Explaining New Zealand’s record high prison population

Prison stats
These stats are for convictions in 2016. They do not include inmates who were already in prison

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

Jackson
Maori academic, Moana Jackson

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.

Quince
AUT law lecturer, Khylee Quince

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…Institutional racism.png

“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

Neo-libThings 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

Pratt
VUW lecturer, Prof John Pratt

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.

Marceau
Poster of Christie Marceau used by Garth McVicar to exploit public indignation about New Zealand’s bail laws

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.

Conclusion

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.

Why Bill English booted Collins off Corrections

The Corrections Department in New Zealand puts out a monthly magazine called, guess what – Corrections Works. This pithy little propaganda sheet provides a pat on the back to any Corrections staff who perform up to expectations or do anything reasonably well in the previous month. The magazine also contains a monthly Message from the Minister, in which, just before Bill English gave her the push, Collins confesses that under her control, Corrections hasn’t been working at all.

For years, the Crusher has consistently claimed the Department is “extremely focused on reducing reoffending” but in Corrections Works, she reveals – with great embarrassment – that:

rehab“The target of reducing reoffending by 25% by 2017 was a laudable aim… (but) progress is slow, the reoffending rate has dropped by (only) 5.6%.” 

Of course, no one at Corrections reveals that the figure of 5.6% only applies to the first 12 months after release from prison. Beyond that there is no reduction whatsoever and 50% of inmates are back inside within five years.  So this is Collins’ most fundamental failure – making bold claims about reducing reoffending – but not being able to perform.

Collins is also responsible for the overcrowding crisis in our prison system which has contributed to these poor results. There are now over 10,000 Kiwis locked up – an all-time high. This mass incarceration is almost entirely due to the raft of ‘tough on crime’ Bills introduced by Judith as Minister of Justice from 2011 to 2014.  She pandered to ACT by passing the three strikes law; made sweeping changes to bail laws making it much harder for defendants to get bail; and raised the bar for prisoners seeking parole so they end up serving more time in prison and struggle to reintegrate afterwards.

Although all categories of prisoners are up, the biggest increase has been in the number held on remand – Kiwis that have not yet been found guilty of the crimes with which they are charged.

collins3These policy changes have put the prison system under enormous pressure. This pressure cooker has had the biggest impact on Mt Eden prison where most remand prisoners are held.

There is also no getting away from the fact that Collins was the Minister in charge of Corrections when Mt Eden was contracted out to Serco, a private British company with a well-established track record of failure. We all know how that turned out. Poor old Sam Lotu-Iiga carried the can for the fight club debacle, but there is no doubt he was set up to fail by Collins. As The Spinoff argues in this excellent analysis of Judith Collins’ many failures:

moj “It is the Minister of Justice who sets the agenda and the policies for the justice system. Corrections just wipes up the mess that follows.”

Before Bill English gave her the boot as Corrections Minister, Judith got to announce one more massive mistake which is likely to have a detrimental impact for years to come.  Displaying her punitive personality for all to see, she proclaimed (in Corrections Works) she “was pleased to announce that the government has approved plans to increase prison capacity by 1800 beds” and that the Government was going to spend (in reality waste) $2.5 billion of the taxpayers’ money doing so. Collins was pleased because she continues to believe that prison deters criminal offending – and has never bothered to read the criminology research which overwhelmingly shows that prison acts more like a university for crime than a deterrent.

overcrowding

Bill English, on the other hand, believes that early intervention and targeting dysfunctional or struggling families is the best way to help at-risk kids before they become the next generation of prisoners. He quotes research which shows that on average, children brought up in at risk environments will cost the state $270,000 over their lifetime compared with just $33,000 for those who are fortunate enough to be born into pro-social environments which are relatively risk free.

Bill has the support of the new Justice Minister Amy Adams who says the Government doesn’t have “vast amounts of money to throw at new things”, but was going to look at social and mental health interventions with at risk families to see if they would make a difference.

Ironically, the reason the Government doesn’t have vast amounts of money to address the drivers of crime is because they keep spending it on new prisons. And this is why Bill had to fire Judith. Using her roles as Justice and Corrections Minister, Collins has been taking the country in a direction that Bill clearly doesn’t want to go.

So does this mean that as Prime Minister, Mr English is now going to cancel the new prison and put the $2.5 billion into social justice investment? Not bloody likely. Not unless he wants to lose the next election as badly as he did in 2002. For Government, holding onto power is always more important than implementing evidence based policy that might actually make a difference.

scapegoatThere is a cheaper option. The government could simply repeal Judith’s Bail Amendment Act and reduce the prison population overnight. That would save $2.5 billion at the stroke of a pen.

