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The law – repealed under Labour in 2022 – imposed a mandatory prison sentence of seven years for individuals who committed a third “strike” or violent offence.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 receives 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.

The prison population is still rising and is now over 10,000 – again.  In February last year, the muster hit an all-time high of 10,700.  Towards  the end of the year, it dropped to 9,700 but is now back up again.

At the peak, Andrew Little and Kelvin Davis announced that Labour wanted to cut the prison population by 30% in 15 years – otherwise we would need another prison

The media were all over the story. One NZ Herald headline read: Govt wants to axe new prison and lower prison muster. This was a reference to the new prison that the National government had been planning to build to cope with the blowout.   The Otago Daily Times trumpeted: Little lays out plan to cut prison population.   Stuff said: Government aims to cut prison population and fix ‘abnormal’ system.

In an attempt to reduce the length of prison sentences, Andrew Little made an aborted attempt to repeal the onerous three strikes law. This was shot down by NZ First which refused to play along with its coalition partners. Then Kelvin Davis stepped into the breach. He offered temporary relief telling Corrections management to make administrative changes which would cut prison numbers without having to change the law. Writing in the Spinoff, Roger Brooking wrote: Kelvin Davis has a cunning plan to cut the prison population – and it’s working.

This helped a bit. In December last year the muster dropped to 9,700. Writing in Stuff, Laura Walters observed: Prison population drops by seven per cent in six months, system crisis averted. But administrative changes were never going to cut the mustard – or the muster. In order to reduce the prison population by 30%, the Government needs to make substantive legislative changes to reduce the revolving door that our prisons, and our justice system, have become. In another Spinoff article Brooking described How to cut the prison population by 50% in five years.

Government PR campaign

Embarrassed by his aborted effort to repeal the three strikes law, Andrew Little was in no mood for additional attempts at legal amendments. Instead, Labour launched a massive publicity campaign designed to win the hearts and minds of the public that the entire justice system needed to be reformed.

It began with a criminal justice summit held in Porirua in August last year which the government called “the start of a conversation.” This was followed by the appointment of a panel led by former National MP, Chester Borrows. The panel held a series of meetings up and down the country, to which the public were invited to give their opinions on how New Zealand could develop a Safe and Effective justice system. Andrew Little subsequently made remarks in the media that New Zealand’s entire justice system was broken. I beg to differ. It’s not the Justice system that’s broken – it’s the political system. In the last 30 years, political parties of both persuasions have competed with each other to pass tough on crime laws which are directly responsible for the dramatic increase in the prison population.

One of those laws was the Bail Amendment Act passed in response to the murder of Christie Marceau in 2011.  See How the murder of Christie Marceau led to 1,500 more people in prison. This piece of legislation more than doubled the number of Kiwis being held in prison on remand.

Now that prison population is over 10,000 again, the number on remand is at an all-time high. In response to an OIA, Corrections advises that on 28 February this year, the prison population was 10,015 of which 3,421 were on remand.  That’s 34% of the total. In other words, 34% of prisoners in New Zealand have yet to be convicted of a crime.

What happened to the fundamental legal principle:  Innocent until proven guilty? Perhaps Andrew Little is right – our justice system is broken – we lock up way too many people who have yet to be convicted of a crime. Isn’t that what third-world dictators, communist countries and authoritarian, anti-democratic regimes do?

New Zealanders like their murder victims to be young, attractive, female – and white. When they are, we make a real fuss. Look at the publicity currently generated by the murder of 18-year-old Christie Marceau in 2011 and 22-year-old British backpacker, Grace Millane, just two weeks ago. Here’s just a few of the recent headlines: Grace’s legacy – Prominent women challenge men and Govt and ‘Senseless killing’ – Grace’s death was like my daughters.

Prime Minister, Jacinda Ardern, felt it necessary to make a national apology claiming All New Zealanders ‘will feel heartbreak for that family’. The Guardian summed it up claiming that Grace Millane murder prompts outpouring of grief in New Zealand.  

