in, lastly politicians should be recognised as doing what is only in there own personal interest and not that of the country.

    numerous examples are available. Jamie White of the Act party asserts that a 3 strike approach to burglary offences (A crime often committed in sprees) would see three time offenders locked up for the maximum sentence available; effectively tying the judges hands to send these ‘recidivist-offenders’ to prison at the maximum allowed under law. In the case of three strikes it has been universally dismissed as absurd and harmful, not to mention expensive and impossible to manage. Now consider the young individual drunk coming home from a party He steals 3 lawn gnomes from 3 separate properties. The judge must now send this young lawn gnome thief to prison for 10 years, and if J.W. had his way with no parole; so a life sentence would result. Ridiculous. The hammer blow dealt with a criminal conviction to ‘deal’ with this sought of silly behaviours is just incomprehensible. It is very disappointing to see someone; a politician who would receive a salary from the very public he seeks to imprison advocate for such a ridiculous policy, in the name of vote garnering; this is destructive to the fabric of our nation. Now I move onto heavy presence of police in high-crime neighbourhoods being relatively highly exposed to this sought of offending and how one might find himself in such a position.

    It is inherently unfair on kids who by reason of their surroundings find themselves in situations in which a death results, I put forth the idea that a child of an affluent family living in Devonport is a lot less likely to find himself facing the dilemma of an unwilling victim and being in possession of a weapon that can so easily cause death (such as the knife in this case.) This de facto criminalisation of poor minorities has a racist outcome, its not the inconsistent application, rather the environmental inevitabilities that would render a impoverished child of a gang-member many times mores likely to face this situation than his affluent counterpart, would the counterpart of made the same decision if he where to land in the situation? No one knows, there is an obvious need for the law tailor outcome when dealing with youth; done so in order that 2 lives are not lost from this tragedy, the child who has severely impacted upon his own life and also the victims of mindless youth offending. We as a society need to help steer this misguided youth into a entirely new way of thinking; and to shun idea that justice is punitive revenge carried out by the state mechanism.

    Its simply not fair to say to that child you should have necessary sophistication to figure out what laws are in existence; keeping in mind the child’s ‘moral-compass’ was never set straight. And secondly, if the child cannot figure out the law; and is not told the law introducing the child to the law through arresting the breadwinner who earns a meagre living selling cannabis and can barely provide any meaningful existence is frankly asking for a negative perception of the law; which to any objective observer and entirely inconsistent in principle. And at the heart of the problem of criminal behaviour by youth is a disconnect and profound disrespect for the law and its enforcers.

    To hold that child to the same standard as a child from a perfectly law-abiding family; whom may I say consume alcohol (recreational drug) free form criminality is unfair, in his eyes cannabis use and distribution is normal. It is a extremely detrimental belief to believe that one was born on the wrong side of the law. Not to mention extremely unfair on the child and results in a life of marginalisation from the lawful side of life. I find it heart breaking that children in high-crime neighbourhoods oppose the police for what seems the mere sake of it and end up getting charged with a public order offence, which results in a CRIMINAL conviction. So how are people surprised that such neglect can exist that a 13-year-old carries a knife with him to Robb a dairy. It is as a result of skewed morals and negative role models that are created in drug dealers as a by product of the absurd and fruitless criminal war on drugs. Finally, on that point, negative role models arise out of the complete lack of regulation around cannabis supply, it is the life blood of the ‘criminal-element’ and resulting control of the lucrative trade are drug dealers who the kids look up to as the only people with any means around their abandoned neighbourhoods.

    Don’t get me wrong, I am not advocating for total deregulation of all drugs; P use for instance needs immediate intervention by doctors and addiction specialists; firstly; for the individual who is addicted and secondly his family and society as a whole. Leaving methamphetamine use untreated only leads to further offending and societal detriment.