What are the chances of that happening? None whatsoever.

That would be an admission of failure. For politicians, sticking to your guns – even when you know you’re heading in the wrong direction – seems to be far more important than admitting you made a mistake. It’s much easier to find a scapegoat and blame it all on him, or her. Who fits the Bill? Judith Collins, of course.

Solicitor General and police use fabricated evidential test to avoid prosecuting prison officers

Mike HeronThe Solicitor-General, Michael Heron (left) has manufactured an erroneous Evidential Test which the police then use to avoid prosecuting selected offenders. The test is ambiguous, misleading and based on an entirely false premise. It seems to completely confuse the police who then use it to undermine the role of the jury.

The police used this flawed test in their decision not to prosecute any of the Corrections staff who left Jai Davis to die from ‘internally concealed’ drugs in the Otago prison in 2011. As a result, the police never gave a jury the chance to hear the evidence – let alone decide whether any prison officers or nurses were guilty of negligence or manslaughter.

Because they’d been monitoring prisoners’ phone calls, management at Corrections believed Davis had drugs inside him when he was brought to prison on Friday, 11 February 2011; so they placed him in a special observation cell, one with a camera on 24/7. After two days, his condition deteriorated dramatically, but none of the numerous nurses or prison officers responsible for looking after him called a doctor or an ambulance. Steve McgregorAfter a drawn out investigation which took three years, police announced they would not lay charges against anyone involved.  Detective Inspector Steve McGregor (right) claimed the evidence did not ‘meet the threshold required to proceed’.

The evidential test for prosecution

So what is the so-called ‘threshold’ for prosecution? In criminal investigations, police use the Solicitor-General’s Prosecution Guidelines to assist them. But the guidelines are confused and contradictory. For instance, paragraph 5 states:

“The Test for Prosecution is met if the evidence which can be adduced in Court is sufficient to provide a reasonable prospect of conviction – the Evidential Test.  What is required by the evidential test is that there is an objectively reasonable prospect of a conviction on the evidence. The apparent cogency and creditability of evidence is not a mathematical science, but rather a matter of judgment for the prosecutor.”

Talk about confusing.  One sentence uses the word ‘objectively’ as if there was a scientific test which produces a factual, clear-cut result. The next sentence acknowledges that there is no such test and whether to lay charges is entirely subject to the prosecutor’s experience and personal assessment of the evidence.

The confusion in the Guidelines doesn’t stop there. Section 2.3 says:

“They reflect the aspirations and practices of prosecutors who adhere to the United Nations Guidelines on the Role of the Prosecutor (1990) and the International Association of Prosecutors Standards (IAPS) 1999.”

No they don’t. The IAP Standards state:

“In the institution of criminal proceedings, (prosecutors) will proceed only when a case is well-founded upon evidence reasonably believed to be reliable and admissible, and will not continue with a prosecution in the absence of such evidence”.

The focus here is on evidence that is ‘well-founded’ and ‘reliable’.  The IAP Standards don’t even mention an ‘evidential test’, let alone the need for a reasonable prospect for conviction. Neither do the United Nations Guidelines. In regard to criminal proceedings, they state:

“Prosecutors shall not initiate or continue prosecution, or shall make every effort to stay proceedings, when an impartial investigation shows the charge to be unfounded.”

An unfounded charge is one in which the investigation establishes that no crime has been committed. This is an entirely different matter from the Solicitor General’s requirement that, where a crime has been committed, there should also be a reasonable prospect of conviction.

In other words the New Zealand Guidelines are confused and misleading on at least two separate points. In regard to criminal prosecutions, they are not based on the International Standards. And they suggest there is an objective evidential test for prosecution when clearly there is not. This means the Solicitor General’s requirement that a prosecution should only proceed if there is an objectively reasonable prospect of conviction is a judicial aberration – one that enables police to completely undercut the role of the jury.

Usurping the role of the juryDavid Crerar

That’s what happened in the Jai Davis case. Fortunately, once the police washed their hands of it, the coroner was able to take a look at the evidence. The inquest in November 2014, held by David Crerar (right), turned out to be the longest and most intensive hearing into the death of a prisoner ever conducted in New Zealand.  It uncovered a wealth of well-founded and reliable evidence much of which has been documented in the media. In essence, the coroner heard that at least ten officers, six nurses and three prison managers all believed Davis was internally concealing drugs – but not one of them called the prison doctor or called an ambulance.

