National MPs refuse to accept free book about failures of justice system

Before the recent election, Wellington alcohol and drug counsellor Roger Brooking offered to give a free copy of his critical expose of the justice system to every member of Parliament. His new book is called Flying Blind – How the justice system perpetuates crime and the Corrections Department fails to correct. He asked Chester Borrows (National), Grant Robertson (Labour) and Kennedy Graham (Greens) to meet him on the steps of parliament on September 13 to accept copies on behalf of their respective MPS.

Grant Robertson and Kennedy Graham agreed. So did Mr Borrows – at first. But after consultations with caucus colleagues, he changed his mind. In a churlish display of ingratitude, the National party has refused to accept copies of the book out of fear that the title of the book is too provocative. Mr Borrows wrote to Mr Brooking saying:

“I think the subtitle of the book runs counter to the current achievements in Corrections…. No matter how you may mitigate the subtitle within the pages of the book, the immediate proposition will be what is reported and perceived. I believe that appearing to receive the books will look like an endorsement of a publication which sets out to be provocative and will be seen as counter to any rehabilitative work being done in prisons presently.”

Is this a classic case of judging a book by its cover? Readers can decide for themselves.

Unfortunately, such anti-intellectualism is rampant in New Zealand politics and undermines the use of academic research and the development of evidenced-based policy. The Prime Minister’s chief science advisor, Sir Peter Gluckman, seems to agree. Sir Peter is quoted in Flying Blind saying that New Zealand is still driven by a No 8 wire mentality.

Brooking makes the case that Garth McVicar is the chief proponent of the No 8 wire mentality in this country. The problem is McVicar is a farmer – with no qualifications in law, sociology, psychology or criminology. Flying Blind describes the links between Garth McVicar and the National party and shows how this relationship is responsible for much of New Zealand’s overly simplistic, ‘lock ’em up’ approach to penal policy.

Prisoners bored to death and forced to sleep in the toilet – the case of Trevor Ludlow

In May 2006, National Finance went into receivership owing more than 2000 investors about $21 million. In October, 2011 one of the former directors, Trevor Ludlow, was sentenced to five years and seven months in jail. He was found guilty of charges laid by the Serious Fraud Office relating to theft as a person in a special relationship. He was found to have breached the terms of the trust deed under which National Finance operated, personally defrauding investors of an estimated $3.5 million.

Since he was sentenced, Mr Ludlow has been held in Mt Eden, at the brand new purpose built prison for inmates on remand. Ludlow is not on remand but has been kept in Mt Eden because it’s close to court and he was still facing eight additional charges of misleading investors and making false financial statements.

“Nothing to do” in prison

Mr Ludlow pleaded guilty to those charges on December 13. During court proceedings, he broke down in tears complaining: “There is nothing to do in Mt Eden … it’s a horrible environment. It was awful to sit around all day with nothing to do. It’s terribly frustrating.” Ludlow said he had enrolled in a correspondence class but was not being allowed to do it in Mt Eden prison. He asked the judge to sentence him within the week because once sentencing takes place he will be moved to another prison.

Not surprisingly, there has been little sympathy for Mr Ludlow. The judge said: “I can’t help you. You’ve been found guilty and sentenced to jail.” Callers to talkback radio commentators were even more scathing and thought that Mr Ludlow was getting his just deserts.

Fair enough. Ludlow deserves to be in prison. But his comment that there is ‘nothing to do’ in Mt Eden prison contradicts earlier claims by Garth McVicar that the new Mt Eden prison is a ‘better environment’ and run like ‘Club Med’. Prisons are soul destroying environments with very little rehabilitation or work opportunities and Mt Eden is no different.

Bear in mind that Mt Eden prison is run by Serco – a private company in a private-public partnership with Government. When the contract was awarded in 2010, former Corrections Minister Judith Collins (now Minister of Justice), said Serco had a “strong track record in running jails, and would bring fresh ideas to the prison’s management. I’m confident that the company will bring the high standards of professionalism, safety, rehabilitation and security expected by the Government to Mt Eden/ACRP.”

Forced to sleep in toilets

Judith Collins failed to do her homework. Serco is not the squeaky clean company she claims it to be. At a Serco run prison in Britain, prisoners have been forced to sleep in toilets because of overcrowding. Prison inspectors uncovered the practice during an unannounced visit to Doncaster prison in 2008. The chief inspector of prisons, Anne Owers, said: “We were disappointed to find that two-person cells had been turned into three-person cells by placing a bed in the shared toilet.”

