Watch: 1News story 3 April, 2024: Breakfast interview with Roger Brooking and Louise Nicholas

The Government wants to bring back the three strikes sentencing law — but opinion is mixed on whether the legislation contributes to an effective justice system or simply locks more people up for longer.

The law – repealed under Labour in 2022 – imposed a mandatory prison sentence of seven years for individuals who committed a third “strike” or violent offence. The legislation was intended to deter people from serious or repeat offending by threatening increasingly strict sentences.

The Government’s new 36-point “action plan” included working to restore the policy. Advocate Louise Nicholas told Breakfast this morning that victims supported the move. “When the three-strike law was there… our survivors were saying, ‘Good, this needs to happen because we don’t want this person back out in the community reoffending’,” she said. “If this can be a deterrent for that person, [then] for the community, it’s a good thing.”

Ignorant piece of legislation

But criminologist Roger Brooking strongly disagreed. “It’s an ignorant piece of legislation and there’s three good reasons why it just doesn’t work,” he said.

• “First of all, it doesn’t act as a deterrent.” He said the targeted offenders had “all kinds of mental health issues” or issues related to neurodiversity. The Government’s new 36-point “action plan” includes working to restore the three strikes law.  “They don’t make rational decisions and think about the consequences,” Brooking said. “It does not deter offending.

• “The second thing is that it removes the judicial discretion of judges. “It turns judges into rubber stamps basically, and I don’t think that’s helpful for justice in New Zealand.”

• Thirdly, he said the legislation led to “manifestly unjust” outcomes when it was in place, claiming offenders received seven-year sentences with no chance of parole for relatively minor offences.

However, Nicholas said victims want the people that harmed them to get the help they need so communities can be safer. “Not everybody that goes into prison who have committed these serious crimes, have mental health issues, addictions,” she said, disagreeing with Brooking. “Some of them are just normal people, if I can put it that way. “If you’re prepared to harm people, then you’ll be prepared to do the time – and when you come out and you’re gonna do it again, be prepared to go back in and have a longer sentence. “If you’re gonna continuously hurt people then expect to do the time, it’s as simple as that.”

‘Here they go again’

Labour Party deputy leader Carmel Sepuloni criticised the Government’s plan to restore the measure. “Here they go again, recycling policies that have no evidence base and that do not work,” she told Breakfast. “A waste of resource, a waste of time… Clearly there’s no evidence to support this. “We need to be looking at initiatives and policies that actually work to reduce crime. This is not one of them.”

Sepuloni acknowledged that victims needed to be “front and centre” of the response to crime – but said “there are other areas that need investment in them to support our victims and to mitigate the risk of people being victims”.

What information is available?

In the main, judges receive four kinds of reports which provide different kinds of information on defendants:

• pre-sentence reports (PSRs) written by probation officers;
• mental health assessments written by psychologists or psychiatrists;
• alcohol and drug assessments written by qualified AOD clinicians; and
• cultural reports (for which no particular qualification is required). 

In 2022, I conducted research on the availability of these reports for my Criminology honours degree. The topic was:

Court reports: How useful are pre-sentence reports (PSRs), alcohol and drug (AOD) assessments, mental health reports and cultural reports to judges in the sentencing process; to what extent do they lead to meaningful treatment and rehabilitation?

I interviewed six judges. Here is a brief summary of the results.

Presentence reports

Judges receive about 30,000 PSRs every year. They seldom contain much information. One judge said: “the PSR report is the least helpful piece of information that a judge has for sentencing purposes.”  Another said: “there’s very little that’s of any use in cultural, behavioural, or causative factors in the probation report. Mostly you could do without probation reports – bit of a waste of taxpayers’ money, to be honest”. 

Mental health reports

The few mental health reports that judges receive helps them decide if those particular defendants are insane or not, but these reports don’t address the underlying issues that the vast majority of defendants present with. Only cultural reports and alcohol and drug assessments provide the in-depth background information that judges require. 

Alcohol & drug assessments

In 2009, the Law Commission said up to 80% of defendants who appear in court have issues with substance use. The Corrections Department says 50% of crime is committed by people under the influence of drugs or alcohol. This suggests that judges should receive alcohol and drug assessments on at least half of the 60,000 defendants appearing in court each year.