The evidence was so compelling that at the end of the inquest, police announced they would reconsider whether to prosecute. Presumably the potential charges are ‘failing to provide the necessaries of life’, ‘gross neglect of duties’ and possibly ‘manslaughter’.

The Police need to do their job and prosecute those involved. If they don’t – because they might not get a conviction – they let the perpetrators go free without even allowing a jury to look at the evidence. In effect, the police appoint themselves as judge and jury.  That’s not how the system is supposed to work. The role of the police is to present well-founded, reliable evidence that a crime has been committed.  It’s up to the jury to decide whether that evidence is sufficient for a conviction to be reached beyond reasonable doubt.

Police double standard

It’s not just the Solicitor-General’s Guidelines that are problematic. The police also have a well-established double standard  when it comes to prosecuting crimes of negligence. They frequently charge offenders in the community for negligence or failing to provide the necessaries of life to vulnerable family members – but never charge anyone at Corrections when a vulnerable prisoner dies.  The reality is that Jai Davis is just another dead prisoner in a long line of prisoners where a jury never got to hear the evidence.

That’s not justice. That’s corruption – and it’s been going on for years. One could even argue that by consistently refusing to prosecute and hold prison staff to account, this amounts to a conspiracy to pervert the course of justice by agencies of the State – namely the Solicitor-General, the Police and Corrections. Perverting the course of justice carries a possible penalty of seven years in prison.  But I can’t see anyone being prosecuted for that. It wouldn’t meet the evidential test, would it?  Of course not.

_____________________________________________________________________________

For a more detailed critique of the evidential test, see this letter to the IPCA about the police failure to prosecute anyone over the death of Jai Davis.

For a more detailed analysis of police double standards, see this letter to the IPCA comparing police prosecutions in the community with those against prison staff.

Prisoner’s death: Detective compares Corrections Department to Jonah Lomu

Jonah 2This week the Dunedin coroner, David Crerar, has been holding an inquest into the death of Jai Davis at Otago prison in February 2011 from a suspected drug overdose. It’s taken over three years for the the inquest to start – mainly because for 12 months after Davis died, the police did virtually nothing about it. It looked like a suicide, so they just weren’t interested.

When I heard what had actually happened, I made a complaint to the IPCA about the inadequate police investigation. As a result, Detective Senior Sergeant Colin Blackie was eventually appointed to conduct a more thorough investigation. He did an excellent job. Over 60 Corrections staff were interviewed – including the managers, officers and nurses who were at Otago prison at the time. That took another year.

How Davis died

The circumstances contributing to Davis’ death are complex. But in a nutshell, he was admitted to the prison on Friday, 11 February 2011 when the health centre manager, Jill Thompson, was mysteriously absent from her post. There was no doctor on duty either; there hardly ever is – see Prison deaths linked to Corrections refusal to employ sufficient doctors.

Because Corrections had been monitoring prisoner’s phone calls, both the Police and the Corrections Department were aware Davis was likely to be internally concealing drugs when they brought him in. Davis was put into an ‘At Risk’ cell which has a camera on 24/7. Staff were also supposed to physically check on him every 15 minutes. The checks weren’t carried out properly and over the next two days, Davis became visibly unwell. Although he was seen by half a dozen different nurses during the weekend, not one of them bothered to call the doctor.  Davis died at about 10.00pm on Sunday, 13 February, after the nurses had all gone home.

Once Colin Blackie finished his investigation, senior police at head office analysed the information to determine whether anyone should be charged with a criminal offence – such as “failing to provide the necessaries of life”. That took another six months, but at the end of the day, no one was charged with anything. This week, the coroner was finally able to start the inquest into what went wrong.

Colin BlackieColin Blackie (left) partly blamed the slow start to the investigation. His testimony at the inquest was discussed on RNZ’s Checkpoint programme: ‘Delays into Jai Davis’ death impeded investigation’ (3’ 37”). A brief except follows:

Interviewer: “Emotions were running high as Detective Senior Sergeant Colin Blackie of the CIB told coroner David Crearer a tale of woes at the prison.”

Colin Blackie: “My view after what I believe was a thorough investigation is that over those few days (in February 2011 when Davis died), there was dysfunctionality within the prison. (I believe) that the three pillars of structure, communication and leadership were failing. There was a disconnect between the work groups (prison officers and nurses) and individuals (responsible for looking after Davis).”

