Since the Bail Amendment Act was passed in 2013, the prison population has jumped by over 1500. This has created a crisis in capacity – there are only 300 beds left in the entire prison system. The National Government and Bill a new 3,000 bed prison at Waikeria to address the problem – at a cost of $1 billion.
Cutting the prison population by 30% is easy: repeal the Bail Amendment Act and allow more short-term prisoners to be released after serving half their sentence. These suggestions are discussed in How to cut the prison population by 50% – quick fix solutions.
But to get to 50%, we also need to stop putting so many people in prison in the first place. And we need to reduce the re-offending rate.
Unlike the quick fixes, some long-term solutions will require financial investment. Others, such as raising the price of alcohol will actually increase government revenues.
Increase the price of alcohol and decriminalise cannabis
Despite the endless scaremongering about methamphetamine and synthetic cannabinoids, alcohol is by far the biggest drug problem in the country. In Alcohol in our Lives, the Law Commission said 80% of all offending is alcohol and drug related. The Commission concluded that increasing the price of alcohol 10% (by raising the taxation component) was the single most effective intervention to reduce alcohol related harm and would raise $350 million in revenue.
It also recommended an increase in the legal age of purchase to 20, restricting the sale of alcohol in supermarkets (which now account for 70% of all alcohol sold in New Zealand), and an increase in funding for addiction and mental health treatment. The National Government ignored all these recommendations.
Decriminalising cannabis would also help keep drug users out of prison. If the Government wanted to be really bold, it could decriminalise possession of all drugs as Portugal has done. In July this year, the New Zealand Drug Foundation released a similar policy, Whakawatea Te Huarahi. The Foundation describes this as:
“a model for drug law reform which aims to replace conviction with treatment and prohibition with regulation… under this model, all drugs would be decriminalised. Cannabis would be strictly regulated and government spending on education and treatment increased.”
This would make a big difference. In 2015, offenders with drug offences accounted for 13% of all sentenced prisoners. So apart from a few big time drug dealers who would remain in prison, if personal possession was decriminalised, that’s another 800 people or so that could be treated in the community instead of in prison.
Increase the number of drug courts
Decriminalisation needs to be aligned with a significant increase in funding for ‘drug courts’. Here’s how they work. When someone appears in court with alcohol or drug related offending, the judge gives him a choice. Instead of sending him to prison for the umpteenth time, if the offender agrees to be dealt with in the drug court and go to treatment, he may avoid going to prison.
The offender comes back to court every two weeks so the judge can monitor his progress. The whole process usually takes about 18 months. If the offender successfully completes everything he’s told to do, he avoids a prison sentence. Those who ‘graduate’ say this process is much tougher than going to prison.
This is a highly effective intervention. But right now, there are only two drug courts in the whole country, and they ‘treat’ only 100 offenders a year. Over the next five years, New Zealand needs to increase the number of Drug Courts to at least ten. Justice Minister, Andrew Little, has already agreed to ‘roll them out’. This will require a significant increase in funding for AOD treatment services in the community, but it would keep at least 500 offenders a year out of prison. If drug courts were rolled out nationwide, even more could be managed in the community.
Increase funding for reintegration services
Sending less people to prison is paramount. Reducing the risk of reoffending is equally important. Currently, within twelve months, 28% of ex-prisoners are back inside. After two years, 41% are back in prison. These figures have changed little in the last 20 years, despite a massive increase in the availability of alcohol and drug treatment in prison; and despite a concerted effort by Corrections in the last few years to reduce reoffending by 25%.
The problem is Corrections spends approximately $150 million a year on rehabilitation programmes in prison – on programmes that don’t work. There’s a reason they don’t work. The reality is that 15,000 people (most on short sentences) are released from prison every year. Many are alienated from family and have nowhere to live. Very few have jobs to go to. Hundreds have no ID, no bank account and struggle to register for the dole. In Beyond the Prison Gate, the Salvation Army recommended…
“that the Department of Corrections ensures all ex-prisoners are provided with six months of accommodation… and create industry schemes that will employ prisoners for … 12 months post release if they have no other employment.”
