We’re at a Corrections crossroads, argues Paul Little. New Zealand already has the second-highest incarceration rate in the Western world, so do we keep building prisons – or do we change direction now to a less punitive, truly rehabilitative justice and penal system?
That’s why the decision not to build a $1 billion prison at Waikeria, but a smaller and cheaper alternative with mental health treatment facilities, was so controversial. It’s also why a recent attempt to repeal the three-strikes law failed at the last moment.
But what can’t be argued is that, with about 220 prisoners per 100,000 people, New Zealand has the fifth-highest incarceration rate in the OECD – and the second highest among Western countries, behind the United States. Or that the cost of keeping people in prison – roughly $110,000 per inmate a year, according to Corrections – is an economic drain. Or that our harsh bail laws mean 30% of people in prison are there on remand, awaiting trial, even though 25% of those will not be convicted. Or that our recidivism rate means more than half of those who do serve time are reconvicted within 24 months of being released from prison.
The voices proclaiming that locking people up isn’t the answer are growing in number and volume, while those who have long controlled the debate and advocated ever more punitive policies are being marginalised by a reform-minded government. This is why Justice Minister Andrew Little has convened a summit to canvas various points of view and look for some solutions. And if we want a system that does a better job than the current one, alternatives aren’t hard to find.
Life before prison
The best alternative to prison is crime prevention, which has to start in early childhood. “Whatever we do in the prisons, we are only tinkering around the edges,” says University of Canterbury sociologist Jarrod Gilbert. “Many people are in prison because they have been failed by family, community and state. If we want to reduce the prison population, we have to reduce crime in the community and that means addressing the drivers of crime.”
Among those, he cites: “Intergenerational poverty, [lack of] educational achievement, and violence in the home”, which normalises violent behaviour and makes someone more likely to go on to commit serious violent crime.
Gilbert and others maintain only a coordinated effort in the early years of life will achieve results. That saintly teacher who sets a kid on the straight and narrow can’t do it alone. For one thing, half of children who offend aren’t even going to school. Parents, teachers, police and wider whānau are among those who need to be cooperating to prevent kids growing into criminals.
“If your parent is in prison, your chances of going there increase tenfold,” says John Sinclair of the Howard League for Penal Reform. “The people who will go into prison in 10 years are currently with CYFS [now Oranga Tamariki]. They’re kids in school who aren’t learning to read, or who have hearing problems. It’s not hard to find these people. All the social problems we’re not fixing are feeding the prison population.”
Lawyer and Māori Legal Service director Moana Jackson has interviewed hundreds of former prisoners. “More than 80% were taken from their whānau and placed in care,” he says. “And of that group, more than 70% were abused in care. That’s the pipeline people talk about: if you have a man raped at six years old, and consistently raped and abused through the Department of Social Welfare institutions and justice facilities, he becomes a rapist. So, when he can’t understand the harm of his raping, it’s because he blocked out the harm that was done to him.”
Former Prison Service head and research fellow at Victoria University’s Institute of Criminology Kim Workman says the treatment programmes favoured in prison are flawed because they take no “cognisance of the fact those people will live in families when they leave and will have to relate to those families. In some cases, those families are seriously dysfunctional and in some cases not. Unless we engage the whānau and their existing community, we are doomed to fail, regardless of any great programme in the prison.”
One group in particular that needs to be targeted by reforms is Māori, for whom, notoriously, so many social indicators are worse. “The first people imprisoned in substantial numbers were Māori,” says Jackson. “Then prisons became part of controlling and subordinating those Māori who refused to give up their land and their authority.”
Gilbert says the discourse that New Zealand has a relatively high overall incarceration rate by world standards misses the mark. “It’s the internal comparison, between Māori and non-Māori that is more interesting, and more troubling, for New Zealand. It’s more accurate to say New Zealand has pockets of incarceration rates at such high levels in its indigenous population that they distort the national picture.”
Life in prison
A significant number of people are in jail because of recent law changes in response to calls for a tougher approach to crime. Since the Bail Amendment Act of 2013 made it harder to get bail, the number of people in prison on remand has doubled. In the 2018 fiscal year, of the 11,201 total prison population, 3455 were awaiting trial.
“Even some people who are charged with what I call offences of poverty, like benefit fraud or shoplifting, who’d normally have been remanded on bail, are now remanded in custody,” says Jackson.
People who have not been convicted of a crime – and might expect to have a presumption of innocence until proven guilty – now make up 28% of the prison population. Not only does this add to the number of inmates now, it’s contributing to the future muster. According to the recent report from the Office of the Prime Minister’s Chief Science Advisor, Using Evidence to Build a Better Justice System: “It is well documented that pre-trial detention has a ‘criminogenic’ effect on those remanded (that is, people lose jobs, homes, relationships, acquire more criminal skills and build more offender-based social networks when imprisoned).”
