Throwing Away the Key: An Examination of the Renaissance of Preventive Detention in New Zealand

Abstract

The indeterminate sentence of preventive detention has experienced a renaissance in New Zealand since the 1980s. What was once a seldom used, emergency provision intended for application to the most dangerous offenders in our society, is now used with alarming frequency: while fifteen offenders served sentences of preventive detention in 1981, the number had risen to 263 by 2014. This thesis seeks to explore the forces driving the renaissance of preventive detention in New Zealand.

Throughout advanced liberal democracies, there has been a shift toward risk driven penal policy. Significant social, political, and economic changes in these societies from the 1980s onwards - such as the neoliberal reforms, and the associated uncaging of risk; social liberation and restructuring; and the cultivation of lifestyles; have contributed to, and exacerbated ontological insecurity and anxiety. The delegation of risk by the state to the individual has produced the variety of benefits and opportunities it was intended for, however it has also left people feeling insecure about their safety and wellbeing within the modern society, knowing that the shrunken state is unwilling, or unable to intervene and protect them. The expansion of preventive detention is an example of the state stepping in and performing a ‘spectacular rescue’ (Pratt and Anderson, 2016: 12). The revival and expansion of preventive detention has been part of the response of the New Zealand government to the intolerable risk of irreparable and irredeemable harm, posed by violent and sexual offenders in particular.

The significant increase in the use of preventive detention is representative of a wider trend of risk driven penal policy throughout the main English speaking societies. While the parallel strand of punitive penal policy has been explored in great depth, the trend toward risk driven penal policy has elicited less focus. Within the literature, there is a lack of identification of risk driven penal policy as a separate strand of development, subject to a separate line of inquiry. This thesis seeks to add to the literature on the influence of risk, exploring it as the driving force behind the revival of preventive detention.