Here’s the crux of the problem. While the Department spends $150 million on rehabilitation in prison every year, in 2017 only $3 million was budgeted for supported accommodation – for an estimated 640 ex-prisoners. Until $150 million is also spent on half-way houses and reintegration services, the funding spent on rehabilitation in prison is money down the toilet.
There are many other options available. But until we have a Government with the courage to ignore the moral panic perpetuated by the Senseless Sentencing Trust over the last 20 years, our prison muster will continue to multiply; and millions of taxpayer dollars will be squandered on the dubious delusion that locking citizens away creates a safer society.
In September 2017, New Zealand’s prison population hit an all-time high of 10,470, of whom 2,983 or 28% were on remand. The background to this boom is covered in Explaining NZ’s record high prison population.
Whatever the causes, the situation is clearly out of control. The operating cost of our prison system is about $100,000 per prisoner or $1.5 billion a year. The National Government was planning a new prison at an estimated cost of $2.5 billion. According to the new Justice Minister, Andrew Little, unless we start doing things differently, New Zealand will need to build a new prison every two or three years.
At the 2017 election, Gareth Morgan proposed reducing the prison muster by 40% over ten years. The Labour coalition wants to reduce it by 30% over 15 years. However, both Kelvin Davis, the new Corrections Minister and Andrew Little have been very vague about how they intend to achieve this. Both also seemed to think it was complicated and would take a long time.
Reducing the prison population is not difficult. The simplest approach is to repeal most of the ‘tough on crime’ legislation that has been passed in the last 25 years. There are also some easy administrative fixes which will reduce the prison population by up to 3,000 very quickly. This article describes some of the quick fix solutions. (Also see Roger Brooking interviewed by Hilary Barry on Breakfast on this subject.)
Reduce the number of prisoners on remand
Of all the punitive legislation passed since 1980, the Bail Amendment Act in 2013 produced the biggest bump in prison numbers. This disastrous piece of legislation was introduced after the murder of Christie Marceau by 18-year-old Akshay Chand – while on bail. However, this was not a failure of the existing bail laws. It was the result of an inadequate risk assessment by the mental health services dealing with Chand, who was subsequently diagnosed with schizophrenia and found unfit to stand trial. He was released after a forensic health nurse advised Judge McNaughton that Chand had been taking anti-depressant medication for two weeks and could be “safely and successfully” treated in the community.
In response to the media outrage at the murder led by Garth McVicar, National passed the Bail Amendment Act making it much tougher for defendants to be granted bail. Projections by the Ministry of Justice claimed the new Bill would increase the number of prisoners on remand by less than 60. But three years later, there are 1,500 new prisoners on remand. None of them have yet been convicted of a crime. They’re being held in prison because a mental health nurse, not a judge, got it wrong and because National gave in to the moral outrage perpetrated by McVicar. As a result, the Corrections Department says we need a new prison. We don’t. We just need to repeal the Bail Amendment Act.
Release more short-term, low risk prisoners
The other quick fix is to let out more short-term prisoners early. The Parole Act defines a short-term prison sentence as one of two years or less. Short-term prisoners don’t go before the parole board – they’re automatically released after serving half their sentence. In 2015, there were nearly 6,000 short-term inmates on a given day (although thousands more than this cycle through the prison within a 12 month period). The Board would be totally overwhelmed if it had to see all these inmates, many of whom are in prison for quite minor offences. So automatic release at the half-way mark is an administrative convenience.
A long-term sentence is anything over two years (from two years up to life). Since 1985 ‘tough on crime’ legislation has significantly increased the number of long term prisoners (see chart above); the number of people given ‘long term’ sentences between two and three years went up 475%. In 2015, there were 765 inmates in this group, out of a total of nearly 5,000 long term prisoners.
These prisoners can only be released before the end of their sentence if the Parole Board decides they no longer pose an ‘undue risk’ to the community. Most attend their first parole hearing after completing one third of their sentence. But that doesn’t mean they get out. In the last few years, the Parole Board has become increasingly risk averse and now less than 5% of inmates are released at their first hearing – after which they serve the rest of their sentence in the community under the supervision of a probation officer. Most long-term prisoners now serve approximately 75% of their sentence. The remainder serve their entire sentence.