Approved housing is now a requirement for bail and parole. You can’t get bail if you’re homeless or live with a gang, which adds yet another cohort to the number who are in prison, not because they have been convicted of a crime but due to circumstances over which they have little or no control.
Within prisons, there are numerous educational, psychological, career training and other programmes available to help prisoners. There are some impressive numbers in Corrections’ last annual report: 1000 prisoners completed intensive drug and alcohol treatment programmes, 1443 received intensive literacy and numeracy support, and there were 2226 work placements. But resources are still stretched thin and the programmes can be hard to access.
Workman says prison should reflect the outside world. “If you want people who offend to live productively in society when they leave prison, you have to replicate the conditions of the external community within the prison.” That could mean “things like open prisons in the last six months of the sentence where prisoners could stay in the prison but work in the community, as they do in Holland and other places”.
Open prisons are operated successfully in Scandinavia and some European countries, with offenders often transferred there for the final section of their sentence as part of the transition. “They look like a school campus,” says the Howard League’s John Sinclair. “Guys live there, do public works stuff and access normal services such as dentists or doctors out in the community.” People are sentenced locally so they’re close to family and can look for work where they’ll be living.
“They still have maximum-security prisons [in these countries], but most of their prisons are designed around reintegration. We have nothing of this sort, even though 50% of our prisoners are classified minimum or low security.”
In 2002, our parole laws were amended to make parole dependent on an assessment of risk, effectively meaning more people serve more of their sentences in custody. Future changes to the legislation could be made to reduce the number of prisoners just as swiftly and simply. However, tough-on-crime advocates have made the relevant authorities parole-shy. “For the Parole Board, the dilemma is it doesn’t have the ability to be sure there’ll be adequate controls around a person in the community to let them out with any confidence,” says Devon Polaschek, Waikato University professor of psychology and of crime science. “As long as we pound the board every time someone does something conspicuous, they won’t take more risks.”
Ironically, this may be counter-productive. According to Polaschek, the longer people spend on parole – ie, out of jail but under supervision for the balance of their sentence – the better they do in the long term. People who were paroled closer to the end of their sentences did not do so well. She’s not sure why. “But the more the person’s probation officer tries to create that positive relationship and to treat that man fairly and convey a sense that they care how well he does, that affects reconviction and re-imprisonment,” she says.
There’s a precedent for such a change: in 1985, parole conditions were relaxed and roughly a third of prisoners were released. This was a time when the total prison population of around 3000 was regarded as far too high. It’s since mushroomed to more than 10,000.
What about the victims?
The needs of the victims of crime go unmet by the current emphasis on punishment, believes former Prison Service head Kim Workman, now a research fellow at Victoria University’s Institute of Criminology. “We haven’t properly invested in victims,” he says. “There’s been a focus on victims’ rights rather than victims’ needs. Also, we define victims only in terms of the immediate personal victim. We disregard the wider family and how the traumatising effect sometimes spreads into a whole community.”
The face-to-face encounter that is central to the restorative justice process is particularly healing. “We had victims coming five or six years later, saying, ‘I can’t get that offender out of my mind. I want to tell him exactly what he did. I want to meet with him.’”
Workman says 93% of victims who went through the process said they’d recommend it. “Their message was often, ‘I thought I was going to meet a monster but I met a socially pathetic individual who I felt sorry for’, and what a help that was. Victims feel much better represented and assisted by that process than having the person who did something to them taken away and that’s it. They’re locked out of the process by that.”
There is no shortage of impediments to prison reform. Conspicuously, there’s the moral panic to hose down. Scaremongering in defiance of the facts has driven public debate on crime and punishment for the past few decades. “If it’s the only thing you’ve been told, that’s what the public will believe,” says Jarrod Gilbert.
However, statistics for the 12 months to May 2018 show a 3.9% decrease in criminal acts against property and people, while a report released in August found the number of crimes committed by those aged 19 or younger has fallen 30% in the past four years.
The consequence of this gap between perception and reality means prisons are an easy-to-press political button. Kim Workman says both National and Labour have found there are votes to be had in taking a firm line on prisons and promoting their use. In the past six years, he adds, “there have been something like 15 pieces of legislation introduced – 11 relating directly to prisoners and offenders – that have breached the Bill of Rights.”
When considering those suffering from the exploitation of crime and criminals for political gain, we should also spare some thought for the Department of Corrections, faced with the impossible task of keeping up with the increasing demands of their political masters. Their efforts to provide vocational training and other assistance to prisoners, for instance, must be made in the face of political and public indifference, if not downright hostility.
It’s not as if they don’t know what works. Just ask Stephen Cunningham, the department’s director, offender employment and reintegration: “How does Corrections stop people coming to Corrections? The best thing is, while they’re engaged with us, to work on their rehab, education, alcohol and drug dependency. And more support to reintegrate later.”