“I use the analogy of five people trying to tackle Jonah Lomu. Everyone falls off and blames the others – and Jonah scores the try. And that’s how I viewed it at the end of this investigation. There was systemic failure by certain people and certain workgroups and no one standing up to be accountable for the treatment and care of Mr Davis.”

Jonah was a juggernaut

JonahThe analogy with Jonah Lomu is valid.  Jonah was a juggernaut – defined as ‘any large, overpowering, destructive force or object’. Once he got going, he was virtually unstoppable. For rugby fans, it was always a joy to see half a dozen guys trying to tackle him at once. He would usually just crash into them, step over the top, and go on to score a try.

The Corrections Department is equally overpowering and destructive – to the extent that in the last 10 years, approximately 90 inmates have died ‘unnatural deaths’ in prison. Most of these deaths are described as suicides. But because prison conditions are so harsh, the suicide rate inside is on average seven times higher than in the suicide rate in the community. In 2011 when 11 prisoners committed suicide – not counting Jai Davis who died after internally concealing drugs – it was 11 times higher.

Despite the fact that most unnatural deaths in prison are ‘suicides’ – neglect or failure to provide medical treatment often contributes to those suicides. See the Southland Times story on the death of Richard Barriball, Prison staff ‘ignored concerns’; or the story about Kerry Joll who had a history of depression but received no treatment in prison and hung himself.

Corrections doesn’t ‘try’ at all

But here’s the real killer. Despite 90 unnatural deaths in our prisons in the last ten years, not one Corrections’ employee has ever been charged with a crime. Why? Because the Department is a juggernaut.  It seems the police haven’t got the guts to tackle a government department that’s bigger than they are – or there’s political interference – and so Corrections gets away with it. But there’s a double standard; police frequently prosecute people in the community who neglect vulnerable family members. See severe neglect leads to prison sentence – except when the victim is a prisoner.

The inquest into the Jai Davis case shows the Corrections Department continues to get away with it – just like Jonah Lomu pushing all opposition aside. The only difference is that Jonah would go on to score a try. When it comes to saving prisoners’ lives, all too often Corrections doesn’t try at all.

When the inquest is finished, the coroner can make all the recommendations he wants. But until the police find the courage to prosecute prison officers and nurses who fail to respond to their duty of care, the Corrections juggernaut will continue steamrolling prisoners into committing suicide.

Arthur Taylor subject to cruel inhuman treatment – Ombudsman: chief executive implicated.

Arthur TaylorDuring his current incarceration in Paremoremo, Arthur Taylor has got right up the noses of Corrections officials by repeatedly taking them to court. He asked the High Court to rule that the National Party’s blanket ban on prisoners voting contradicts human rights – which it does according to the European Court of Human Rights. He appealed the smoking ban introduced by Judith Collins – and won the legal battle forcing the Government to change the rules in order to win the war.

Mr Taylor has become something of a ‘prison lawyer’ and for a while was allowed to store his legal files in a separate room. Not surprisingly, Corrections management don’t like him, and in June 2011 he was placed on ‘directed segregation’ after he was allegedly caught with a cell phone in his possession.  (If the Department’s cell blocking technology actually worked – current cost $13 million – Mr Taylor would not have been able to use a cell phone, but that’s another story.)

Directed segregation

IsolationDirected segregation means the prisoner is locked in his cell 23 hours a day and unable to communicate with other prisoners.  According to the Ombudsman, this “allows a prison to restrict or deny a prisoner the opportunity to associate with other prisoners thus reducing any influence or risk that they may present.”  However it may “only be imposed when absolutely necessary to protect the security, good order and safety of the prison, and should only be imposed for the period that such a risk exists.”

Segregation in prison is a punishment of last resort so is usually imposed for only 14 days.  Arthur Taylor was kept in segregation for more than eight months.  He complained to the Ombudsman who took the matter seriously and released a 34 page report titled the “Management of Arthur Taylor at Auckland Prison between 15 June 2011 and 30 April 2012”.

Extensions to 14 day penalty

The prison manager has to have a valid reason to extend a segregation order. So prison Residential Manager, Tony Queree, wrote a memo saying it was “clearly evident that prisoner Taylor has taken excessive advantage of the unit staff efforts to support him in the preparation of his (legal issues). No matter where we place him, he has continually shown that he presents a significant ongoing threat to the security and good order of this institution.”