However, up till now, funding for comprehensive alcohol and drug assessments has only been available in three locations in New Zealand: Auckland, Wellington and Nelson.  In Auckland and Nelson, they’re funded by the Ministry of health.  In Wellington they’re funded by the Ministry of Justice.  In 2021, this allowed AOD assessments to be conducted on about 1,000 defendants in these three cities. 

However, the Nelson funding is coming to an end.  That leaves Auckland and Wellington as the only two cities in the country where a funding mechanism is in place to provide AOD assessments.  The only way judges can access AOD reports in the other 56 district courts around the country is if lawyers request them on legal aid.  In 2021, only 176 assessments were funded in this way. 

Cultural reports

Most commentators described this as a retrograde step. Social justice advocate, Emily Rakete, says: “There is no fiscal argument for ending cultural report funding – they pay for themselves by reducing state spending on incarceration.”

The Law Society is concerned that access to justice will be impacted by abolishing the funding – with the greatest impact on Maori who are vastly over-represented in the justice system. Criminologist, Dr Juan Tauri, says it’s not just Maori who benefit from cultural reports; they help the working class and anyone who is poor which includes Pākehā, as well as Māori and Pasifika.

Unfortunately, she’s right.  Judges already receive pathetically few mental health or AOD reports. Now the coalition government has just shot down the Chief Justice’s brand new plan for judges to be well-informed about the defendants appearing before them. Talk about blind justice…

According to the NZ Herald, a lawyer, a judge and the chairman of the Parole Board, claim the Corrections Department is ‘failing prisoners’ due to a shortage of rehabilitation programmes in prison.  The story highlights the case of Blake Hollins-Apiata – a 19-year-old who has been sent to prison twice for violent offending associated with excessive drinking and drug use.  The parole board refused to release him early because he has been unable to attend any rehabilitation programmes in prison. 

Hollins-Apiata’s lawyer, Julian Hannam, said the case was not uncommon as many inmates were not getting assistance in prison, which often meant they lost hope and motivation.  At Hollins-Apiata’s sentencing, even Judge Hikaka criticized Corrections for the delay the teen had experienced getting into a treatment programme. The Parole Board chimed in saying it was “fundamentally wrong” that Hollins-Apiata has been stalled within the prison system.

The reality is that thousands of prisoners struggle to get into programs. Former Corrections Minister, Kelvin Davis, said the problem was due to staffing challenges faced by the Department.  The number of inmates able to attend rehabilitation programs provided by Corrections has dropped by two thirds in the last five years.  In the 12 months prior to June 2016, 8,372 prisoners attended rehabilitation. By June 2019, the number had fallen to 4,806.  Covid 19 lockdowns played a part in this process, as no one was allowed into prisons, including lawyers and programme providers. But since the pandemic ended, the situation has got even worse. The number of prisoners attending rehabilitation has now dropped to 2,086 in the 12 months to June 2022. 

Rehab in prison is ineffective

There is no doubt this young man needs to attend rehabilitation as soon as possible. But the perception that rehabilitation in prison would make any difference is fundamentally misguided.  This is why.  Hollins-Apiata’s offending is alcohol and drug related. Corrections offers addiction treatment in prison in its Drug Treatment Programs (DTP).  But this programme is almost totally ineffective. In 2020/21 drug treatment in prison reduced reconvictions by only 2.2% and reimprisonment by 0.6%.^[1] In 2021/22, these figures were 3.15% for reconviction and 0.35% for reimprisonment.^[2] These are tiny reductions which only occur in the first 12 months after release from prison.

The problem is not confined to addiction treatment.  In 2021, the Corrections Department’s Annual Report listed 23 different prison-based interventions intended to reduce reoffending.^[3] Corrections assesses the impact of all these programmes in the first 12 months after the prisoners who engaged in them are released. In 2021, the average reduction in reoffending across all 23 programmes was only 2.3%.

In other words, the prison-based rehabilitation programs offered by the Corrections Department do not change behaviour. Despite the fact that these programmes have very little impact on reoffending rates, in 2022, the Department spent $322 million on them.[4]

The AODTC is incredibly effective

There is one rehabilitation strategy that does reduce recidivism – drug courts. There are two such courts in Auckland (known as the AODTC or Alcohol and Other Drug Treatment Court), and a third one in Hamilton.  To be eligible, defendants have to be facing a prison sentence of up to three years and plead guilty. Each court takes a maximum of 50 participants at any one time and processes about 120 participants a year.  The graduation rate is 46%. In each court, that amounts to about 55 graduates a year who get treatment and avoid going to prison.