Two years earlier, the inspectorate criticised the company for “institutional meanness“ after finding there were inadequate mattresses, and many prisoners had no pillows, no toilet seats and nowhere to store belongings. The chief inspector branded conditions at Doncaster as “squalid and deteriorating”. Serco now runs four prisons in the UK. If the Wiri prison goes ahead and Serco gets that contract as well, it will operate two prisons in New Zealand.

Conditions in New Zealand are not much better; our prisons have become so overcrowded that Judith Collins decided to put inmates into shipping containers. These containers are quite small and some have two beds – and every cell has a toilet next to the bed. New Zealand prisoners are also ‘sleeping in the toilet.’

No rehab on remand

But let’s get back to Mr Ludlow who’s dying of boredom in Mt Eden. The Serco run Mt Eden prison was purpose built to hold prisoners on remand – those who have not yet been sentenced. Approximately 14,000 New Zealanders spend time on remand every year. The point is remand prisoners are not eligible to attend rehabilitation programmes because they have not yet been convicted of anything.

So it seems that Trevor Ludlow is being held in a remand prison even though he has already been convicted – but Serco is applying its (remand) rules which appear to prevent him from even starting a correspondence course – which Serco doesn’t even have to pay for because Ludlow’s organising it himself. Is this just another example of ‘institutional meanness’? Ludlow needs to keep himself occupied as he almost certainly won’t be eligible to attend rehabilitation programmes in prison. This is because he’s in his 50s and (presumably) has no previous convictions – so will be classified at low-risk of re-offending. Only medium and high risk prisoners are allowed to attend rehabilitation.

So while Trevor Ludlow does not deserve much sympathy for the fact that he is in prison, his tearful comments to the judge about prison conditions in New Zealand should not be ignored. Mr Ludlow is currently in a prison run by a private company with a documented history of poor care and ‘institutional meanness’. Once he is sentenced on his current charges, he will be moved to a prison run by the Corrections Department – where he will also not be eligible to attend rehabilitation programmes. If he’s lucky, he just might get to do his correspondence course. But he’ll still be sleeping in the toilet.

$350 million missed by Peter Dunne

New Zealanders want the Government to toughen up – not by putting more people in prison but by tackling the death and social destruction caused by binge drinking. Research conducted on behalf of the Ministry of Health shows huge public support for moves to raise the minimum price of alcohol. The survey shows the vast majority support raising the price with only 24% opposed; 65% support reducing the hours alcohol can be sold; more than 75% support raising the drinking age to 20 (including 68% of people aged 18 to 24); 82% support increasing restrictions on alcohol advertising; and 65% believe there are too many liquor outlets.

The research validates recommendations in the Law Commission’s recent report on proposed changes to New Zealand’s liquor legislation. The Commission’s recommendations were also endorsed by Prof Doug Sellman and hundreds of medical professionals in New Zealand as the ‘5+ Solution’ – based on the most up to date international research on how to reduce alcohol related harm in society.

Raising the price

The research indicates that raising the price of alcohol – by increasing the tax component – is the single most effective intervention that any government can take. Increased levies would affect two groups in particular – the young, who tend to have limited income to spend to alcohol, and binge drinkers who spend a significant proportion of their income on alcohol. These are the problem groups in society that need to be hit the hardest.

Peter Dunne apparently had the results of this survey sitting on his desk in mid-2010 while National was in the process of seeking further submissions from the public on this issue – but refused to publish it. He sat on the report for over a year and, when it finally became public two days ago, he was accused of suppressing the results. Interviewed on National Radio, he denied suppressing anything, but gave two reasons for failing to publish it. One was that “the data was essentially consistent with a range of public views already available”. The other was that the $10,000 it would have cost to publish “could be better spent elsewhere in the health sector”.

Hollow arguments

These are hollow arguments. Until now, the two main sources of information about public attitudes to binge drinking came from unscientific media polls and public outrage at the damage alcohol has been causing. Coverage given to the death of 16 year old King’s College student James Webster from alcoholic overdose may have been a turning point in public opinion.

However, the research that Peter Dunne had sitting on his desk was conducted by a Ministry of Health committee using scientifically validated methodology and procedures. As such, it was the only reliable source of information on the public attitudes to alcohol law reform available. So to argue that there was no need to publish the report because the data was essentially consistent with an existing range of views is nonsense. Media stories are anecdotal and unreliable and ideally should not be used to guide policy and legislation. For that we need facts, figures and reliable research.

The argument put forward by Mr Dunne that the $10,000 needed to publish the report “could be better spent elsewhere in the health sector” is even more facetious. Mr Dunne expanded on this in his radio interview by saying that Government didn’t want to spend the $10,000 because it was scratching around to find money for its methamphetamine strategy at the time. Once again, Mr Dunne is missing the point – well two points actually.