Bev WakemThe Ombudsman (Beverley Wakem) could find no evidence that Mr Taylor continued to pose a risk to the security of the prison beyond the initial 14 days.  She contradicted Mr Queree’s assertions noting that:

“No incident reports, misconduct paperwork, or file notes were attached to support Mr Queree’s contention that Mr Taylor remained a threat to the security and good order of the prison… Mr Queree did not provide any information which showed the risk remained, and as such, an extension was required.

“The reference to the assistance provided to Mr Taylor for his legal matters does not appear to be valid… as approval had been given by the Department for Mr Taylor to have an office area, and there was a legal obligation for the Department to provide assistance to prisoners for the preparation of legal proceedings.”

Nevertheless, Mr Taylor ended up in continuous segregation for the next eight months – because management regard him as a litigious and difficult prisoner.  Not only was he isolated from other prisoners, for much of the time he was also denied his entitlement to exercise for an hour a day and was allowed only one five minute phone call a week. The Ombudsman was highly critical of virtually every aspect of Mr Taylor’s segregation and said:

“In many cases most, if not all, of Mr Taylor’s rights and entitlements listed on the management plan were restricted despite no risk being identified in relation to those areas… There are no documented reasons for the decision to deny (him) the ability to associate with other prisoners.”

The High Care Unit

NZ prisonAt one point, the prison manager placed Mr Taylor in what is known as the High Care Unit (HCU). This used to be known as the At Risk Unit but these cells were decommissioned years ago because of their run down condition.  At Risk Units are designed to prevent suicidal prisoners from committing suicide and operate in most New Zealand prisons.  They’re more like sensory deprivations cells – with no TV, no radio, nothing to read and no visitors allowed. The inmates hate them.

Putting psychologically vulnerable prisoners into such conditions was criticised by the Ombudsman in the 2011 OPCAT reportbecause the units are focused on custody rather than treatment.”  That report described the detrimental impact on prisoners “who had been detained in at risk units for several months, often in strip conditions, and with limited opportunities to interact with other.”  The Ombudsman has also noted that Corrections uses At Risk cells to ‘manage’ prisoners who will often “drift in and out of the At Risk Unit whether they are at risk of self-harm or not.”  

The Ombudsman was particularly concerned about conditions in the Auckland HCU, as there was no power or running water and nearby lights were left on all night. Leaving the lights on for months on end contributes to sleep deprivation – one of the ‘clean’ torture techniques used by regimes which claim to respect international law and human rights.

The psychological impact

Noting that Mr Taylor was held in these segregated conditions for months on end, the Ombudsman said “Denying a prisoner the ability to associate with other prisoners is a significant restriction to the prisoner’s rights, and can have significant impact on prisoners’ well-being and mental state of mind if the denial of association is for extended periods of time… The placement of Mr Taylor into the HCU, along with the restrictions imposed by the management plan… was more akin to a punishment regime. Further it appears that his placement into the HCU had the effect of exacerbating his behaviour rather than improving it.”

Peter WilliamsThis should come as no surprise. Retired defence lawyer, Peter Williams QC, who has extensive knowledge of prison conditions, discussed the issues in a Herald article: Jail isolation breaks souls and minds. The question is – does this constitute torture?

The Ombudsman seems to think so. In yet another OPCAT report, Monitoring Places of Detention (2013), she wrote:

Segregated prisoners at Auckland and Mt Eden prisons had particularly bad living conditions… Most prisoners placed on directed segregation were not receiving a daily minimum entitlement of one hour in the open air….The lack of appropriate management facilities at Auckland prison… is exacerbated by a lack of stimulation for those held on long-term segregation.

“Accommodation for those prisoners currently undergoing a period of segregation is well below standard and could be considered cruel and inhuman for the purposes of the Convention against Torture.”

Don’t rock the boat

In other words, the Ombudsman specifically describes the treatment of Mr Taylor as a ‘punishment regime’ which  ‘exacerbated’ his behaviour and depicts the segregation cells in Paremoremo  as ‘cruel and inhuman’.  She excuses herself from doing anything about this by putting the words ‘could be considered’ in front of ‘cruel and inhuman’.  What this seems to mean is that until a prison official is actually charged and convicted, it’s a moot point.

But the Ombudsman is not about to rock the boat. If she had been willing to take a more proactive stance, the United Nations and the New Zealand police would have to be notified and then a prosecution could then be initiated against the prison managers and Corrections chief executive, Ray Smith.