Between 2012 and 2018, the AODTC was evaluated more extensively than any other justice related intervention in New Zealand history. The Ministry of Justice found it reduced reoffending by 45% (by 86% for graduates). In other words, the AODTC is 15 times more effective at reducing reoffending than the 3% reduction achieved by drug treatment in prison.

What about the cost?

The Ministry says the cost of treatment in the AODTC was $14.46 million over four years.  That’s $3.6 million a year. So, if the $322 million spent on prison interventions was spent on drug courts instead, potentially, that would fund 89 new drug courts around the country.  I don’t think we need 89 new courts. Let’s say, we set up 20 new drug courts.

Each court processes approximately 100 defendants a year and nearly half of them graduate. So with 20 courts, that would allow around 1,000 defendants a year to avoid going to prison. Since it costs $150,000 to keep one person in prison for one year, that’s a potential saving of $150 million a year.  After a couple of years, New Zealand could close a few prisons. And then we wouldn’t have to waste $322 million on prison-based rehabilitation programmes that don’t work. That would be an additional savings.

This is not rocket science. It’s common sense – based on the evidence from the Ministry of Justice about what actually works to reduce reoffending.  So instead of blaming the Corrections Department for not providing enough rehabilitation programmes in prison, Government needs to spend taxpayers’ money on programmes which actually work. We need to fund and expand the use of drug courts in New Zealand.

---

[1]    Corrections Annual Report, 2020/21, p.169.

[2]    Corrections Annual Report, 2021/22, p. 181.

[3]    Corrections Department Annual Report 2020/21, p.169.

[4]    Corrections Annual Report, 2021/22, p. 113.

Prior to 2017, New Zealand’s prisons were bursting at the seams – and Governments were building a new one virtually every year.  Prisons are expensive. So Andrew Little, the newly elected Minister of Justice at the time announced that Labour would reduce the prison population by 30% over the next 15 years. They achieved it in five.

When Labour took office, there were over 10,500 Kiwis in prison. At the start of 2022, the muster had fallen to about 7,500 – a drop of 28%. Since then, the numbers have gone up again and, in June 2023, reached 8,610. Overall, this is an 18% reduction during Labour’s six years in office.

In December 2022, the Justice Sector released a 124 page document, titled Imprisonment in New Zealand: Long-Term Insights On Imprisonment, 1960 TO 2050. It explains some of the factors which led to this remarkable drop in the prison population.

There are two kinds of prisoners: those who have been sentenced and those who have not – known as prisoners on remand. Judges may remand a defendant into prison if they think he or she poses a risk of further offending, or if the offender simply has nowhere to live if granted bail.

The document claims that the prison population began to decline in 2018.  Between June 2018 and June 2022, the number of sentenced prisoners fell by 37% from 7,230 to 4,590.  According to the justice sector, three factors have contributed to this decline.

The drop in sentenced prisoners

• There was a change in sentencing patterns following the introduction of the Sentencing Act in 2017.  The changes enabled judges to make greater use of intensive supervision which enables offenders to access treatment in the community, and avoid the disruption to relationships, employment, and housing that goes with short prison sentences.  Judges were able to order defendants to be drug tested and to impose conditions requiring abstinence from alcohol and drugs. More electronic monitoring options also became available to support the enforcement of conditions.

• There was, and still is, a growing backlog of cases in the courts which began prior to the COVID 19 pandemic, but which was compounded by the pandemic.  Much of the backlog relates to defendants pleading not guilty when facing serious charges.  Between 30 June 2018 and 30 June 2022, the number of cases waiting trial involving serious violence increased by 90%.  In the same period, offences for Class A drug dealing increased by 48%.  While these defendants wait for their case to proceed, some may be remanded in prison, but many are not. This also slowed down the number of people being sent to prison.

