Tuesday, October 05, 2004

Prisoner Compensation

I see from No Right Turn that the Government has announced its policy on Prisoner Compensation. The policy announcement appears to address two separate issues.

(1) How to prevent prisoners getting compensation payments or failing that making absolutely certain they don't benefit from them.

(2) How to try and get money for victims of crimes when perpetrators "come into money"

The first part of this policy deserves all the opprobium NRT heaps on it but nonetheless contains a kernel of sound policy. In fact, if you strip away all the excess spite, fearmongering and verbiage youare left with a very sound policy reproduced in full below -

"Stopping the breaches is the most effective way of stopping compensation payments"

Unfortunately much of the rest of the policy runs counter to this nugget of common sense. Apparently it will be ok for corrections staff to break the Human Rights Act, Privacy Act and the Bill of Rights provided the breaches are not "exceptional cases". (Exceptional for whom). And even then nothing happens if they can stop the prisoner complaining "at the earliest opportunity".

Not surprisingly we need to spread the net a bit wider for the second part of the proposal.
Victims will of course be able to bring civil claims for damages not only when the offender receives state compensation but also for any other windfall gains such as inheritance, the proceeds of any book written, or even winning lotto

Should a prisoner gain compensation the government will suspend the statute of limitations, hold the money in trust for any victim that may bring a successful claim and "take measures" to assist the victims bring their claims.

Now I don't have any problem with victims getting compensation whenever possible but this issue has nothing to do with prisoner compensation. The victim of a criminal who is sentenced to a prison where they obey the rules is no less deserving than a victim whose attacker is sent to the Kiwi version of Abu Ghraib. We have long recognised with accident compensation that adversarial damages claims are a much more effective way of taking money off defendants than delivering it to complainants. Why then is this the preferred model for obtaining victim compensation under this policy?

The statute of limitations is there for a reason. Physical evidence degrades. Exhibits get lost. Witnesses forget or their memories get corrupted. Or they die or leave town. Justice becomes increasingly expensive and increasingly uncertain as time progresses and the law has recognised this by imposing a six year limit for civil cases. None of the above processes stop just because the defendant is in jail.

By far the best time to assess criminal damages is at the original trial. The factors affecting damages will almost always be relevant to sentencing and the additional costs for the trial judge to make a damages (reparation) award are minimal. Under current law the judge often declines to make such an award because the accused lacks the means to pay. This law could easily be changed and the victim would then have the same right as any other creditor (we could even make them a preferred creditor) if the prisoner subsequently receives money from any source. This debt (and other debts) could be protected by amending the insolvency act so that bankrupts going to prison would not be eligible for automatic discharge until three years after release (ie the period of bankruptcy would be "frozen" while the bankrupt was incarcerated). This seems much preferable to overriding a statute of limitations. It also removes any element of retrospection since the compensation order is made by the trial judge at the time of original sentencing.


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