The end may be in sight. Justice Minister Andrew Little is clearly reform-minded and knows he has to bring the public with him if he is going to change anything. To that end, he has convened a Safe and Effective Justice Programme Advisory Group, featuring a wide range of authorities and advocates, and is holding a Criminal Justice Summit on August 20. “As well as victims’ voices, there will be those who’ve served sentences, psychologists and other specialists,” says Little. “I don’t want to do too much in the way of reforms and new laws until we’ve had the debate.”
His plan to repeal the three strikes law was shot down due to opposition from New Zealand First – which would have made the throw-away-the-key brigade happy. Little understands how people feel. “There are legitimate concerns,” he says. “People want to know they will be safe. The discourse of the last 30 years has played to that. It tends to focus on isolated and dramatic cases. But most offenders in prison aren’t at that end. We also have to acknowledge the voice of victims and the fact that the system hasn’t accommodated them very well. I’m confident there’s a lot more we can do. There will be a lot about victims.”
In a reactive political environment, Little will have to fight for vital cross-party support, but he’s sure there are many National MPs who can put the public good first. The appointment of former National MP Chester Borrows to chair the advisory group may serve to encourage the others. “I’ll certainly be reaching out and involving them in the discussion,” says Little. “Ideally, we’ll get to a point where we get as much cross-parliamentary agreement as we can.”
And then, perhaps, with goodwill, smart thinking and hard work, there’ll be fewer places in prison for people who shouldn’t be there.
Why did Māori never have prisons?
The heading above is the title of a talk by lawyer Moana Jackson that’s available on YouTube. When he proposed a Māori justice system in the 1980s, the idea was not well received. “It flew in the face of the ‘one law for all’ rhetoric,” he says. “But in 1840, there was one law for all – our law. Colonisers chose to ignore it. One of the difficulties we have in talking about how a Māori justice system operated is to overcome the colonising myth that Māori didn’t have real law.”
Historically, Māori transgressed like any other humans, says Jackson. “But because of the particular social and cultural attitudes that had developed, there was almost no such thing as what we now call domestic or child abuse. If a wrong was committed against a child, it was one of the most serious wrongs that could be done, because you not only abused the tapu or specialness of that child but also his or her whakapapa, the wider whānau to which they belonged, but most important, the whakapapa to which the wrongdoer belonged.”
If a wrong was done, the focus was on the harm done to the victim. “We had an institution called the pokai tara to deal with issues that could not be mediated between the whakapapa of the wrongdoer and that of the person wronged.”
The pokai tara was chaired by a tohunga, who was joined by representatives of the wrongdoer and the person wronged in a three-person panel.
“Their task was not like that of a Western legal system asking, ‘Guilty or not guilty?’ They began with two questions: ‘Do you understand the harm you have done? Do you know who you have harmed?’
“The first question led to a consideration of what had been damaged and brought the wrongdoer to understanding and accepting that. The second question led to a question of how the relationship could be mended. The ultimate sanction a pokai tara could impose was banishment from the whakapapa.”
Transgressors were sent to whare mārie, which Jackson says is hard to translate, “but ‘a place of peacemaking’ is probably the closest”. Temporary buildings were set up as needed; whare mārie housed transgressors not for a defined length of time, as in a prison sentence, but until healing was complete.
Life instead of prison
Community-based sentences are often touted as a progressive alternative to prison, but they aren’t what they used to be. “Many years ago, they abandoned periodic detention,” says Kim Workman.
Offenders sentenced to PD were confined in special facilities – not prisons – from Friday to Sunday. “They used to run rehab-type programmes in those weekends. A lot of the wardens were young community workers who did innovative stuff. We very rarely do anything rehabilitative these days in community sentences.”
Perhaps our concept of justice is due for a rethink. “We need to substitute the idea of accountability for the punitive approach,” says Workman, who’s run restorative justice conferences. These, in essence, bring offender and victim face to face in order to get the former to acknowledge the wrong they have done to the latter, and to work out how they can make it up to them.
Currently, we think of offenders as being accountable to the state, a concept they often cannot comprehend. “But if we said to them, we’re holding you accountable to the people you’ve harmed directly – to the victim and the community you live in – they can visualise and understand what that means,” Workman explains. “That’s a powerful tool in terms of offenders realising who they’ve harmed and the extent of it. Often, that was a motivation to change.”
But don’t our current prisons at least change some people’s behaviour for the better? Indeed they do, but that misses the point, says Moana Jackson. “That would be rather like saying, ‘School works for most kids, so it’s okay.’ School might work for the majority, but does that mean we ignore the minority for whom it doesn’t? And prison is the reverse – it might work for the minority, but should we ignore the majority for whom it doesn’t work?”
This article was first published in the September 2018 issue of North & South.