Ray SmithMr Smith would be accountable because section 58 of the Corrections Act says the chief executive has to be informed of any directed segregation “and the reasons for it” and a directed segregation can only be extended beyond 14 days if “the chief executive directs that it continue in force”.  Mr Taylor was subject to directed segregation for eight months – which indicates Mr Ray Smith is complicit in his ‘treatment’.

The potential penalties for Mr Smith are serious. The NZ Crimes of Torture Act – which includes cruel and inhuman treatment – says anyone who “conspires with any other person to commit an act of torture” or “is an accessory after the fact to an act of torture” is liable to up to ten years in prison.

Who you’re gonna call?

The reality is that describing what happened to Arthur Taylor and other segregated prisoners as torture – and suggesting the chief executive should be prosecuted, would likely lead to a media frenzy. It would be politically disastrous for the Corrections Department, the National Government and possibly for the Ombudsman.  No wonder she was reluctant to notify the United Nations or the police.

Graham McCreadyIn the absence of a more definitive statement from her, will the police prosecute anybody? I doubt it. So who you’re gonna call?

Graham McCready  of course.

Abused inmate with complex-PTSD spends 35 years in prison with no treatment

Trevor is 61 years old. He lights fires when he’s drunk. He has 17 convictions for arson but is usually so drunk when he sets fire to something, he doesn’t even remember doing it.  His lawyer asked me to conduct an alcohol and drug assessment on him late last year after yet another arson conviction.

Torture image

Trevor’s mother was an alcoholic.  As he was growing up, his parents fought and argued finally splitting up when he was just seven.  During the conflict and confusion, Trevor was shunted between his parent’s homes before they both gave up on him and put him into the care of the state – at the age of nine. Over the next few years he lived in half a dozen foster homes, occasionally going back to stay with his mother for a few months, before she kicked him out yet again.  He started drinking when he was 12.

The abuse 

Not surprisingly Trevor grew up feeling anxious and insecure. At age 16, he was sent to Lake Alice hospital where he was given shock treatment.  That really pissed him off and a couple of days later, he set fire to his bed.  That was the first one.  Two years later, he ended up in prison – where he was repeatedly raped by an older prisoner. The abuse went on for three years. By the time he got out at the age of 21, Trevor was suicidal, filled with rage and didn’t trust anyone. He was deeply, deeply disturbed.

As soon as he got out of prison Trevor started drinking.  He’s been in and out of prison ever since – 15 times to be precise.  He drinks, generally commits some petty offence, lights another fire and watches it burn. That’s when the police come and arrest him.  At the age of 61, he now has over 100 convictions and has spent 35 of the last 40 years in prison.  He has no friends, no support in the community and says he feels safer in prison.

Each time he ends up in court, the judge usually wants to know why he lights fires – and they wonder if he’s insane. Sometimes an enlightened judge orders a psychiatric assessment. Just before I saw him in 2013, Trevor had been interviewed by a clinical psychologist and a psychiatrist.  I read the reports. They both decided he wasn’t insane – but neither of them made a diagnosis. They didn’t seem to know what was wrong with him. 

Complex-PTSD

I believe I do know what’s wrong with Trevor: he has Complex-Post Traumatic Stress Disorder. This is an enduring version of PTSD which results from prolonged exposure to interpersonal trauma. The trauma is exacerbated when it occurs in the context of captivity or entrapment and affects the development of the victim’s thinking and personality. Individuals with complex-PTSD generally experience a profound sense of emptiness, chronically low mood and social isolation – combined with intense anger and rage.

At the age of 61, Trevor experiences all of these and still thinks about what has happened to him every day. But he is polite and articulate.  Talking about his life in a calm manner, he simply said: “What a lot or people have done to me is unforgiveable.”  But when he gets out of prison, he drinks to help him forget about it. He lights fires when he’s drunk because that’s what he learnt to do at age 16 when he was disempowered, lonely and distressed. These days, it returns him to the safety of prison.

Trevor has now spent 35 years inside. During this time, he has never even been diagnosed with PTSD let alone had had any counselling or treatment for it. The psychologist who interviewed him in 2013 wrote:

“Trevor Xxx was interested in receiving therapy with regard to his angry feelings, attachment issues and sexual abuse. Sexual abuse victimisation can be addressed by ACC sensitive claims. Therapy in these areas is likely to reduce his risk of reoffending.”

No therapy was provided. In my report to the court, I wrote:

“The Department should have provided counselling for Mr Xxx’s childhood trauma 40 years ago. Having then allowed him to be raped and abused in prison, the Department should have provided therapy every time he subsequently ended up in prison. If it had, it is possible Mr Xxx would no longer need to anesthetize himself with alcohol every time he gets out.”