‘Missing white woman syndrome’

It’s intense. Writing on Stuff, Alison Mau pointed out that ‘plentiful pictures of gorgeous Grace were available’ in this plethora of publicity and implied that all this attention is inherently racist. She noted that social scientists call it ‘Missing White Woman Syndrome’ defined by…

“the media’s undue focus on upper-middle-class white women who disappear, with the disproportionate degree of coverage they receive being compared to cases of missing men or boys, women of colour, and women of lower social classes.”

Mau reports that in Western countries like New Zealand, numerous studies reveal “viewers will stay glued to the set to hear endlessly about young, photogenic missing women – but only if they’re white” and can be depicted as “innocent” and “angelic”.

Mau makes the point that Grace is the 15^th woman to be murdered in New Zealand this year.  But none of the other murders acquired anywhere near the same amount of attention – bearing in mind 31% of homicide victims are Maori and 62% of victims are male.  Paul Little argued in Grace Millane case highlights a terrible double standard that:

“Grace Millane and her memory deserve every tribute, and her whānau deserve every iota of sympathy that comes their way. But so did those other victims… we act as though all lives aren’t created equal.”

The murder of Christie Marceau

The media’s response to the murder of Christie Marceau was equally intense. She was also young, attractive, female and white. Christie was killed by Ashkay Chand who two months earlier had already threatened to rape and kill her. Much of the subsequent outrage, driven by Garth McVicar, was directed at the judge who allowed Chand out of prison on bail. McVicar even started a campaign to have the bail laws amended so this would never happen again.

Sure enough, two years later, National passed the Bail Amendment Act which doubled the number of prisoners on remand in three years and created a crisis in prison capacity. In response, Justice Minister, Andrew Little, said Labour wanted to reduce the prison population by 30%.

One of the concerns about the Grace Millane case is that Google and British media breached the temporary suppression order and named the alleged perpetrator. Peter Williams claimed the internet has compromised justice and wondered whether he can get a fair trial. Williams also found it totally inappropriate that the Prime Minister made a public apology to the Millane family. He wrote:

“Has a New Zealand political leader ever made such an emotional comment about a homicide victim before? More pertinently, why would the Prime Minister think it appropriate to comment on one homicide victim in a week when there were at least three other homicides in the country? Politicising a homicide case is not appropriate. Do it for one, and you really should do it for all.”

And not just for the families of attractive, young, white females. Each year approximately 50 people are murdered in New Zealand – giving us one of the lowest homicide rates in the world. No one in the Government has ever apologised to any of these families – not even to the family of Christie Marceau where a judge was (incorrectly) accused of being at fault.

Media commentator, Jim Tucker, thinks the outpouring of outrage is because Grace’s murder has embarrassed us overseas.  It seems we’re so embarrassed that a …

“cohort of prominent women including former Prime Ministers Helen Clarke and Jenny Shipley signed an open letter to the men and government of New Zealand and submitted it to the Prime Minister’s office. The letter stated that New Zealand had some of the worst statistics for violence against women in the OECD and listed actions each party could take to make our country a safer place.”

Of course, different countries define and report violence using a variety of methodologies so it is not clear how reliable these statistics actually are. Nevertheless, in yet another headline, the ‘Government says it is listening’.

That’s a worry. Ever since the law and order referendum initiated by Norm Withers in 1999, New Zealand has been listening to populists with a penchant for punitive legislation. Just this year, a Bill was introduced requiring judges to impose a six-month prison sentence on anyone who attacks a paramedic or other first responder. At the beginning of December, new legislation came into effect penalising attempted strangulation. Both of these will put more people in prison.

Why is this politically dangerous?

It’s dangerous because it risks escalating the pathetic competition between political parties to be tough on crime which has gone on for the last 20 years – and because it will undermine Andrew Little’s aborted attempts to reduce the prison population.

So how will politicians respond to the murder of Grace Millane? Chances are some right-wing MP will try to re-introduce a private member’s Bill advocating the death penalty for the murder of attractive, young, white women. Further down the track, some other MPs could decide to hang the killers of less attractive, young, white women – or even wrinkled, older, white women. That would keep the prison population down.

Writing in Newsroom last week, Laura Walters discusses the work being done by the Justice Advisory Panel appointed by Andrew Little. She says the Panel has found that:

“there is widespread acceptance that New Zealand has a broken justice system”.