• Then in 2019, the Court of Appeal changed sentencing guidelines related to class A drugs.  The new guidelines allow for more lenient sentences to be imposed if the judge determines that addiction played a part in a drug dealer’s offending. Since the new guideline was issued, people convicted of dealing in Class A drugs have been less likely to be imprisoned or have received shorter sentences. The imprisonment rate for methamphetamine dealing fell from 68% to 47%, and average sentence lengths reduced from four years, four months to three years, six months. This also reduced the number of Class A drug offenders in prison.

The drop in remand prisoners

The decline in the remand population began in 2020, but was driven by a different set of factors.

• The drop in the number of prisoners on remand was largely caused by the Covid 19 lockdown in April 2020.  Because virtually everything closed down, there was an immediate drop in the number of people being prosecuted in court. Judges had less interactions in court and so focused on sentencing offenders who were already on remand. They sentenced them to prison or to a community-based sentence.  Both options reduced the total number of prisoners on remand.

• For those on bail in the community, successive lockdowns in Auckland, reduced their opportunities to commit further crime.  This meant they were less likely to breach bail and end up in prison.  In 2021, the number of defendants who committed breaches decreased by 13%, which also contributed to the drop in prisoners on remand.

• The Corrections Department also contributed to the drop in prisoners on remand by establishing bail houses and assisting offenders into them.  70% of those in prison struggle with literacy.  Corrections created a Bail Support Service and appointed Bail Officers to help prisoners on remand with the paperwork. Bail officers also liaise with defence counsel and try to get the defendant’s bail application before a judge within a week. This has helped to cut the amount of time that prisoners spend on remand.

The 2023 election was held this week. National and ACT will be in charge, perhaps with ‘help’ from Winston Peters. Before the election, they were all talking tough on crime. The prison population is likely to skyrocket again – at substantial cost to the taxpayer.

There’s only one strategy that’s really tough on crime – drug courts. But politicians generally prefer to lock people up. So in the never-ending competition for Government funding – between punishment in prison or rehabilitation in the community – the Corrections Department wins again.

Brooking argues that the Drug Court in Auckland is ten times more effective at reducing reoffending than drug treatment in prison. And points out here that the Government is reluctant to increase funding for addiction treatment in the community because of a flawed cost benefit analysis conducted by the Ministry of Justice.

The Dutch justice system is cutting the prison population by offering specialist rehabilitation to people with mental illnesses. Since 2014, this has allowed 23 prisons to be shut, turning them into temporary asylum centres, housing and hotels. Holland now has Europe’s third-lowest incarceration rate, at 54.4 inmates per 100,000 inhabitants. In July 2019, New Zealand’s incarceration rate was 201 inmates per 100,000. 

When the Labour led coalition government came to power two years ago, Justice Minister Andrew Little announced that Labour intended to reduce the prison population by 30% over the next 15 years. The prison population at the time was 10,394. Two years later it’s still 10,200. This is expensive. The cost of keeping one person in prison in New Zealand is over $100,000 per year.

The article below is an except from the Guardian on 12 December 2019. For the full article go here.

Why are there so few prisoners in the Netherlands?

When Stefan Koning, who has a history of psychosis, was found guilty of threatening a stranger with a knife, a long custodial sentence might have felt like the only answer.

In fact, after a short spell in jail, he is back at his home in Amsterdam.

“Bob is a character from Twin Peaks, a murderer who creeps into the skin of innocent people and makes them do terrible things like murder,” says Koning. “There’s a Bob in me who says ‘kill this person’, that sort of thing. If I take my medicines, Bob is quiet.”

Koning is a beneficiary of a growing tendency in the Netherlands to avoid jailing people unless it is necessary. One key aspect of this is a prodigious programme of care in the community for people with psychiatric problems.

“We work on two aims: number one, preventing another crime, and then on psychiatric suffering and the social problems that come with it,” says Hommo Folkerts, a forensic psychologist and outreach worker who helps Koning.

“We don’t treat people with just depression – it’s people with psychotic vulnerability, autism, severe learning difficulties, often in combination with severe personality disorders, addictions, financial problems, no good home or links with family, and often they are traumatised.

“Nobody would approve of the crimes or violence they have committed, but there is a very sad world behind them. If you want to mend all this, it will take a long time.”

In 1988, the UK criminologist David Downes contrasted a relatively humane Dutch prison system favourably against those in England and Wales. Today plummeting prison sentences have left the Netherlands with an unusual problem: it doesn’t have enough inmates to fill its prisons, even after renting out places to Norway and Belgium.