The cost of insanity

Trevor is far from insane. He has both insight and intelligence. He knows he’s an alcoholic; he knows he lights fires when he’s drunk and he knows that makes him a risk to society. He also understands that society has to be protected from someone like him. He even knows the system sucks and he’s not going to get any help in prison. He told me the Corrections Department doesn’t have the resources to provide him with a psychologist to actually try and help him.

He’s absolutely right about not getting any help. But he’s dead wrong about the resources. It costs the taxpayer $100,000 a year to keep someone in prison. After 35 years, the Department has already spent $3.5 million just locking him up. If he lives another ten years and spends most of that in prison, Corrections will spend another $1 million on him before he dies. So you can’t tell me they haven’t got the resources to help him – it’s the system that’s insane, not Mr Xxx.

Prison deaths linked to Corrections refusal to employ sufficient doctors

Three former prison doctors recently called for an inquiry into prison medical services after the death of two inmates at the Otago prison. In September, the Southland Times expressed concerns about the high suicide rate in prison: Jail health and suicide inquiry demandedMedical ethics for dummiesThese stories follow allegations that the Corrections Department discourages prison doctors from prescribing pain killers and other essential medication, that it pushes doctors into breaching their medical ethics and operates a ‘minimum services dental policy’ leaving hundreds of prisoners in pain. On this blog, it has been argued that these policies constitute deliberate ‘negligence by government officials’ and are a form of pharmacological torture.

I have now discovered that at the core of this negligence, there is a major shortage of doctors and dentists in prison. This shortage pushes nurses into the role of gatekeepers – deciding who can and who can’t see the doctor.[i]

The United Nations Minimum Rules for prisoners

Theoretically, getting to see a doctor in prison should be easy. The United Nations Standard Minimum Rules for the Treatment of Prisoners state that:

“At every institution (i.e.  Prison) there shall be available the services of at least one qualified medical officer…” and “The medical officer shall have the care of the physical and mental health of the prisoners and should daily see all sick prisoners, all who complain of illness, and any prisoner to whom his attention is specially directed.“

This rule is indirectly endorsed  by Section 75 of the Corrections Act 2004 which states that prisoners are entitled to receive a standard of medical care which is “reasonably equivalent” to that which is available in the community.  In a nutshell, these rules suggest that a medical officer (i.e. doctor) should be available to prisoners seven days a week – as is the case in the community where patients can visit their GP Monday to Friday and use an after hours’ service on the weekends.

To see whether Corrections is meetings its statutory obligations, I made an OIA asking how many hours a week doctors were on duty in each prison.  I received a reply from Bronwyn Donaldson, Director of Offender Health, containing this chart which shows the number of hours that doctors are contracted to work at every prison in the country. It looks pretty much like this (below) except that it contains the figures for all 17 prisons:

Prison Doctor contracted hours Number of doctors No of prisoners
Auckland prison

18 hours

3 Part-time

681

Mt Eden

28 hours

3 Part-time

996

Springhill

18 hours

1 Part-time

1050

Hawkes Bay

10 hours

1 Part-time

666

Rimutaka

28.5 hours

4 Part-time

942

Christchurch

24 hours

2 Part-time

926

Otago

10 hours

2 Part-time

485

Invercargill

2.5 hours

1 Part-time

180

The first thing to notice is that there is not a single prison in the country where a doctor is on duty for five days in the week, let alone seven.  The greatest number of hours a doctor is available is 28 (or 3½ days) – at Rimutaka and Mt Eden – each of which has about 1,000 prisoners.  The lowest number is 2½ hours a week – at Invercargill – which has 180 prisoners. No wonder prisoners complain that nurses often prevent them from seeing the doctor – most of the time there isn’t one on duty.

The ratio of doctors to prisoners

In order for there to be an ‘equivalent’ level of care in prison, the ratio of doctors to prisoners has to be similar to the ratio of doctors available to the general public.  But Corrections doesn’t get anywhere near this. In 2010, there were 13,883 full-time general practitioners in New Zealand. This translates to 317 doctors per 100,000 of the population – or one doctor for every 315 people.   In June 2013, the prison population was 8,597. The total number of hours worked in one week by all prison doctors combined is 229 – equivalent to 5.7 doctors working 40 hours a week.  This represents an average (over all 17 prisons) of one doctor per 1505 prisoners.  In other words, prison doctors have to service nearly five times as many patients as doctors in the community.

