The following blog is based on notes from a presentation given as part of the University of Wollongong Tauranga campuses public lecture series for 2018:
Earlier this year the Minister of Justice, Andrew Little announced the latest in what has been, since the late 1980s, a long line of reviews, tax payer-funded summits and inter-agency, ‘whole-of-government’ projects aimed at making the criminal justice system work more efficiently and effectively.
Officially launched at a summit held in Porirua in October, the stated aim of the review is to reduce New Zealand’s prison muster by 30 percent over the next 15 years. And a specific focus of the review is on the significant over-representation of Maori in the prison population specifically, and in the criminal justice system overall.
This presentation represents a modest offering in response to the current government’s attempt to make the justice system more effective, and just.
Before I move into the main part of my presentation, I want to say something about the focus and intent of my commentary:
There are two key themes that both run thru my presentation and join the elements together:
The policy sector/political class has had the lead for decades in developing and implementing responses to social harm. It is fair to say that its impact has been mixed, with as many failures as successes, although given the lack of independent scrutiny of its activities, this is a subjective proposition I make, rather than an empirical one. However, regardless of its many failures, it is a necessary part of any attempt we make to reduce the prison population, and so reform of the policy sector and the political context of crime control policy development is an absolute must if we are to meet the 30% reduction target set by Minister Little.
Any substantive move to reduce the prison population requires a significant increase in the role of communities, including community-based service providers, in the development and delivery of policies and interventions. The days of the wholesale importation of policies and interventions from other high crime jurisdictions need to be a thing of the past.
Overview of Past Attempts to Review Criminal Justice
By way of background and to add context to my commentary, it is based on 10 years working in the policy sector, the majority spent analysing crime control policy), and some 15 years carrying out research on crime control in settler-colonial jurisdictions.
I will use examples and case studies gleamed from my policy and research experience to a) highlight reasons why we have failed to arrest the rate of imprisonment, to reduce the harm that occurs in our communities, and to eradicate bias and racism within the criminal justice system, and b) evidence my key argument for a significant overhaul of the policy industry and the political classes’ influence on crime control policy, without which any significant reduction in crime, social harm and use of imprisonment is impossible.
Failures and Examples
When I arrived at Corrections in early 2001, the agency was in the process of implementing the Integrated Offender Management (IOM) initiative. Imported more or less wholesale from Canada, IOM was intended to streamline the delivery of prison-based services to inmates to ensure their 'sentence plans' matched their 'criminogenic needs', such as anger management and alcohol and drug dependency.
The importation of IOM provides a case study that encapsulates all that is wrong with the crime control policy sector in New Zealand:
It was evident that senior management was hell-bent in introducing the process, regardless of criticism or dissent: For that reason ‘consultation’ with internal and external stakeholders was superficial, a tick-the-box exercise. I personally attended 3 so-called consultations, and read the reports written thereafter, in each one any criticism or difficult question had been either not included, or re-worded to enable the department of answer from a pre-conceived suite of answers.
The importation exercise involved liberal use of what is most accurately called the orientalisation of the social context with regards the potential impact of the process on Maori. Orientalisation here refers to the tendency of the policy sector to justify importing policies and interventions on the basis that they 'work for African Americans' so will work for other people of colours, like Maori.
The hegemony of policy-based evidence: a few years after the implementation of IOM and its suite of criminogenic interventions, time came for the analysis and release of the first tranche of outcome-based data, meaning the impact of the programmes on recidivism. The results were, to say the least, not what the department had predicted. For some interventions – such as Straight Thinking - Maori who did not attend had lower recidivism rates than those that did. The ‘report’ was suddenly taken from the primary author to be ‘edited’, due to the poor results of the programmes.
The implementation of IOM by Corrections highlights a number of failings across the criminal justice sector that explains its poor record of impacting crime rates, a number of which I will return to throughout this presentation namely that:
The propensity for the sector to rely on importing crime control policies and interventions from other high crime, western jurisdictions.
Retrofitting crime control policies and processes to the New Zealand context without the requisite engagement and research work required to ensure effectiveness and ‘fit’.
An aversion by the major criminal justice agencies to admit mistakes, release information that does not portray them in a good light.
An unwillingness to trust the ‘community’ here to assist in development effective responses to social harm.
Science and Evidence-Based Policy are Not King
The rise of IOM coincided with a revolution within many of the crime control agencies wherein 'science' and 'evidence' became the basis of policy-making, the development of interventions, and allocation of resources. At least that is what the policy sector told itself and the public from the early 2000s onwards.
Quite often this was not the case, with pertinent evidence being totally ignored, or the evidence that suits a predetermined policy outcome favoured over the messy stuff, like evidence that contradicts a Cabinet Minister's pet project, or that highlights the negative impact of government’s social and economic policy.