So if the definition of ‘short-term’ was changed from two years to three years. That would allow an additional 765 inmates to be released automatically after serving half their sentence. Prisoners serving four or five years could be automatically released after serving two thirds. In 2015, there were 1,645 inmates serving between two and five years. Add this to the 1,500 no longer being held on remand and within five years, the population would be down about 3,000 – which is 30% within five years.
Prisoners also need accommodation and jobs when they get out. That requires long-term solutions, which would reduce the prison population by a further 20%. These solutions are addressed in How to cut the prison population by 50% – long term solutions.
Jacinda Ardern, Prime Minister
Andrew Little, Minister of Justice
Parliament Buildings, Wellington
Dear Ms Ardern and Mr Little,
Your new government has taken some really positive steps in the justice arena after just a few short days in office.
Ms Ardern: On 26 October, 2017, in your first comments as Prime Minister, you said ‘I want the government … to bring kindness back’. In the Guardian newspaper read by millions around the world, you were quoted as promising to form an “active” government that would be “focused, empathetic and strong”.
Mr Little: On your first day on the job as the new Minister of Justice you announced that Teina Pora’s $2.5m compensation for wrongful imprisonment would be increased to allow for inflation. That was the decent thing to do.
In the past you also voiced support for David Bain’s compensation claim. On 27 June 2013, you were quoted as saying that Ms Collins’ handling of the case had cost the taxpayer a “hundreds of thousands, if not millions of dollars, just because she’s made a mistake. And we’re all paying for it”. You said she had acted too fast and without proper consideration of the facts, and that: “I think she’s going to be on the wrong side of this.” On 28 June you repeated your view that Justice Minister Judith Collins had “buggered it up”.
You also advocated for the establishment of an independent commission to review miscarriages of justice. On 27 October 2017, it was announced that such a body will be established under the coalition agreement between Labour and New Zealand First. That’s good news – and long overdue.
But this is too late to help David Bain who, after 13 years in prison and another six years fighting for compensation, received $925,000 provided he agreed to cease all further legal action. The National Government stated that the payment was NOT compensation and Mr Bain would NOT receive an official apology. That was hardly a sympathetic response to Mr Bain’s drawn out legal battle for freedom and compensation.
Questions to Ms Ardern & Mr Little:
Given the compassionate response of the new government to Mr Teina Pora’s situation, will your government respond in a similarly empathic and active manner to Mr Bain. More specifically, is your new government willing to:
- Advise Mr Bain that the payment he received is, in fact, compensation for the 13 years he spent in prison?
- Increase the amount of compensation he received so it is in line with Cabinet guidelines of $100,000 per year spent in prison? This should take his payment from $925,000 to about $1.3 million.
- Adjust the $1.3 million for inflation in line with the courageous Teina Pora decision?
- Offer Mr Bain an official apology for the egregious mistakes made by the New Zealand police (as identified by Justice Ian Binnie and ignored by Justice Ian Callinan) which contributed to his imprisonment.
P.O. Box 29-075, Ngaio, Wellington
One TOP party policy that hasn’t received much attention in the run up to the election is Gareth Morgan’s wish to reduce the prison population. He argues that rather than rehabilitating inmates, “prisons nurture crime”.
The Corrections Department’s own figures confirm the fundamental ineffectiveness of their rehabilitation programmes. This means that prisons don’t keep us safe either because these unrehabilitated prisoners are almost all released eventually. And prisons are incredibly expensive chewing up billions of hard earned taxpayer dollars that you could be used to fund more teachers, doctors, social workers and infrastructure.
Morgan: Garth we need to reduce the prison population by 50%. We need the money that Corrections spends on locking up prison inmates for other things like housing the homeless, treating drug addiction and improving mental health services in the community
McVicar: No, you’ve got it all wrong, Gareth. That’s what the prisons are for – to provide shelter for the homeless and take care of people with addictions and mental health problems. We need to put more of these losers in prison and get them off the streets.