Since 2014, 23 prisons have been shut, turning into temporary asylum centres, housing and hotels. The country has Europe’s third-lowest incarceration rate, at 54.4 per 100,000 inhabitants. According to the justice ministry’s WODC Research and Documentation Centre, the number of prison sentences imposed fell from 42,000 in 2008 to 31,000 in 2018 – along with a two-thirds drop in jail terms for young offenders. Registered crimes plummeted by 40% in the same period, to 785,000 in 2018.

Miranda Boone, a professor of criminology at Leiden University, has studied the collapse in the prison population. “There is no doubt that the prison population has been reduced very significantly in the last 13 years – an amazing and, in the western world, unparalleled development,” she says.

Half of the people in Dutch prisons have received a one-month sentence, she says, and almost half entering detention in 2018 were actually awaiting trial. Experts attribute the decline to a variety of factors, including more sentencing before reaching or outside of the court system – such as fines – than other countries and the use of court-ordered mediation.

But there is also a special psychological rehabilitation programme known as TBS.

“TBS is a rather unique institution in the world,” Boone says. “In many countries there’s a limited choice: people can either be held accountable for their deeds and sentenced to prison; or held not accountable and put into a psychiatric institution. We have a psychiatric institution that is part of the criminal justice system for people who can be held not [accountable] or only partly accountable.”

Unlike high-security hospitals in the UK or the Netherlands, TBS has very specific conditions. People must have committed a crime with a minimum prison term of four years and have a high chance of recidivism: the programme works on specifically on their reintegration into society. If this is not deemed possible, or they refuse to cooperate, they can eventually move to a normal high-security hospital and be confined indefinitely.

There were 1,300 people detained with a TBS ruling in 2018: people stay in a treatment centre, sometimes after a jail term, and are treated for the psychological conditions that are thought to have played a role in their crime. Every two years, judges assess whether the treatment should be extended, and the average stay is two years.

 

For the full article in The Guardian go here.

 

 

In 1985, there were 2,775 prisoners in New Zealand.   On 29 November 2016,  Corrections Opposition spokesperson, Kelvin Davis (now the Corrections Minister), posted a message on his Facebook page stating that the muster had just passed 10,000 – an increase of 364% in 30 years – and the National Government was planning to build a new prison.  Davis wrote:

We’re spending a billion dollars to build a new prison and I have just one question: what happens when that is full? Build another? That will be another billion bucks poured down a bottomless hole.

The reality is that the prison population had been on the rise for 70 years and was projected to hit 12,000 by 2022.  Kelvin Davis and the Labour team aren’t keen on building an expensive new prison every three years so when the current coalition government took over, Justice Minister, Andrew Little announced he intended to reduce the prison population by 30 per cent over the next 15 years.

It’s not that hard

Little even said “It’s actually not that hard if we choose to resource it properly.” The prison population at the time was 10,394.  Two years later it’s still at 10,200, which the NZ Herald described as a prison system bursting at the seams.

So despite Andrew Little’s claim that reducing the prison population is “not that hard”, the coalition government has made no progress towards that goal whatsoever – we still have over 10,000 people in prison. But to give credit where credit is due – at least the muster has stopped going up – for the moment.

The Corrections Department clearly does not expect this pause in the upward trajectory to last. In response to an OIA, Corrections advised that, even though they are not building a new prison, they are in the process of expanding capacity at eight existing prisons using Chinese made modular (prefab) ‘rapid deployment cells’ – although according to Corrections Association president, Alan Whitley, the deployment has been far from rapid.

The extra beds will be at the following prisons and cost $406 million:

Prison	New beds
Rolleston	244
Tongariro	122
Christchurch Womens	122
Christchurch Mens	244
Rimutaka	244
Total new beds	976

Three other “prisons also have capacity projects in progress” budgeted at $916 million. Corrections claims the new beds in these three prisons “do not all represent expansions” as these new units will allow older units at these prisons to be disestablished. Obviously, older units are unlikely to be disestablished if there is a blowout in inmate numbers.