A recent, classic example of policy implementation that ignored available evidence was the government's decision to introduce boot camps. No firm evidence existed to indicate that this intervention would result in positive outcomes for youth, but it was implemented regardless. Why? Well, there are a number of reasons but in this particular case the answers are 'populist politics' and 'ideology'.
To understand how such a poorly performing crime control intervention could be introduced, you have to ignore the rhetoric that New Zealand's policy sector is apolitical (as in neutral) and that policy decisions are based on scientifically-derived evidence.
This is often not the case in the crime control sector. The introduction of boot camps was purely ideological - of the 'get tough on crime and bring back military-style discipline for those young thugs' type you will often hear in RSA bars; the 'a good thrashing never did me any harm' approach to social policy.
To their credit Ministry of Justice officials provided their Minister with a thorough briefing, one that highlighted the lack of evidence that the intervention would in fact, reduce youth offending. The Minister moved forward with the policy, simply noting that he had “received, but not read the briefing”. Let me repeat that, he had “received but not read” a briefing. I will come back to this ‘attitude’ soon.
I wish to be clear about one thing - sometimes evidence has a significant impact on policy development and implementation. My argument here is sometimes it does not. The policy process can be, and often is, highly political and ideological, with interventions and policies influenced as much by who a Minister was drinking with last week, as it is on independent, empirical evidence. So in this example, this case study, we see the impact on crime control policy, of ideology, of political ideology, of the need to secure votes, resulting in tax payer’s money being squandered on a failed intervention and political decisions being made in the face of overwhelming evidence that contradicts the political and ideological position. But it is not only the political class that is guilty of what is best described as Policy-based Evidence, as opposed to evidence-based policy, which can be defined as:
Crime control policy based on the ideological and theoretical bias of the Policy Industry and politicians.
Strategies for Reducing the Prison Population
In this last section I will set out a number of strategies that will enable Minister Little and his officials to meet their stated target of a 30% reduction in the prison muster. Because of time constraints they are offered in a very simplistic, largely unevidenced manner; that I admit. They are designed to become part of the general discussion occurring right now,
Depoliticise Crime Control Policy
The first strategy I advocate appears on paper the easiest, but in fact is probably the most difficult to implement: we need to put a stop to the impact of political ideology on our response to social harm. We need to depoliticise crime control policy in much the same way Finland has done. We need a cross-party agreement to stop the juvenile nonsense we suffer every three years where politicians try to out macho each other to see who can be the 'toughest on crime', resulting in increases in police (with the usual unrealised promises of a reduction in crime), more prison beds, longer sentences, and so forth. This has been the standard political response to social harm for the best part of three decades: has it made us safer (or, more accurately, to 'feel' safer)? The answer is no. The way forward is to develop a policy process based on the needs of community, and one less concerned with the needs of politicians.
Get Over the Policy Cringe and Empower the Community
Those who work with victims and offenders invariable know what is needed to respond meaningfully to the social issues arising from social harm. We need the policy sector to work with them more directly (and respectfully) as partners to develop effective, socially grounded solutions. In order to do so we need to move away from the policy cringe that too often afflicts the Policy Industry in Wellington. Much like cultural cringe, the policy cringe is based on the erroneous belief that 'things are done better elsewhere', and that successful responses to social harm must be imported from other jurisdictions, usually from jurisdictions with high crime rates! Go figure. So we import crime control policies from other jurisdictions, invariable do little to alter them for the New Zealand context, and then place them over the top of community-centred practise... and watch them crash and burn. the classic example of this process was the importation to New Zealand in the mid-2000s of Multi-Systemic Therapy from the U.S, as` part of the new youth residential programme that was trialed in Hamilton. Officials from a number of agencies, including Te Puni Kokiri stated serious concerns at the suitability of the programme for Maori youth; concerns that were ignored. The result? The programme, and MST especially, was a failure, while at the same time a number of existing home-grown wrap-around, social support programmes for Maori youth, were ignored.
Treatment and Social Support, not Criminalisation and Imprisonment
There is a simple response that will reduce the prison population quickly and enable Minister Little to meet his 30% objective, stop sending people to prison!
Stop arresting people, charging them, sending them to court, sentencing them to imprisonment for victimless crimes, like some drug offences.
Stop sending people to prison who are addicted or mentally unwell – increase significantly our reliance and focus on therapeutic jurisprudence.
And here is a suggestion that will likely anger some, perhaps some of you here – recognise the reality we are dealing with regarding our prison muster – a significant number of them are addicted, are mentally unwell, and many have long histories of trauma – of domestic violence, or sexual victimisation.
To stop them from victimising others, then we need to deal with their trauma, and if you want evidence of the sorts of victimisation and trauma that some of our past and present prison muster are dealing with, then I recommend you read Dr Liz Stanley’s 2016 publication The Road to Hell: State Violence Against Children in Postwar New Zealand.