Morgan: Yeah but that doesn’t solve the problem, does it? These guys don’t get any help in prison and eventually they get released on parole or at the end of their sentence. So, at the end of the day we’re no better off.
McVicar: That’s easily fixed Gareth. First, we need to abolish parole so these scum serve their whole sentence. We have to stop letting them out early. Second, we need to impose much longer sentences so hopefully these crims just die in prison. After all, life should mean life – not three years then out on parole after one year.
Morgan: But only 0.01% of prisoners have killed someone, you know, committed murder. We can’t lock up robbers, shoplifters, drug addicts and drink drivers for life. Sentencing has to be proportionate – you know what I mean – the punishment should fit the crime. And they need help with their addictions.
McVicar: That left-wing claptrap is all well and good – but we have to lock these crims up for a long time to deter other people from drinking and stealing our stuff – otherwise everyone will be doing it.
Morgan: But the academics say that this so-called theory of deterrence doesn’t really work – because most crims are mentally ill, brain damaged or addicted to alcohol or crack. They mostly commit crimes when they’re high as kites or drunk as skunks or to feed their addiction and the possibility of going to prison doesn’t even dawn on them.
McVicar: Don’t talk to me about academics. They’re the ones that got us into this mess by claiming that crime is the result of childhood abuse and dysfunctional parenting. It’s got nothing to do with parenting. My parents beat the crap out of me and look how I turned out. I don’t need an academic to tell me right from wrong. Crime is a personal choice made by people with no moral fibre. Bugger this namby pamby approach, we need to use more corporal punishment on our children – that’s what turns them into real men.
Morgan: But it’s not just men Garth. There’s more and more women going to prison now as well. The vast majority of them have been sexually abused as children and because they’re psychologically damaged, they team up with abusive partners who beat the crap out of them.
McVicar: Well if you choose an abusive partner, you’re deliberately choosing to get beaten up. So, getting beaten up is a personal choice – just like crime. We have to take responsibility for our lives and stop blaming everyone else for our problems. The middle-class intellectuals have been coddling crims for way too long.
Morgan: But we can’t keep locking up more and more people Garth. Prisons are expensive. The prison population is at an all-time high. We’ve got 10,000 inmates. It costs $100,000 a year to lock up just one inmate and National wants to build another prison. When’s it going to stop?
McVicar: It’ll stop when the perverts are all locked up and the streets are safe to live in again…
Morgan: What do you mean? New Zealand is the second safest country in the world.
McVicar: That’s what I’m saying – locking up the bad guys is the only thing that works. Prisons create peace and harmony in society.
Morgan: (after a long pause with a look of bewilderment on his face) Yeah right!
Martin Van Beynen is a columnist for the The Press in Christchurch. He’s followed the David Bain case from the beginning and is clearly obsessed with it. Right from the start, he was convinced David was the murderer. Twenty years later, despite the Privy Council declaration that there was a miscarriage of justice and the finding of the second jury that David was not guilty, Van Beynen has been unable to accept reality. And the reality is – he got it wrong.
But there’s money to be made. So in July 2017, Stuff released a 10 part podcast Van Beynen put together about the case: Why the David Bain story needed to be told one more time. Van Beynen examines the evidence in detail – in minute detail. In the process, he loses all perspective. He’s so busy looking at the individual trees, he fails to see the forest – or that half of it is missing because of the well-documented incompetence of the Dunedin police.
Let’s not forget that during their investigation, the police allowed some crucial trees to be burnt down (eg: the house where the murders took place). And those incest allegations against Robin Bain were fertile soil in which the trees of the forest were growing – but the police threw them out as seedlings before they even got planted. So Van Beynen only examines the decrepit, well worn trees that are still standing. He only sees what he wants to see – just like the police, who at the time of the crime, turned a blind eye towards the allegations of incest.
