Critical Maori commentators have long expressed
concerns about the over-representation of their people in the criminal justice
system, and especially of the way(s) in which the agencies and agents of social
control scrutinise and control Maori individuals, families and communities (see
Jackson, 1988; Tauri, 1996 and Walker, 1990).
These concerns began to be articulated forcefully during the rise of the
‘Maori radical’ movement of the early to mid-1970s, when the police and other
agents of social control were critically scrutinised for the criminalising
impact of their operations (Poata-Smith, 1996).
Despite these concerns, there is a distinct lack of independent,
empirical research and commentary on Maori interaction with the agents of crime
control in this jurisdiction. This is
true not only of Maori commentators, but indeed for almost all academic criminologists in New Zealand (for exceptions see
Bull, 2001, Jackson, 1988; McIntosh and Webb, 2003). And so it is with this in mind that we should
all welcome Gary Raumati Hook’s foray into the murky world of crime control
policy.
In comparison to the other settler societies of
Australia, Canada and the U.S, the lack of interest by criminologists in analysing
Maori engagement with the agencies of crime control is perhaps the defining, negative characteristic of
academic, criminological scholarship in our jurisdiction. This peculiarity is somewhat puzzling when
you consider that the statistical characteristics of crime and criminality in New
Zealand is similar to most other Western jurisdictions, namely that the
majority of recorded crime is committed by young men (aged 15 to 35 years) from
working class backgrounds, and that ethnic minorities, especially Indigenous
peoples, are significantly over-represented. Despite the fact that Maori over-representation
in the criminal has been a statistical ‘fact’ for nearly thirty years, there
has been very little attention paid to the issue by policy makers and academics
since the release of Moana Jackson’s 1988 report, He Whaipaanga Hou. The one
significant exception to this rule, in terms of government-sponsored research,
is the Ministry of Social Development’s 2006 research report From Wannabes to Youth Offenders: Youth
Gangs in Counties Manukau. Or, more
accurately, the exemplary research carried out by Mike Roguski and reflected in
his draft report, as opposed to the departmental document that appears on the
Ministry’s website.
From a governmental perspective, a
counter-argument to my thesis would go something like this: over the past ten
years government agencies have generated a vast amount of documents focused
wholly or partly on the Maori over-representation problem. These documents range from Cabinet papers (for
example, the joint Ministry of Justice/Te Puni Kokiri paper Effective Interventions Package: Programme
of Action for Maori, produced in 2007), research reports (for example, the
Department of Corrections paper Over-representation
of Maori in the Criminal Justice System: An Exploratory Report (2008)), and
high level strategies, such as the Ministry of Justice-led Crime Reduction Strategy and Youth
Offending Strategy, both released in 2002, the Effective Interventions work
programme (2006), and the evolving Drivers
of Crime policy initiative. All this
‘strategic’ activity is underpinned by the large number of ministerial
briefings and updates that invariably contain a section dedicated to ‘Maori
issues’ that is usually no more than two paragraphs long. One defining characteristic of all this
activity becomes apparent when it is scrutinised with an independent, critical
eye: none of the vast amount of documents, policies and strategies deal with
what we know, anecdotally, if not
empirically, to be a key driver of Maori over-representation, namely the actions
of the Policy Industry and the agents of crime control (see Tauri, 2009).
This brings me to the two articles by Raumati
Hook that appeared in the MAI Review journal in 2009, called The Criminalisation of Maori and Pacific
Islanders under the Domestic Violence Act 1995, and The Potential Influence of Legislation in the Criminality of Maori and
Pacific Islanders in New Zealand. What
is most pleasing about this work is the heavy focus on the activities of the
Policy Industry, in particular the intersection between legislation and the
activities of crime control agents like the judiciary. It is the intersection between the various
components of the crime control process that is long overdue for meaningful,
sustained scrutiny by members of the Maori academy (Tauri, 2009). It is pleasing to see another member of the
Maori Academy undertaking critical analysis Maori issues with the criminal
justice system and the activities of the Policy Industry, as it is becoming increasingly
obvious that members of New Zealand’s criminological community are either
incapable of, or disinterested in, directly critiquing the policy-making
process (for exceptions to this rule see Bradley, 2005 and Newbold, 2008).