Alcohol the biggest drug problem

The first is that alcohol is by far the biggest drug problem in the country – not methamphetamine. Alcohol kills over 1,000 New Zealanders every year and according to Bryan Easton, a leading economist, it costs the country about $16 billion a year. In comparison, methamphetamine is involved in perhaps two deaths a year – not from overdose but because of the occasional murder committed under its influence – while alcohol is involved in over half of the 60 to 80 murders committed every year. If a choice has to be made between the social destruction caused by alcohol or by methamphetamine, dealing with binge drinking provides a lot more bang for our bucks.

The second point Mr Dunne has overlooked is that if the Government actually adopted the recommendation to increase the price of alcohol – as supported by the ‘suppressed’ research – this would raise $350 million. That’s what the Law Commission said a 10% increase in the price of alcohol would achieve. And right now New Zealand needs every source of revenue it can find. Christchurch needs rebuilding, public servants are being laid off left right and centre, and the country is facing the biggest deficit in its history.

And we have a binge drinking culture which is out of control. Under the circumstances, Government’s reluctance raise the price of alcohol (and adopt the other measures supported by this research) is hard to fathom. This ‘suppressed’ research suggests Mr Dunne is not interested in what the public clearly wants the Government to do – raise the price – and pick up $350 million along the way. As Revenue Minister, there’s a lot you could do with it; and you’ll get your $10,000 back.

Graeme Burton – untreated drug addict set up to fail

Graeme Burton has murdered two people. In 1992 he was sentenced to life in prison for the murder of Paul Anderson who was working as a lighting technician in a nightclub. Burton had been drinking and was found to be under the influence of six different drugs at the time. He was released on parole after 14 years in prison without attending treatment for his drug addiction. He soon relapsed, and during the next six months he used stand-over tactics against known drug dealers to obtain methamphetamine. He shot and killed Karl Kuchenbecker in the hills of Wainuiomata apparently hoping that police would then kill him. He was shot in the leg which subsequently had to be amputated.

Burton’s Background

Graeme Burton was adopted as a baby by an older couple. His foster father died when he was only three, leaving his foster mother to raise him on her own. As a result of put downs and constant criticism, Graeme grew up feeling insecure and angry with little sense of attachment to his adopted mother. He began using drugs at the age of 15 – and no doubt found they relieved much of his underlying distress.

The TVNZ documentary, ‘Beyond the Darklands’, also highlighted Burton’s use of LSD, cannabis, alcohol and prescription pills; he used to break into chemist shops looking for benzodiazepines and committed burglaries to get money for drugs. From the age of 17, he was using drugs almost on a daily basis; by the time he was 21, he had 91 convictions for property, fraud and other drug-related crimes.

Burton’s frustrations came to a head in 1992, after he was refused entry to a nightclub. He took his resentment and rage out on Paul Anderson who worked at the club, stabbing him to death in an alcohol and drug fuelled frenzy. He was said to be ‘out of it’ on six different drugs at the time.

Burton was sentenced to life and continued using drugs in prison. He spent 14 years behind bars but managed to avoid returning positive drug tests in the last three years before he was paroled. He was released into the care of his biological mother whom he barely knew. She’d been living in Australia but agreed to come back to New Zealand for one month to assist her son’s ‘reintegration’.

This plan was doomed from the start. Soon after he was released, Burton started using methamphetamine and anything else he could get his hands on. His mother went back to Australia and he spent the next few months using stand-over tactics and assaulting drug dealers to feed his addiction. Burton’s last assault on a Wellington drug dealer to obtain more methamphetamine was only three days before he killed Karl Kuchenbecker in January 2007. Altogether, his drug-fuelled rampage lasted six months before it came to an end in the hills of Wainuiomata.

Mistakes made while Burton was in prison

While in prison, Burton attended a rehabilitation programme targeting his propensity for violence – but was not required to attend treatment for his drug addiction. Numerous psychologists and psychiatrists who interviewed him before his release pointed out that his addiction had not been addressed. At the Parole Board hearing in June 2006 (at which he was released), the Board had six different reports all of which recommended alcohol and drug assessment and treatment, or identified relapse to drug use as a risk factor. The Corrections Department refused to provide one.

The Department even ignored Section 43 (1a) of the Parole Act which requires it to provide the Board with all relevant information about factors which contribute to an inmate’s offending. Since the Department was well aware that Burton’s offending was alcohol and drug related and since six different reports all recommended further alcohol and drug treatment, in Graeme Burton’s case, the Department clearly neglected its statutory responsibilities.