Using these myopic methods, Van Beynen still thinks David was the murderer. So do the police of course. One has to wonder – after all these years, why Van Beynen can’t admit he got it wrong? He has a reputation for solid investigative journalism. So why is he still in denial about the Bain case? Perhaps it has something to do with the fact that he has a brother who works for the police – the same police who destroyed half the trees in the forest. Or perhaps its because Van Beynen works for Stuff, and this is an opportunity for them to take his obsession with the case and make more money off it.
In February 2017, New Zealand’s prison population hit 10,100 – an all-time high – and an increase of 364% in the last 30 years. A month later, the NZ Herald reported that 56.3% of that total are Maori – also an all-time high – even though Maori make up only 15% of the population.
Unfortunately, Maori are seven times more likely to be given a custodial sentence than pakeha and eleven times as many Maori are remanded in custody awaiting trial. The corollary is that if Maori were incarcerated at the same rate as non-Maori, there would only be 4,900 Kiwis in prison. Any attempt to explain New Zealand’s high prison population must therefore begin with an analysis of why Maori are so over-represented in our offending statistics.
The impact of colonialism on Maori imprisonment
New Zealand’s colonial past is populated with social, economic and political policies which subjugated and penalised Maori. Moana Jackson (1988) has described these historical policies as…
“specific acts of institutional racism and social policy that have denied Maori people the economic and emotional resources to retain and transmit their cultural values”.
He argues that as a result, New Zealand now has a monocultural justice system that entirely ignores the spirit of the Treaty of Waitangi which was supposed to establish a partnership between the British and Maori; in the Māori translation, it also guaranteed the latter unqualified exercise of ‘chieftainship’ over their own lands, villages, property and treasures.
It is self-evident that if Maori ceased to own their own land, the chiefs’ power base would be diminished and their capacity for partnership eliminated. AUT lecturer, Kylee Quince, says that in the 60 years following the signing of the treaty, this is exactly what happened: the settlers and the colonial government went about acquiring Maori land and resources “by way of negotiation, crooked dealings, warfare and confiscation”.
Prof John Pratt, from VUW, cites evidence that from 1840 onwards, Maori cultural values and mechanisms of social control were also suppressed by the magistrates of the time as the British justice system was imposed on the country. During this period, the Maori language was banned and Maori culture and mana were slowly ‘silenced’.
Jackson argues that as a result, New Zealand now has a monocultural justice system, one that ignores Maori culture and values. Quince says that as a result…
“Maori are underrepresented as police, legislators, judges, lawyers and jurors and consequently lack any input into the norms and processes of the system”.
She goes on to say there is a perception among many Maori that the law is a “blunt pakeha tool of coercion against Maori” and points to the on-going fraught relationship between Maori and police.
Perhaps therefore it should be no surprise that from about 1950 onwards, Maori have been prosecuted more frequently than European offenders, held on remand more frequently, and then sent to prison more frequently. Maori defendants are also less likely to have legal representation and more likely to plead guilty. In other words, there is institutional bias by the police who arrest more Maori, by lawyers who represent Maori and by judges who sentence Maori. Academics ascribe this bias to…
“the formation of unfavourable stereotypes of Maoris in the minds of adjudicating officials”.
This brief introduction to institutional racism goes some way to explaining why 56% of prisoners in New Zealand are Maori.
The introduction of neoliberalism to New Zealand
Things got worse in 1984. Up to that point in our history, New Zealand was a ‘social democratic’ society with a strong focus on full employment, equal opportunities for everyone (except perhaps for Maori) and a supportive welfare state.
But in the latter half of the 20th century, Ronald Reagan and Margaret Thatcher came to power and implemented neoliberal, trickle-down economic policies. In 1984, these feral ideas found fertile soil in New Zealand under the Labour Government of David Lange and Roger Douglas. New Zealand abandoned its long-standing commitment to full employment, sold off state assets, removed subsidies to industry and agriculture, and cut welfare payments. Over the next 30 years, the gap between the rich and the poor grew at an alarming rate, and the compassionate egalitarian society we once perceived ourselves to be, began to dissolve.