    However, it is a law that most see as ‘harmless’ I blame for a huge majority of disaffection of the youth and inturn impaired ability to rationalise inline with the law, be it wilful or not. I see youth bought before the Youth Court and many young individuals (17+) in the District court for cannabis ‘offending’ their hopes of an apprenticeship dashed as are the hopes of one day seeing Europe or Northern America. I suggest that the inherent inconsistency of this prohibition law and the lack of reasonable justification tunes attitudes and thought process more than some might think. Frankly, its not hard to see how someone would feel isolated from; and targeted by, the law when cannabis use is criminalised when alcohol is perfectly lawful to consume in infinite quantities. Not to mention that cannabis use in affluent white neighbourhoods goes completely unchallenged, because of the nature or the dwellings in which the affluent find themselves they are seldom consuming it on the street as are the youth who feel the full brunt of this law

    I have extreme difficulty in comprehending how such a harmful prohibition is allowed to remain; until you look at the statistics. It is society’s most marginalised who are affected by prohibition and resulting brand of criminal, many of them probably left confused find it hard to rationalise after witnessing first hand the destruction alcohol causes and the accompanying abuse and senseless violence considering its abundant lawful supply. This law is racist in its operation evidenced in the disproportionate outcomes, which in turn leads families to feel aggressively targeted for what they perceive is harmless; no one disputes alcohol causes vastly more harm the cannabis. Criminalising individuals for failure to remain abstinent is an extremely outdated and harmful idea especially for individuals who come from a house in which its use was prevalent, It is here I assert that the seeds of contempt and disaffection are planted. Until then targeting the most vulnerable people in our society with criminality and further hurdles to over come, continues to provide an environment in which a us-and-them attitude flourishes. The result of which is a skewed decision making towards the unlawful, or at least for the wilful offender a lack of respect for the law; which is easy to understand if observed objectively; and therefore the disdain of the law logically resulting in non-adherence.

    It would be to society’s own avail to shred its feelings of punitive revenge towards the so called ‘criminal-class’ which is often thinly veiled racism; a central driver for the resentfulness Maori youth feel towards a foreign society imposing its laws upon them. A less punitive approach is needed where the outcomes lie proportionally across society, my problem is with prohibition; but mainly with the way in which it perpetuates poverty and criminality. The law in fact was designed in part to keep a close eye on the poor by criminalising something they did; thus providing lawful justification for invading their homes and lives. The law has its origin in the deep south of America when new immigrants where the subject of racist misconceptions and hateful lies. And many repulsive laws that even the most ardent modern day semi-racist would repeal at the sight of, almost all completely dispelled by a reasonably informed public as ridiculous and self defeating.
    The racist authorities sought to monitor the lower-class in this case through the criminalisation of there pastime; thus providing lawful (albeit wrong) justification for invasion of one’s home and constant lawful harassment/ involvement by law enforcement.

    The Law still stands and the effect has not changed; if your found in possession of cannabis (and you’re 2 to 3 times more likely if you are a Maori male) then the police have the discretion to prosecute you under a law which could result in 3 years in prison, or to release you on the spot with a warning. This is the considerable discretion and arcane potential that is still manifesting in a criminal poor; present in todays society. This is the racist operation and devises way the law works; it is through the common misperception that the law is harmless because if your caught with weed you’ll in all likelihood be released, if you are of a similar background to the police in question and seem to have ‘a lot-to-loose’ from a conviction. These individuals, mostly white (Before you go jumping up and down I have directly personal experience from both sides that prove my theory beyond anything words) will in all likelihood be dealt with by means of a warning; which begs the question why do only some end up in court for it? The answer is the inconsistent and inadvertently racist permute of convictions; resulting in only partial perusal of the law to its full extent. Police see a young Maori male with numerous convictions as someone capable of less harm from a conviction as opposed to a conviction free younger professional who dare I say is white and drives a nice car and lives in a nice neighbourhood. I can personally vouch that use amongst the affluent youth of Auckland is effectively equal to that of the impoverished communities of Katia or Whangarei.