She says the head of the advisory panel, Chester Burrows, claims there needs to be a change of focus from punishment to healing and quotes him as saying:

“the type of changes being promised would take at least a generation to be delivered.”

Apparently, Justice Minister, Andrew Little, and National Party justice spokesman Mark Mitchell agreed with Borrows that transformative change like this would take time.

Key statistics

The notion that the justice system is broken is based on three key statistics. The first is that prison population recently hit an all-time high of 10,800 – although it may have dropped a bit since then. The second is that 50% of inmates are Maori even though they make up only 15% of the general population. The third is that rehabilitation programmes are ineffective with the result that 60% of prison inmates re-offend within two years of being released.

Rather than ‘broken’, the number of Kiwis in prison suggests the system is far too efficient. It has been locking up Kiwis in record numbers, currently 220 inmates per 100,000 of the general population. The reality is that New Zealand incarcerates more people than corrupt, undemocratic countries such as Honduras – which has the highest murder rate in the world but a prison rate of only 200. We also lock up more than other western democracies like Australia where the rate of imprisonment is 167 per 100,000; England & Wales (143); Canada (114); Finland (57); and Iceland (38) –  which is rated the safest country in the world and has exactly the same number of murders per head of population as New Zealand.

Solving the primary problem

So, if we solved the first problem – that there are too many Kiwis in prison – that would largely solve the other two. For instance, if there were only 5,000 people in prison instead of 10,000, only 2,500 would be Maori instead of 5,000. Similarly, even if 60% continued to reoffend, that would be 3,000 reoffenders instead of 6,000. That doesn’t mean we shouldn’t tackle institutional racism in the justice system or try to reduce re-offending, but the greatest gains will be achieved by quick-fix measures which reduce the prison population.

Once upon a time, Andrew Little would have agreed. He said he wanted to reduce the muster by 30% within 15 years. He seems to have given up on that goal. Instead of reducing the prison muster, now he wants to fix the entire justice system and claims it will take a generation – which is about 30 years.

That’s a shame – because the prison population could be easily be reduced by 30% within three years. All the government has to do is repeal the Bail Amendment Act of 2013 which led to an extra 1,500 people sent to prison on remand (i.e. not yet convicted); and allow 1,500 low risk prisoners to be released automatically half way through their sentence – instead of making them go before the Parole Board which, according to Mike Williams, has lost the plot.

The need for public support

Unfortunately, after failing to repeal the three strikes law, Andrew Little seems to have given up on amending any legislation at all. Instead, it seems he wants to change the punitive culture that Garth McVicar, the media and the two major political parties have generated in the last 20 years by talking ‘tough on crime’ – a process known as penal populism.   Instead of using legislation, it seems Mr Little now wants public support to change the public narrative – but admits he’ll have to wait 30 years to get it. This text he sent me a few days ago demonstrates his shift of focus.

Andrew Little needs to get on with it

The problem is, Little doesn’t have 30 years. He doesn’t even have 15. This coalition government has two years to run.  Simon Bridges is not doing well as leader of the Nats and so Labour may get another three years. So if Little is serious about cutting the prison muster, or reforming the justice system, he needs to get on with it.

And he’s dead wrong when he says it’s not about the legislation. The current crisis in the prison muster is a direct result of a raft of tough on crime bills passed by both National and Labour in the last 20 years;  both parties have been all too willing to jump on Garth McVicar’s bandwagon to ‘lock ‘em up and throw away the key’.

Andrew Little seems to have realised the futility of this approach; he recently referred to McVicar as ‘loopy’. But there is no doubt that the current crisis in our prison system is the direct result of 20 years of fear-mongering and scare tactics about keeping the community safe.  Now Mr Little wants to reverse course. But he can’t repeal any of these measures because Labour doesn’t even have the support of coalition partner, NZ First, let alone the New Zealand public. I rest my case. It’s not the justice system that’s broken. It’s the political system.

When Blackadder and Baldrick were in a difficult situation, Baldrick would come up with a turn of phrase which became a standing joke: “I have a cunning plan” he would say.