Unfortunately, neoliberalism is also associated with punitive penal policies towards those who can’t keep up. Cavadino and Dignan (2006) write:
“The neoliberal society tends to exclude both those who fail on the economic marketplace and those who fail to abide by the law – in the latter case by means of imprisonment… as a general rule, economic inequality is (also) related to penal severity: the greater the inequality in society the higher the overall level of punishment”.
New Zealand commentator Max Rashbrooke says this happens because the income gap causes people to “lose their sense of what life is like for people in the other half”. Kylee Quince agrees that New Zealand is ‘incredibly harsh on people’ at the bottom of the socio-economic ladder. She points out that:
“About half of people in prison in New Zealand are there for property and drug offending. Very few Western nations send people to prison for those types of offences”.
In general, those treated the harshest are Maori who have been at the bottom ever since their lands were stolen.
Explaining the relationship between neoliberalism and our high rate of imprisonment
John Pratt believes that ‘penal populism’ is the mechanism by which neoliberalism exacerbated our exploding prison population. He says the social and economic changes introduced in the 1980s created a sense of existential angst; job security disappeared, the influence of trade unions declined, finance companies collapsed and inflation went up. The rising crime rate (prior to 1990) also contributed to these anxieties.
Prof Pratt believes there was a perception that governments were no longer in control (of crime in particular), and that politicians and political processes no longer responded to the needs of ‘ordinary people’.
In 1996, this dissatisfaction with the political process led to the abolition of ‘first past the post’ and the introduction of MMP. This facilitated the rise of the Act party which was subsequently responsible for the introduction of a ‘three strikes’ laws in New Zealand. This adds to the prison population by reducing the availability of parole.
In the latter half of the 20th century, there were also significant changes in the structure of the media. Public service television virtually disappeared while social media and talkback radio enabled ordinary citizens, as opposed to experts, to express their point of view. Emotion rather than reason became a legitimate and significant portion of the political narrative. Governments stopped listening to what judicial experts had to say about the ineffectiveness of prison as a deterrent and passed more ‘tough on crime’ laws. In response, between 1985 and 1999, the prison population doubled.
From 2001, the so-called Sensible Sentencing Trust played a major role as journalists increasingly turned to Garth McVicar for ‘expert’ analysis. Because of the extraordinary exposure McVicar was granted by the media, ‘law and order’ became the dominant discussion of the decade. As a result, even though crime began dropping in the 1990s, the public were led to believe it was still going up. Between 2000 and 2008, the Labour Government had to build four new prisons to keep up with the consequences of their punitive policies.
The National Party also played its part. In 2011, in response to the murder of 18-year-old Christie Marceau who was stabbed to death by a young man on remand, Garth McVicar began yet another law and order campaign. National then introduced the Bail Amendment Act (2013) making it substantially harder for offenders awaiting trial to get bail.
The number of prisoners on remand sky-rocketed and in 2015, the prison population hit 9,000. In a propaganda piece in the NZ Herald, Justice Minister, Judith Collins attempted to blame the growing prison population on an increase in violent offenders. But even she had to acknowledge that most of the increase over the previous 12 months was due to the growing number of inmates on remand. In her superficial explanation, Ms Collins omitted to mention that the vast majority of these remand prisoners are Maori. In fact, she made no mention of the over-representation of Maori in prison at all. Nor did she mention poverty or the increase in inequality in New Zealand as contributing factors to the burgeoning prison population.
Another year has gone by and now over 10,000 Kiwis are in prison. It is not possible to explain New Zealand’s record high rate of imprisonment without reference to New Zealand’s colonial past. There is no doubt that this pushed Maori to the bottom of the socio-economic ladder. The introduction of neoliberal policies in the 1980s increased economic disparity pushing Maori (and everyone else near the bottom rung) down even further. For the homeless, it pushed them off the ladder altogether – often into prison.
By highlighting violent crime, the Sensible Sentencing Trust, with the willing help of the media, then united the National and Labour Parties in a seemingly endless competition to be tough on crime. ‘Criminals’ have become an easy target, scapegoated by politicians of every persuasion for practically every problem in society. In this punitive environment, passing tough on crime laws is easy. No wonder our prison population is at an all-time high.