    The outcome that Maori are severely over represented in prison and in the youth justice system represents a continuation of the original purpose of this law and the prohibition ought to be recognised for what it is; an extremely lop sided law that perpetuates poverty and leads to enormous sunken expenditure of tax payer dollars, and most important help literally no one and has had no effect whatsoever on supply or consumption; whilst destroying people’s livelihoods and families. The unfortunate fact that Maori are over represented throughout the Department of Justice’s databases clearly demonstrates a link between adult offending and youth offending, raised in a criminal house your decision making becomes such that chances of approval from pears and parents effect who you become. Furthermore, necessary to survive in your environment, its called adaption and its what human beings do to survive.

    What NZ needs is a re-haul of the way; and who, we brand as criminals; for now, however, the essence of being a criminal entails getting caught not committing a crime; or perhaps, having an addiction for which you have sought and failed to find any. Due to the frankly absurd notion that by focusing on punitive criminal handling of drug addicts and cannabis users the issue will never be resolved; and so far it hasn’t.

    Lastly way in which parole, recall laws operate to keep our prison full and our parole system over burdened need an urgent rethinking. In excluding ‘criminals’ from society and gainful employment. And lastly, the outdated hypocritical prohibition of cannabis must be ended its destruction is far reaching and often not recognised as a major prohibited for young people (17+) finding employment and seeing the world. It would be next to impossible to advocate for the law in general when all of the preceding outcomes still occur on a daily basis while Peter Dunne sits at Logan Brown and Drink $40 bottles of wine; frankly it is an insult to me that this law is let to sit; spitting in the face of the Law Commission and the numerous other intelligent people who advocate for its repeal. Society is simply creating a cane for their own backs by issueing criminal brands to individuals who fail to conform to laws for whatever reason. Their operation only serves to inhibit reintegration and render the ‘criminals’ who witness their loved ones excluded incapable of telling true right from true wrong.

    Sorry went a bit off on a tangent there; but I really do see that the youth in question’s action’s that bought him into the realms of negligent culpability where a result of a total oppositional disaffection to the Law because of the unfair targeting of what he sees as his people and his Whanau. And frankly, He’s not wrong the system that is disproportionate in its application and racist in its outcome only breads contempt for authority. Until we solve the problem of criminalising the poor through ancient unjustifiable legislation left in place by lazy, self-interested, greedy and cowardly politicians who really only sought popular support we shouldn’t be surprised that such an underclass exists that a 13 year old picks up a knife with intention to harm another human. And that while fitting in within the word of the law does not mean kids belong there; it is a deficient law put in place by politicians reacting to calls from victims and the public alike following a tragic event, that occurred. Resulting in knee-jerk law making to appease the voting public.


    • Sorry for the spelling and grammar mistakes just went on the rant without checking for mistakes. Any opinions? I’d love to hear if you agree or disagree with the things I have stated.


      Liked by 1 person

      • Hi worries re typos etc, I can hardly point fingers! I’m off to teach my crimes class shortly, and I’m very keen to have a good read of your comment and respond, so will get back to you thi afternoon. I appreciate you taking the time!


    • If I might throw in my 2 cents. The criteria of a just penalty is one that (a) repairs the harm, (b) corrects the offender’s future choices, (c) protects society until the offender’s behavior is corrected, and (d) does no more harm to the offender or his rights than is reasonably needed to accomplish (a), (b), and (c). No harm beyond this can be justified.

      It is said that “it takes a village to raise a child”. This assumes the village is morally mature enough to take on this responsibility. It is up to the broader culture to address all of the social conditions (lack of education, jobs, after school activities, et cetera) that lead to criminal harm.


      • Yea sure, love to here what people think of my radical opinions.

        I cannot see how imprisonment can repair the irreversible harm caused by taking someones live. I can’t see any emotional harm being addressed or solved by removing this child from society; I see the merely temporary satisfaction of the age old desire to inflict some reciprocal emotional pain upon those who wronged you. I do agree with you that the offenders future behaviour could be ‘mended’ and that society deserves to be free from such attacks; further, a desperate change in environment was clearly in need, but I have doubts on the crowns ability to do so. I consider that locking him up with other offenders who are all from the same environment and have the same misperceotions and educational deficiencies, could possibly reinforce his misguided reasoning and even exasperate his offending and possibly even serve to normalise it; it certainly sends him a clear message about his role in our society. Although, maybe being around kids in a custodial setting might do him some good to view his own offending through observation of other children.

