A Policy A Day: Humanising Criminal Justice

In the lead-up to the election, we are examining a policy a day. We’re exploring a variety of policy areas, explaining the background and analysing some of the policy options, with a mixture of technocracy and values-based approaches. Inevitably, some opinion will make its way in and we make no apology for that – after all, we’re voters too. A list of all the articles is available hereEnjoy!

Today’s post is written anonymously.

Our current criminal justice system largely reflects the one we were benevolently gifted by the British in their colonial heyday. We’ve made some tweaks here and there since then, but the principles underlying the system are basically the same: when someone commits a crime, they are charged, convicted, and punished.

Academics broadly agree that punishment is meant to achieve five purposes. It denounces and deters wrongdoing, seeks retribution against people who offend and removes them from society, and (finally) rehabilitates them into society. Punishment is therefore meant to operate on several levels. Victims should feel like those who have offended against them have been disciplined. At the same time, people who are convicted – and society at large – should be warned off similar offending behaviour in the future.

Or at least that’s how it’s meant to work in theory. People with experience in and around the criminal justice system will tell you that whether punishment ever manages to achieve the ideal balance of these objectives is debatable.

For decades, the success of our criminal justice system has been measured in rates of offending and reoffending. How many people commit a crime, and how many people, after they have been charged and convicted and punished, end up committing further crime? The problem with relying on crime rates is that they don’t reflect trends in the wider justice system. The Department of Corrections says the “crime rate is a relatively weak driver of the prison muster.” They know that rather than increases in crime, it is legislative changes that have caused the growth in our prison population since 2000.

There is a clear disconnect between crime and punishment in New Zealand: less crime has not meant fewer people starting prison sentences. And yet, when asked at a JustSpeak forum in Wellington several weeks ago, representatives from all political parties said they were committed to reducing the prison population – and the Māori prison population in particular.

The only problem is how we’re going to get there. It’s clear our current approach isn’t working. These figures are 15 years old but they show that within four years of release from prison, half of all released prisoners end up back in prison. Recent figures for Māori prisoners are grimmer: more than 60% are back in prison within two years of release (page 11).

Corrections’ figures from 15 years ago probably still hold true. If half of all prisoners return to prison within a few years, you could say that imprisonment as a policy to deter crime only has a 50% success rate over the short to medium-term. This wouldn’t be considered good enough in most other areas of human existence and wellbeing, especially when you factor in how much it costs to run prisons and the other consequences of imprisonment.

The policy success of imprisonment becomes more questionable when you look at who the system tends to punish most severely. 87% of prisoners were either unemployed or in very low-paid work right before they went to prison. 91% of prisoners have a lifetime diagnosis of mental health or substance abuse issues.

It is the people living the most precarious lives who find themselves experiencing the sharp end of justice in our country. This would also go some way in explaining our crime trends. While crime rates may not have been going up, we have seen increasing inequality and poverty over the last few decades. Instead of being a product of crime rates, our prison population might instead be a barometer of whānau ora and societal wellbeing.

Reversing the trend of a growing prison population requires going back to basics. Our imported notions of justice and fairness are no longer fit-for-purpose. We need to ask what we want our criminal justice system to do, and what its core functions should be. It’s become inadequate to say our justice system only needs to uphold laws and punish those who transgress. A 21st century criminal justice system in Aotearoa New Zealand will only succeed if it improves the lives of people who come into contact with it.

The hard part is figuring out how to achieve this. Some parties have policies that seem like a step in the right direction. Others appear determined to do the opposite. None go as far as suggesting a fundamental rethink of the purpose and modus operandi of our criminal justice system. This is probably because saying this out loud is a recipe for political disaster. It is embedded in our cultural DNA that institutions as hallowed and entrenched as the criminal justice system are not to be lightly tinkered with.

Yet tinkering is all we’ve been able to do in the last couple of decades. The most promising innovations in criminal justice have happened on the fringes. The one Matariki Court in Kaikohe, two Alcohol and Other Drug Treatment Courts in Auckland, and three Iwi Justice Panels across the country are some examples of this tinkering. The Matariki Court and Alcohol and Other Drug Treatment Courts take advantage of a provision in our Sentencing Act, which allows courts to adjourn sentencing so that a restorative or rehabilitative programme can take place. The Alcohol and Other Drug Treatment Court aims to break the cycles of substance abuse which cause or fuel offending. The Matariki Court involves the creation of culturally-appropriate rehabilitation programmes, which are provided by Ngāpuhi and other community organisations. Iwi Justice Panels are a pre-charge alternative resolution pathway, where community panels work with people who have committed low-level offences. The aim is to ensure they do not offend again by addressing any factors in their lives which may have contributed to the offending, and also rebuild relationships between people who offend and their victims.

These pilots all have one thing in common. They’re not about being judged solely based on your crime. Instead, they involve people facing up to and taking responsibility for their actions, while also being assisted by their whānau and communities to prevent future offending. They are examples of the justice system and local communities carving out space to help people address a wide range of issues in their lives in a respectful and collaborative manner. They involve treating people as individuals, and giving whānau a meaningful role to play.

Early indications from all of these pilots are positive. But instead of being adopted in the mainstream criminal justice system, these approaches remain a fringe element. They are seen as nice-to-haves rather than must-haves. While the solution may not lie entirely with these three pilots, they’re a good starting point. They represent a fundamentally different way for the criminal justice system to interact with the people within it.

The problem is that we fear change in this area, and assume it would destabilise or undermine justice itself. This fear both in government and within society is holding us back from embracing new approaches on a large scale. This isn’t the sort of situation where refusing to try means you can’t fail. Every day that we don’t try means continued failure for the people who experience a criminal justice system that doesn’t comprehend their needs, whether they have committed a crime or been victimised (or both).

Come September 24, it is hard to imagine any government proactively taking a long, hard look at our criminal justice system. To do so requires courage: the courage to admit our current system isn’t working; to undo counter-productive legislative changes; and to say that people like prisoners are worthy recipients of our collective compassion and respect. Perhaps we can help our next government by demonstrating these are conversations we’re ready to have.

Today’s contributor works in the public sector and has chosen to remain anonymous. The views expressed are their own.

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