Burton’s drug addiction was not the only factor involved in his offending. The psychologists who assessed him said he had a psychopathic personality which pre-disposed him towards violence. To address this, in 2004, he was required to attend the Violence Prevention Unit (VPU) in Rimutaka, and some of the psychological reports indicated he made some progress on that programme. But even if Burton had learnt anything in the VPU, whatever he learnt would have been forgotten as soon as he got drunk or took methamphetamine. Because his drug addiction was never treated, other attempts at rehabilitation were a complete waste of time.

The flawed focus of subsequent investigations

Once the subsequent investigations began into what went wrong, the focus was mainly on the mistakes made by the Probation Service and the Police after Burton’s release. Mistakes were certainly made, but the crucial ones happened long before Burton was paroled. They were made over the entire 14 years that Corrections had him in their custody. The Department failed to treat his drug addiction, ignored the recommendations of six expert reports and failed to provide the Board with an alcohol and drug assessment despite a statutory obligation to do so.

In other words, the Department released an untreated drug addict into the community without a reintegration plan which addressed one of the main factors in his offending. Since Burton wasn’t treated in prison, on release he should have been sent to a residential treatment centre where he would have been under constant supervision by staff for up to 18 months and drug tested regularly; if he relapsed, or misbehaved, he could have been recalled to prison immediately. If a proper reintegration plan such as this had been put in place, the outcome of this case could have been very different.

In saying that, Burton’s case is not unusual. Ninety per cent of prisoners have problems with alcohol and drugs and most are released without attending any treatment. The recidivism rate in New Zealand is 52% (return to prison) within five years. The lack of addiction treatment in prison and the failure to provide accommodation and support on release leads almost inevitably to relapse and re-offending. It sets prisoners up to fail. Graeme Burton is one of thousands of prisoners released every year who are set up to fail.

Legal loophole in drink driving laws

The case of 16 year old Levi Elliot who killed another teenager in a drink driving accident illustrates a significant failing in New Zealand’s drink driving laws.

Background

On May 28, 2011 Mr Elliot and 17 year old Shaun Nilson were drinking at a gathering at a friend’s home in Hamilton. At 1.00am they went for a drive with Mr Elliot driving – even though he was still on a restricted licence and should not have had a passenger in the car. Mr Nilson was killed when he was flung from the car after Elliott tried to overtake another car at speed and crashed into a power pole.

Mr Elliot was found to be five times over the legal alcohol limit (0.03) for his age. This is almost double the legal limit (at 0.08) for an adult. The Government subsequently reduced the legal blood alcohol limit for those under the age of 20 to zero.

On November 17, Justice Ellis sentenced Elliott to three years in prison and disqualified him from driving for four years from his release.

Finite vs indefinite disqualifications

This death was caused by drink driving – and immaturity. Although it is unclear from the available information whether or not Mr Elliot has a drinking problem, this is clearly a death where binge drinking is a significant factor.

Mr Elliot will be eligible for parole after one year. He may or may not be released at that point. But before he gets his driver’s licence back – in fact before any drink driver gets their licence back – they should have to attend an assessment to see if they have a drinking problem and need education, counselling or treatment.

However, the only drink-drivers required by law to attend an alcohol and drug assessment are those given an ‘indefinite’ disqualification – affecting only about 1,500 of the 30,000 people convicted for this offence every year. The vast majority of drink-drivers are disqualified for between six months and 12 months, and automatically get their licence back at the end of the disqualification – with no questions asked.

Mr Elliot was disqualified for four years. This is a finite sentence, not an indefinite one – so he will be able to get his driver’s licence back at the end of that period simply by resitting the test. He will not be required to attend an assessment to see if he has a drinking problem – nor will he be required to attend an alcohol education programme.

This scenario is not uncommon. In September 2009, 71-year-old Alison Downer killed a cyclist near Otaki. It was her fourth conviction. Ms Downer was sent to prison for 2½ years and given an eight-year disqualification. In March 2010, Frances Stubbs was fleeing a police alcohol checkpoint in Blenheim when she crashed and killed a mother of five children. Ms Stubbs was given eight months home detention and disqualified for 3½ years. There are many other cases where someone has been killed by a drink driver and the offender has been given a lengthy disqualification but not been disqualified indefinitely.

How long is indefinite?