        I have seen first hand the youth wing in Auckland prison, it’s a hideous place where spontaneous, impulsive outbursts of violence are frequent. I concede though leaving him where he was wasn’t an option, and almost anything would be preferable, including the crown assuming custody. Although, I think it important to keep in mind is some kids have a genuine fear for there safety whilst in those units and suicides are more common with youthful inmates (Look to Australia); surely these fears and exposure to more incomprehensible violence is not helping to guide him into more positive, better reasoning. Half these kids cannot cope with the hard knocks these kids get on a daily basis; such knocks often lead them to spiral out of control behaving in ways that we cannot understand. I find it so sad to see young children struggling to serve custodial sentences; youth, due to their emotional immaturity and impulsive behaviour often wind up harming their prospects and often have outbursts due to the unnatural place they find themselves, which when your in on a undefined youth sentence can have very negative implications. They simply have a much harder time coping with the stresses of being incarcerated relative to the adult prison population.

        I would advocate for a different type of facility, one focused on educating them and to not treat them like hardened inmates which merely reinforces the negative perception they have of themselves and their place in society. Surely education and behavioural therapy is the key to breaking the cycle. Or maybe even community placement (although I also concede managing such a child would be beyond most people) I assume based on the severity of this offence criminality is deeply entrenched in who he believes himself to be and that is going to take considerable work to change this closely held belief of himself.

        I was helping a child (17) deal with post release he had no family he could go to; one evening I went to his house for a tutorial and his lights where off and his fridge was filled with rotten meat, his power had been off for days and he had no idea why or how to get it back on. This is the level of ignorance that some of these kids have to live with and manage, and upon releasing them is when the harm you mentioned occurs, locking them up at such a young age diminishes the learning potential and therefore harm to the individual in question and to society when they release a young person with minimal interpersonal skills who will most likely not reintegrate and end up causing more harm to society.

        The village analogy provided me with some insight into why people don’t even attempt to deal with the root cause of criminal offending, obviously the problem is a large one intermixed with numerous other problems some say its poverty, in any case to solve the problem we would need an entire social redirection, and it can’t be solved by the government alone, more people need to realise that its everyones society equally and do there part to help these men learn to read reintegrate and that includes giving them chances. It surely must be an expensive problem to fix seeing as no country has even come close. Although I think it a fair statement to say that criminal offending isn’t as prevalent in nations with a liberal approach to incarceration, where short rehabilitate sentences are imposed seem to be the only success story in reducing reoffending.

        In any case surely an indicator to their inability to form full blown adult mens rea is the fact that they end up doing the most harm to their own lives with their impulsive behaviour. surely that in itself is evidence of youthful impulsiveness overriding their own best interests by increasing their sentences with what is seen as defiant and irrational behaviour.

        Thanks for you time and input

        Liked by 1 person

      • There was a show this week on 60 Minutes about a prison in Germany that concentrates on rehabilitation. There’s also an article in the Guardian on similar prisons in Sweden. There are probably reform groups and agencies that you might find by an on-line search. Sometimes pursuing your passion and making a difference begins with you doing some research. It is unlikely that you are alone. Find a way to either lead, join, or contribute in some way to solving the problem in a practical way. Everyone chooses their own battles.

        Liked by 1 person

      • Hi again, Marvin, my comment below also kind of addresses your point. I agree entirely with the notion of a just, proportionate penalty. the problem is, how do we identify WHO the just penalty applies to? we can’t apply it (in our system) to those who weren’t responsible. How do we identify them? Among other things, actus reus & mens rea. Or else just cast the net out as wide as you can and see how many people can be caught without such a safety device. (and of course there are many crimes that don’t require intent or recklessness at all)


      • The criminal justice system deals only with the offender. It has the responsibility of correcting his behavior. The contributing factors of community poverty, unemployment, gangs, drug trade, gun violence, etc. are matters that must be addressed by the community, the city/county, the state, and nation.