Prison	New beds
Waikeria	600
Mt Eden	318
Arohata	69
Total	987

Total new prison beds

Altogether, the Government is adding a total of 1,890 new beds. Currently, each of the four largest prisons in the country holds approximately 950 prisoners.  By adding another 1,890 beds, the Government is surreptitiously constructing the equivalent of two large prisons – at a cost of just under $1.5 billion. This covert expansion in prison capacity highlights the hypocrisy of Kelvin Davis’ hope that Labour would do things differently.

I agree with Andrew Little that reducing the prison population is not that difficult. But to do so requires legislative changes such as repealing the disastrous Bail Amendment Act which doubled the number of prisoners on remand within two years. The problem is that to pass the necessary legislation, Labour requires support from NZ First – and when Andrew Little proposed repealing the repugnant three strikes law, Winston Peters rapidly pulled the rug out from under his feet.

The coalition agreement

The problem is that when the Labour Party went into this alliance with New Zealand First, it failed to make justice and prison reform a part of the coalition agreement. The only law and order related issue in the agreement was to:

Strive towards adding 1800 new Police officers over three years and commit to a serious focus on combatting organised crime and drugs.

Not only did Labour fail to address prison reform with its coalition partners when forming a government, nor did it seek cross-party agreement with the National party on any of these issues. Given that National takes a ‘tough on crime’ law and order approach (which inevitably involves building new prisons), establishing a 15-year goal without cross party agreement is unbelievably naive. New Zealand has a three-year election cycle. Labour would have to win five elections in a row to make progress towards such a long-term goal.

You can’t win with two captains

Since we’re all Kiwis, let’s use a sporting analogy. Setting a 15-year goal to reduce the prison population by 30% without cross-party agreement is like playing an endless game of rugby without a referee. When they get possession of the ball (i.e. the power to govern), each side just does whatever it wants. The goals and strategies of previous governments are cast aside.

Similarly, a coalition agreement with New Zealand First which does not include an agreement to reform the justice system is like an All Black team with two captains (in this case, Jacinda and Winston). Jacinda captains the forwards and they want to attack (to reform the justice system and reduce the prison population). Winston captains the backs and when it comes to law and order, he just wants to play defence (and lock em up). When the backs and the forwards have different captains and opposing strategies, it’s a struggle to move the ball forward, let alone score a try.

This situation highlights the difficulty of introducing radical reform in a democracy with elections every three years. 90% of democratic countries have four or five-year terms which give governments more time to make changes. And the prison population could be reduced by 50% within five years. But even that wouldn’t solve the problem facing Jacinda Ardern when the other captain is constantly undermining the team.

The lesson that Labour should learn from this is that they should have been a lot tougher negotiating with Winston Peters before they got into bed with him and agreed to form a team  (apologies for the mixed metaphors). In the justice arena, getting into bed with Winston has been an abortion – with billions still getting poured down a bottomless hole.

Criminology graduates and a senior criminology lecturer at VUW are calling for the Climate Change Amendment Bill currently before Parliament to be totally transformed so that it reflects the reality that the world is facing an existential crisis.

Graduates taking CRIM 417 (an Honours level course called Crimes against the Environment) and their Course Coordinator have crafted a comprehensive submission to Parliament. The criminologists are calling for the name of the Bill to be changed to the Climate Crisis Response Bill and the Climate Change Commission proposed in the Bill to be called the Climate Crisis Commission.

The submission is supported by Ollie Langridge who has been conducting a one-man protest outside Parliament for the last two months calling on the Government to declare a climate emergency.

The submission also recommends that strategies adopted by Parliament based on the Commission’s recommendations should be made compulsory – with financial penalties for industries, agencies and individuals who fail to comply.

Finally, the criminologists are suggesting that regulatory impact statements (RIS) for all future legislation proposed by Parliament, relating to any matter whatsoever, should be required to describe the likely contribution of any new policies, procedures or regulations (resulting from the proposed legislation) to future greenhouse gas emissions.

This would ensure that in the future, Parliament would be required to take the climate crisis into consideration with every single Bill that comes before it. So, for instance, if the Government wanted to build a new prison at a likely cost of $1 billion, it would need to produce a regulatory impact statement describing how much carbon dioxide building and operating such a prison would emit. In other words, it would need to be sure that a new prison was compatible with the goal to be carbon neutral by 2050.

Another example is that it would require the Government to justify decisions such as giving $50 million to Te Papa (announced in the budget for 2019) when the building will likely suffer irreparable damage from rising seas by the end of the century.