Even for those given an ‘indefinite’ disqualification, the outcome is fairly meaningless. There’s nothing ‘indefinite’ about it. After a minimum period of one year and one day, drink-drivers with an ‘indefinite’ disqualification can see an approved alcohol assessor and begin the process of getting their licence back. If they pass the assessment, and resit their licence, they can be back on the road within 18 months. Although 1,500 people a year receive indefinite disqualifications, about 1,000 others with indefinite disqualifications get their licences back each year. Even recidivist drink-drivers with five or more convictions seem to have little difficulty regaining their driver’s licence.

For a detailed analysis of how New Zealand’s drink driving laws encourage repeat drink driving see Flying Blind – How the justice system perpetuates crime and the Corrections Department fails to correct

A Dunne deal – compulsory alcohol and drug assessments on all parolees

United Future’s Peter Dunne has just thrashed out an agreement with Prime Minister John Key whereby Mr Dunne retains his role as associate Minister of Health and National will implement a number of United Future’s policies. Among those policies is one I have been advocating for some time – that the Parole Board should be given an alcohol and drug assessment on all prisoners appearing before the Board.

Currently this doesn’t happen which means the Parole Board is ‘flying blind’. This was a comment on the problem by the Head of the Parole Board, Judge David Carruthers. It became the title of my new book: Flying Blind – How the justice system perpetuates crime and the Corrections Department fails to correct.

Flying Blind points out that section 43 of the Parole Act requires the Department to provide “copies of all relevant information relating to the offender’s current and previous convictions” but that the Corrections Department has been ignoring this requirement for years. The book identifies the lack of alcohol and drug assessments on parolees as one the systemic failures of the Corrections Department which contributes to New Zealand’s high rate of recidivism. On page 141, it says:

“The failure to comply with section 43 is a serious omission which compromises the Board’s ability to keep the community safe. It means that prisoners are frequently released without attending substance abuse treatment in prison or on release, because the Board was not told that alcohol or drugs were involved in their offending.”

Flying Blind documents a number of other systemic failures by the Corrections Department to assist prisoners reintegrate back into the community. One of these is the lack of addiction treatment agencies in the community who will take offenders from prison. One has to ask: What is the point of assessing prisoners coming up for release when there are so few treatment programmes available in the community that will take them?

This is all part of the appalling lack of accommodation and support which is available when prisoners are released. Most of those who end up in prison have been the victims of dysfunctional families and all kinds of adversity in their childhood. There’s not much point in putting offenders through rehabilitation in prison but then not providing them with extensive support on release. In a press release, Mr Brooking said:

“That’s like expecting a man with two broken legs to start walking if you put a plaster cast on just one leg. It’s totally unrealistic – because both legs need fixing. If prisoners go back to the same alcohol and drug filled environment they came from, no amount of rehabilitation in prison is going to make any difference. The real problem is a lack of accommodation, halfway houses, treatment facilities and professional support in the community.”

Time to decriminalise all drugs

See this excellent article by Gwynne Dyer about the need to decriminalise all drugs. Dyer is a London-based independent journalist, whose articles are published in 45 countries.

He quotes Milton Friedman, a Nobel Prize winner, and the most influential economist of the 20th century. Twenty years ago the right wing Friedman said: “If you look at the drug war from a purely economic point of view, the role of the government is to protect the drug cartel (in NZ, read ‘gang’ instead of ‘cartel’). It is only because the government makes the drugs illegal that the criminal cartel (gang) has a highly profitable monopoly on meeting the demand.”

Dyer also quotes former Mexican president Vicente Fox who supported the US-led war on drugs when he was in office in 2000-2006, but more recently he has condemned it as an unmitigated disaster. “We should consider legalising the production, sale and distribution of drugs,” he wrote on his blog. “Radical prohibition strategies have never worked.”

Prohibition has never worked in New Zealand either. All psychoactive drugs except alcohol are banned here; recreational users and addicts are prosecuted to the full extent of the law. And yet over 400,000 Kiwis smoke cannabis every year, 100,000 nearly every day. The number of prosecutions for cannabis offences is rising and in 2008, there were 9,500 convictions. Enforcement and social costs have gone up accordingly. In 2001, the black market for cannabis in New Zealand was estimated at $190 million; in 2006 the social costs, which includes the cost of police, the courts and Corrections to enforce cannabis laws, were estimated at $430 million.

ACT leader Don Brash says this approach is part of the failed strategy of prohibition condemned by the UN and is a huge waste of money and resources. Mr Brash believes police time could be better spent investigation more serious crimes – ones with victims.

Indeed, if cannabis was deregulated and taxed (like alcohol and cigarettes), and police no longer had to enforce prohitibition laws against cannabis users, the net benefit to society is estimated to be between $400 and $860 million.