        When you have an automobile accident or an aviation accident, you attempt to find all of the relevant, contributing causes. Often a tragic accident is the result of multiple failure points — including a failure in system safeguards. Preventing future accidents may require correcting multiple problems. But solving each problem reduces the probabilities of another catastrophic accident.

        However, the recent discussions about free will and whether anyone has any real responsibility for anything is fruitless and counter-productive. Clearly one of the most relevant causes of the criminal act is the deliberate choice of the offender to commit the act. And that cause must be addressed and corrected no matter what else is done.

        Rehabilitation relies upon the presumption that a person can acquire the knowledge and skills needed to make better decisions in the future. The goal of rehabilitation is an autonomous person who will make more appropriate choices of his own free will. If he cannot, then he may need to be locked up indefinitely (or followed around by a monitor) to insure the safety of the rest of us.

        Attacking free will undermines rehabilitation.


  4. Hi Dave..there is such a lot of good food for thought in your comments! I would take issue with your opening paragraph tho: “One thing you said though their cannot be action without intention and it seems you are suggesting all intention is formed with a sound capable mind..” ah, actually I was making the point that this is what we presume is the case in our system of criminal liability; and that is the problem. The case I referred to involved a young who simply did not have (at the critical moment) the ability to make choices that we presume he has. Why indeed, then, make such individuals liable? So I was referring to the system we have of creating a judgment that someone has committed a crime. in that very narrow question of legal liability we take very little cognisance of who people really are. We don’t look at their character, we rarely look at anything that made them into the person they are at the time they offended.Our questions at the level of serious crime are simply: Did D carry out X behaviour? If so, did D do this AND mean the bad result to happen or at least think there was a risk the bad thing result happen? We don’t ask, as you suggest above whether they were were capable of forming mens rea (unless there are mental health issues or other obvious matters that prevent them from being aware of they are doing) we just ask: did they form it? We ask very little about the person as she really is. It is only at sentencing stage usually that questions of background and character begin to matter; and at that stage D is vulnerable to all those risks you point out in your post about the oppressive and capricious nature of much of our punishment regimes.

    but if we are going to have any criminal system to identify people who have caused harm to others, how are we to make those decisions as to whether they are guilty or not? Just looking to harm alone as the marker of criminal liability holds many more fears for individual liberty than our current notion of criminal liability requiring mens rea and actus reus. Sigh.


    • yea sorry, that paragraph was a bit of a typing disaster now I read back through it. The statement I was attempting to make you actually made, sorry I should of read your reply more carefully.

      I completely agree with your point of regarding momentary compulsion arising independently of any formed intention but out of impulse; possibly due to the fact that this undeveloped brain was severely injured and therefore not functioning at its usual child level. Not having that impulse to stop what he perceived at that very moment of danger; or capture. Its easy to see how a young man; a child frankly, already burdened with a diminished ability to determine right from wrong (with a brain injury) could be find themselves in that situation. And as you say the criminal liability for the death is strict automatically attaching to this poor young individual.

      I also agree with your assessment of the narrow, rigid scope of criminal law and the strict liability approach in to attaching the responsibility to someone is harmful and ignorant approach to this kind of offending and its stupid automatically laying the blame down before tests could of been conducted on this young mans mental state. The strict attachment of liability put the onus on a child to present a defence for his own life and given his past experiences with the law he probably doesn’t have much faith in the system. It fails to take into account the reason why he was there with a knife; youthful stupidity, and general ignorance. Combined with a brain injury, the fact he is going to be sentenced by a court possibly to a term of imprisonment is a miscarriage of justice. A child, with brain damage held responsible out of factual circumstance it’s a bloody shame. ….

      It’s not good enough to provide sentencing discounts once a conviction has been passed it makes no difference to the time served (generally) or the fact that you’re are tied to parole for life. I suppose you can look at the law in all its blind wisdom; and it can be either the pinnacle of fairness; of horrible miscarriage of justice that takes a blanket approach to deterring mens rea which negatively effects minority’s and poor people and does nothing to address the cause of offending. Possibly this kid does need help; maybe he needs to be sectioned or something I just cannot for the life of me see who wins in this situation.

      Everybody looses


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