Alluding to the trauma suffered by offenders is unpopular for some people, and inevitably results in statements that 'you are making excuses for serious crime': no, I am not. I am though highlighting a reality that we need to deal with if we are to create a safer, more just society. By focusing on their trauma of experienced by offenders I am offering one explanation for their behaviour, and not a reason to ignore the harm they cause others.
Let Us In!
The crime control sector needs to let go, it needs to grow up, it needs to stop being so risk adverse, and allow independent researchers like myself and others to undertake critical, independent research.
The principal crime control agencies have for some time now been making it very difficult for independent, critical researchers to scrutinise the performance of the ‘system’.
Oh, I know they will be able to cite a few examples since 2001 where they have allowed PhD students or other researchers 'in' to prisons to do research, for example... research that is likely contracted by the agency or heavily vetted to ensure it serves the needs of the agency, and is unlikely to result in critical findings that might embarrass Corrections, or Police, or Justice, or worse, their Minister.
I am talking about the strategy that the sector appears to be following the past few years of blocking critical research that does not suit agency needs. And it is blocking independent researchers from going about their business, by using excuses like 'the information that will be gathered doesn't match with our trending data' or with 'our strategic priorities', or some similar nonsense. And if that fails Corrections and others can fall back on well-worn excuses such as potential 'safety' issues for both inmates and researchers, or muster issues or whatever else they can think of.
And yet other jurisdictions, most notably the United Kingdom, have in the past had few issues with allowing researchers to enter prisons to carry out their work. The evidence for this is the significant amount (comparatively speaking) of independent research materials published in academic journals on prisons and corrections policies in that and other comparable jurisdictions. The problem in the New Zealand context seems to grow from the intersection- a dangerous combination - of three factors: 1) a policy elite who appear to believe themselves above critique, 2) a policy elite who believe they are not answerable to the public, and 3) who are supported by a political elite who share the same arrogance and aversion to independent scrutiny.
Let me be even more frank, policy workers and government agencies do not always have the answers and, more importantly because they are so close to their own work they often can't see the wood for the trees. In other words it is sometimes very difficult for them to step back and critically analysis the impact or their work or identify the questions that need to be asked and answered by research. Sometimes the questions and topics 'the community', which includes independent researchers, inmates, ex-inmates, inmates and ex-inmates families, victims and service providers, believe are important will not match those of the policy sector; and sometimes the communities questions are the right ones to be asking. Remember, a government agency is part of the public service and derives its resources from the public purse. Therefore, it is time for policy practitioners to stop acting as though they are not answerable to the public.
Bias and Racism
And lastly, specifically on the issue of Maori over-representation in the criminal justice system:
In answer to the oft-heard statement that we Maori should step up and take responsibility of the offending and victimisation that occurs in our communities:
Yes we should, and we already are: from time to time we hear this comment from social commentators, shock jocks and the like, such as Mike Hoskins, Paul Henry, you know when some shocking incident takes place and invariably we hear ‘where are the Maori leaders? Why aren’t they saying anything? Why aren’t Maori doing anything, etc, etc. The ready answer is a) is because they are busy doing the mahi (work), b) you (shock jocks and the like) are not exactly that important to us in terms of reporting what we are doing, c) such commentators appear to never go and find out for themselves what we are doing. I’ve not once heard of them going to say Te Whakaruruhau, Maori women’s refuge in Hamilton to look at their anti-violence work with Maori men in Waikeria Prison, or the numerous other Maori-run entities working with youth and adult offenders and victims, often with far less government financial support per client than mainstream service providers. Such comments are therefore, uninformed and biased.
If you want us to do more then get out of our way: stop putting policy and financial barriers in our way to developing more effective interventions for our own. And while you are doing that, do something about the racism and bias that exists in both the frontline crime control agencies and also in the policy sector. The claim by the Police Commissioner that there is no racism in police, only that some officers have ‘unconscious bias’ is nothing more than a political ruse designed to ignore the truth of racism within the force. The existence of racism and bias in police and other criminal justice institutions in other western jurisdictions is well-evidenced, jurisdictions by the way that we regularly compare ourselves to. What makes the Commissioner and his supporters believe our force is any different? Perhaps it is because they continue to believe in the myth of New Zealand having the best race relations in the world? Bias does exist in our system, and despite the best attempts to block independent research that I spoke of earlier, we do have empirical evidence that demonstrates this, starting with Moana Jackson’s 1988 report, 2 MRL attitudinal surveys in the 1990s, Roguski and Te Whaiti’s Police Perceptions of Maori research published in 2000.
If we Maori are to take up the challenge to do more, as we should, then just as importantly, crime control institutions and the policy sector in New Zealand need to be more open and honest about the bias and racism that exists in our institutions and do something concrete about these issues. And if they do, perhaps then, together, we can change the landscape of criminal justice in this country, and Minister Little can not only meet his 30% target, one that becomes sustainable over time.