The Labour government is also in a tricky situation with regard to justice reform. Andrew Little and Kelvin Davis want to reduce the prison population by 30%. The fly in the ointment is NZ First which shot down Little’s recent proposal to repeal the three strikes law.

Given NZ First’s uncompromising stance on law and order, Labour is unlikely to pass any legislative proposals related to crime and punishment in this parliamentary term. But just as Baldrick used to do, Kelvin Davis and Corrections have come up with a cunning plan.

Instead of repealing the three strikes law or the Bail Amendment Act, Davis has persuaded management in the Department to alleviate obstacles in the way offenders are processed in prison. Corrections deputy national commissioner, Leigh Marsh (below), was put in charge of the project and has come up with two main strategies.

Bail Support Service

One is to assist the growing number of defendants on remand apply for bail in the community instead of spending months in prison waiting for their case to come up.

Since the Bail Amendment Act was passed in 2013 making it more difficult for defendants to get bail, offenders are now far more likely to be remanded in prison. However, they may be eligible to apply for electronically monitored bail (known as ebail); the defendant has to come up with a suitable address, and whoever lives there (usually family), has to give their permission.

To apply, the offender has to write to the people in the house and ask if he can stay there on ebail. He may not know the exact address which is another obstacle. Even if he does, whoever he writes to might not bother to reply. If they say ‘no’, then the prisoner has to come up with someone else to write to.  Of course, all this assumes the prisoner can read and write – when the reality is that 70% of those in prison struggle with basic literacy.  In other words, this is a slow frustrating procedure and most of those on remand just give up and wait till their day in court.

According to Corrections deputy national commissioner, Leigh Marsh, Corrections has put a rocket under remand by creating a Bail Support Service and a bail phone App.  Bail Officers visit the prisoner the day after he is remanded in prison to assist with the paperwork, and contact the appropriate support people. They also liase with defence counsel and try to get the defendant’s bail application before a judge within a week. This has cut dramatically the amount of time that prisoners spend on remand. Once offenders get out, they get their cell phone back and the App helps them stay on track with their bail conditions.

Parole ready

Corrections’ other new strategy is to help sentenced prisoners become ‘parole ready’. The background to this is that the Parole Board will not generally release any prisoner until he, or she, has completed a criminogenic rehabilitation programme. Often the Board insists that prisoners must do two rehab programmes before they are considered ready for release.

The problem was that until Kelvin Davis got involved, Corrections made little effort to put prisoners into programmes until they were near the end of their sentence.  That means most prisoners would end up serving almost their entire sentence, even though they became eligible for parole after completing one third.

By failing to put prisoners into programs early on in their sentence, Corrections was actively preventing them from being paroled – including low to medium risk prisoners who make up the bulk of the prison population.

Leigh Marsh says that Corrections is now making more of an effort to place prisoners into programs before their first parole hearing – something they have never done before.  As a result, in the last 12 months approximately 5% more prisoners have been released on parole.

Impact

These changes have made a significant difference.  According to Newsroom:

The population peaked in March at 10,820 and on 3 October had dropped to 10,035 – a 7.3% fall.

Two days later Stuff reported:

“The prison population has dipped below 10,000 for the first time in more than two years”.

Given that prison numbers have been rising steadily for over 50 years, it is too early to tell whether this is just a temporary blip or part of a new trend. One thing is clear. This new approach involves a great deal more respect and humanity for offenders and a much greater commitment to due process.  Instead of chucking offenders into prison to take their chances with an unresponsive system riddled with insurmountable obstacles, now Corrections is actively trying to help offenders get out and stay out.

I have to say – that’s a novel idea – one that has never been tried before in New Zealand.

Cost savings

But wait, there’s more. It costs $110,000 a year to keep someone in prison. Since there are already 800 less prisoners, that’s a potential saving of $88 million in one year. If these initiatives had been introduced 20 years ago, the savings would have been $1.7 billion. If these initiatives continue to work and eventually cut the prison population by Labour’s goal of 3,000, that would save $330 million a year. Over the next 20 years, we would save $6.6 billion.

Even Blackadder would agree – this is a very cunning plan. It’s called common sense.

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.