In some prisons, the ratio is even worse than that.  Hawkes Bay prison holds 666 prisoners but has a doctor on duty for only 10 hours a week.  That gives a (full-time) ratio of one doctor per 2,664 prisoners.  Tongariro/Rangipo holds 540 prisoners but the Department has allocated a doctor for only seven hours a week.  That gives a (full-time) ratio of one doctor per 3,085 prisoners.[ii]  That doctor has to take care of nearly ten times as many patients as a doctor in the community.

The high health needs of prisoners 

Michael Tyrrell handcuffed to his hospital bed the day before he died. His daughter took the photo

These are disturbing figures – but they represent only half the picture.  This is because prisoners have much higher health needs than the general population. In the words of the National Health Committee: “A special case of health need exists in prison.” (iii) In support of this statement, the NHC reports that the lifetime prevalence of alcohol abuse and dependence among men in prison is twice that of men in the wider population.  The lifetime prevalence of drug disorders is eight times higher.  Historically, smoking rates among prisoners have been nearly three times higher for men and four times higher for women – although these figures may improve with the recent ban on cigarettes in prison.

The rate of heart disease among male prisoners is 3.3 times higher than males in the community while female prisoners have twice the rate of asthma compared with women in the community.   Rates for hepatitis C among prisoners are also much higher – 8.1% for women and 5.8% for men compared with only 0.3% in the general population.

In regard to mental illness, the prevalence of schizophrenia among prisoners is more than three time the community rate; rates of post-traumatic stress disorder are four times higher for women and five times higher for men.  Australian research suggests up to 30% of those in prison have intellectual disabilities and 50% are affected by a psychiatric disorder.  The figures are likely to be similar in New Zealand.

How many doctors are required for equivalence?

In other words, prisoners have more medical problems, more complex problems, and a much greater need for medical services than the general populace.  This means that providing the same doctor/patient ratio in prison as in the community would not actually provide an equivalent standard of care.  In order to receive equivalent care, the prison population appears to need at least twice as many doctors per person.

The Royal New Zealand College of General Practitioners (which has been accused of sweeping prison suicides under the Cornerstone) believes that a ratio of one (full-time) doctor to 1000 patients “presents the best working environment for GPs”.  At that level, prisoners might receive a standard of care which is superficially ‘equivalent’.  Given the extraordinary high health needs of those in prison, the ratio would probably need to be one doctor per 500 prisoners before it could be called ‘reasonably equivalent’.  In that case there would need to be 17 full time doctors available rather than the current 5.7.

Systemic breaches of the Crimes Act

In conclusion, it seems blatantly obvious that the Corrections Department is not providing anywhere near an equivalent level of care to prisoners and is therefore in breach of section 75 of the Corrections Act.  Unfortunately, this doesn’t seem to be a crime.  However, breaching section 151 of the Crimes Act is.  The Crimes Act requires anyone who has vulnerable individuals in their care:

(a) to provide that person with necessaries; and

(b) to take reasonable steps to protect that person from injury.”

Basic medical care is absolutely necessary.  Failing to employ sufficient doctors to provide this means health problems may be left unattended leading to unnecessary pain and suffering, sometimes with fatal consequences.  The death of Jai Davis and suicide of Richard Barriball in the Otago prison two years ago are a direct result of the Department’s failure to provide medical necessaries. Although the police showed no interest at the time, after I made a formal complaint to the IPCA, the police finally began  investigating these two deaths at the start of 2013. The investigation is on-going and no one in Corrections has yet been charged with a crime. Even if someone is, unless the Department doubles or trebles the number of doctors, prisoners will continue to die because of medical neglect.

Management at Corrections clearly don’t care. In her reply to my OIA, Bronwyn Donaldson, Director of Offender Health, said:

 “I can advise that the Department has contracted sufficient hours for doctors to provide care to prisoners…the Department does not have any concerns about the hours currently worked in its prisons.”


[i]  The difficulties prisoners experience accessing a prison doctor have been documented by the Ombudsman in his Investigation of the Department  of Corrections in relation to the Provision, Access and Availability of Prisoner Health Services. The negative impact this has on the relationship between nurses and prisoners is described by Dr Michael Roguski in The Effects of Imprisonment on Inmates’ Health and Wellbeing.

[ii]  The Ministry of Health says that when a doctor has more than 2000 patients, this is an ‘alert’ level indicating risk for the doctor as well as the patients.

[iii] Health in Justice, Improving the health of prisoners and their families and whānau, p 24-25.