Guest Post: Prisoners hairpieces and human rights

A guest post by David Garrett:

On 16 March 2017, Justice Wylie decided that  denying convicted paedophile and murderer Philip John Smith his hairpiece was a breach of his “human rights”; more particularly, his  right to “self expression”. I know nothing of Justice Wylie or his antecedents, and if I did, I would be very loathe to comment on them, for obvious reasons. But surely this decision prompts – at the very least – a discussion on just what “rights” prisoners in New Zealand jails should enjoy?

It has long been a left wing mantra that here in Godzone, prisoners are sent to jail “as punishment, and not FOR punishment”. Decoded, that clause means that the punishment handed down by a Judge is limited to the deprivation of liberty – the loss  of the right to take the dog for a walk, buy an ice cream at the dairy, and have a beer on the deck in the evening. All other human rights supposedly  remain unaffected: now  we see the right to “self expression” being specifically preserved in the form of the right to wear a hairpiece which was employed as part of a disguise used to  escape lawful custody.

The right to “self expression” appears to be one with few boundaries: recently I saw a UK documentary in which vandals quite openly said that trashing public and private property should form part of their right to “express ourselves”. Rather than guffaw in amazement, the interviewer nodded wisely, and appeared to think that was a reasonable argument.

Well, my view is very different.  Fifty  years ago – which of course is an eternity to millenials – bouncing a cheque was considered to be a shameful thing which warranted a short prison sentence. As recently as 1974, Elton John’s then manager served a 30 day sentence in Mt Eden for assaulting journalist Judith Baragwanath. (His sentence was confirmed on appeal).  

Forty odd years later, it is extremely difficult to get sent to prison: on average a prisoner has appeared before the courts  eleven times – that’s eleven appearances, not eleven charges – before he is sent to jail. Therefore, it is fair to say that prisoners are, with very few exceptions, what used to be called “bad bastards.” So what human rights should those bad bastards enjoy? I do not believe that liberty is the only thing prisoners should lose.

Commenters on Kiwiblog frequently argue that the worst  murderers should forfeit life itself; that capital punishment is the only just penalty for deviant humans such as Philip John Smith. The reality is that there will never be a restoration of capital punishment in New Zealand, no matter how egregious the offence, or how certain the offender’s guilt.  I have on other occasions set out the reasons for my view that it would be inappropriate – and indeed counter productive – if murderers  here faced the death penalty, even as a discretionary sentence.

But that is an entirely different issue from what rights are appropriate for prisoners of the New Zealand justice system. Given the reality – that to be sent to prison one usually  has had to be convicted of numerous offences, often involving violence – I nail  my colours to the mast, and say that a prisoner’s rights should be substantially fewer than those of other members of the community.

Prisoners used to be distinguished by what they wore: their uniforms were either arrows (never quite got the rationale behind that) or horizontal stripes; either way, the intent was to make them immediately distinguishable  from law abiding members of society, both within the jails and  if they escaped. Prisoners used to have their heads virtually shaved – today’s equivalent of a “number two”. So long as they behaved, they were fed adequately – somewhat better than prisoners of war – but put on “Number One Diet” if they misbehaved.  Prisoners who were determined to buck the system could find themselves in solitary confinement, potentially for many months.

So here we are, fifty or sixty years later. Prisoners wear what they like. The prison barber will cut their hair as they wish. There is no solitary confinement, or Number One Diet – that would breach the prisoner’s human rights. As of 16 March 2017, bald prisoners’ human rights include the right to wear a hairpiece – even if the wearing of that rug aided their escape.

In my view, the case of Philip John Smith and his hairpiece should prompt a wholesale review of the doctrine that deprivation of liberty is the only punishment prisoners should suffer. It is my personal view that prisoners should leave a whole suite of “human rights” at the prison gate: they have by their actions, disqualified themselves from the right to wear what they like; from the right to have their hair cut as they wish; the right to have their food fads indulged;  from the right to assuage their vanity by the wearing of a hairpiece.

Establishing a set of prisoners’ rights would legislatively be very simple: an Act setting out what those rights were, and an amendment to the Bill of Rights Act (BORA) that made it subject to the Prisoners’ Rights Act. But while the enabling legislation would be simple and short,  the change in culture would be huge – the last two generations before the present have grown up with a focus on their extensive and inalienable rights – and being “non judgmental” is seen as  perhaps one of the most important.

The corollary of that is that prisoners are seen by many as being individuals who just need  help support and compassion – and perhaps a dose of religion – in order to become good citizens. Sadly the reality is, in my view, very different. In short, and with very few exceptions, most prisoners – and almost all of those who have been to prison more than once – will keep offending until age wearies them of incarceration, usually by their 40’s.

So what do I think prisoners’ rights should be? Obviously the right to be adequately housed and fed – but “adequately housed” should not include underfloor heating in cells. If pensioners have to go to bed early in the winter because they can’t afford heating, why the hell should prisoners be better off? Prisoners ought to have the right to prompt and adequate  medical care – but not access to more than basic dentistry. Many ordinary working people cannot afford to get a root canal or a crown, and thus have an extraction – once the pain becomes unbearable. Again, why should prisoners have it any better?

Prisoners should once again have to wear distinctive uniforms, both to reinforce their status, and to make them easier to catch if they grow tired of accommodation courtesy of Her Majesty. They should again have number two haircuts. They should again face meaningful punishments within jail for breaking or disregarding the rules.

I do not expect any of this to happen – I believe our society has gone too far down the road of soft treatment of those who break its rules, and towards a focus on rights to the exclusion of responsibilities. But let us at least have a debate about it.  If a declaration by a High Court Judge that  to wear a hair piece used as part of a disguise facilitating an escape is a “human right”  does not prompt us to reconsider prisoners’ rights, surely nothing else will.