Raumati
Hook’s thesis
One of the
most interesting statements made by Raumati Hook is “[c]ould the 1997 18-fold
higher propensity of the court to impose custodial sentences on Maori versus
Pakeha for domestic violence violations be attributed to a major bias against
Maori within the court system itself?” A
criminal justice official is likely to respond to this statement by citing the
lack of scientific, empirical evidence that bias exists in the New Zealand
jurisdiction. And the official would be
correct to describe the evidentiary record of the operations of New Zealand
criminal justice system in this way.
However, such a statement is rendered somewhat meaningless when we consider
that not since Jackson’s 1988 report has the Policy Industry in New Zealand
carried out or directly supported, independent, critical research on the issue
of bias. Indeed, key justice agencies
have a long history of actively discouraging external, critical observations of
the sectors activities (Tauri, 2009). A
criminal justice official might also respond to the assertion that bias has
something to do with Maori over-representation by arguing that the high number
of Maori receiving custodial sentences is largely due to a combination of a)
the severity of the offence for which people appear in court, and b) the prior
offending histories of defendants, and not because of the biased operations of
court officials. Through these types of
responses criminal justice officials seek to counter accusations of bias by
emphasising the fact that Maori commit violent acts at much higher levels than
anyone else, hence their over-representation crime statistics. The reluctance of the criminal justice sector
to critically examine its role in facilitating minority over-representation,
and focus instead on the criminal antecedents of minority populations,
underlines the importance of the critical observations made by Raumati Hook in
the papers published in MAI Review. His
critical analysis serves to demonstrate how incomplete and self-promoting the
Policy Industry’s formulated responses are to any critical scrutiny of its
operations.
There are a
small number of key themes or statements running through the Raumati Hook papers,
namely that 1) Maori and Pacific peoples are overrepresented in criminal
justice statistics, 2) differential outcomes at the point of sentencing means
the system “must be viewed with a degree of suspicion”, and 3) that “data
suggest[s] that either Maori and Pacific Islanders are much more violent than
Pakeha (Europeans), or there is bias
against Maori and Pacific Islanders within the judiciary and police systems of
New Zealand” (emphasis mine). These
statements are based on analysis of existing data on apprehensions and
convictions for domestic violence. The
statistics presented in Raumati Hooks’ papers undoubtedly make for disturbing
reading, and he does a thorough job of demonstrating empirically the extent of
the problem. However, things become shaky
when he begins to speculate on the drivers
of statistical over-representation, and the differentials in sentencing of Maori
compared to non-Maori offenders.
Both papers
contain a number of speculative questions about what might be causing the
significant disproportion of Maori receiving custodial sentences, and appearing
in court in the first instance. The
papers would have been strengthened had the author extended his analysis to examine
these speculative questions with reference to existing national and
international literature on bias in the criminal justice system. It may appear a little unfair to focus on
what Raumati Hook has not included in
his papers, but in this instance it is difficult to avoid this kind of
scrutiny. This is because reference to
the small amount of empirical evidence on bias in the New Zealand context (see
Bradley, Tauri and Walters, 2005; Ferguson, 1993 and Jackson, 1988) and the
vast amount of international research on bias and ethnic minorities (see
Carrington and Schulenberg, 2004; Denny; Ellis and Barn (2006); Ontario Human
Rights Commission, 2005 and Weich and Angulo, 2001), would have greatly
strengthened the analysis and conclusions.
Utilising this body of work would have enabled the arguments contained
in the papers to move beyond speculative questions about the possibility of bias, towards piercing
statements about the prejudicial, biased reality that Maori confront every day
when dealing with the criminal justice system.
Perhaps this is one of the dangers of relying primarily on statistical analysis as the basis for
analysing complex issues like the causes of crime and complex institutions like
the criminal justice system and the Policy Industry.
Throughout his work, Raumati Hook utilises a dichotomous
approach to analyse the significant over-representation of Maori and Pacific
peoples in domestic violence statistics.
We are told that these statistics are the result either of our propensity
for using violence to settle interpersonal disputes, or courtroom bias: If only it were that simple. As many criminologists have demonstrated over
the years, crime is a complex phenomenon (see Hart, 1998; Henry and Lanier,
2001). While there are significant
variations in theoretical perspective, most administrative and critical criminologists at least agree on that particular point. Raumati Hook himself acknowledges this
complexity when he states that “[a]nalysis of complex social forces is
permeated with difficulties. The factors
that influence the conviction rates… are probably a complex mixture of
legislation, attitudes, assumptions, biases, perceptions..:.”. This is followed by the observation that “[f]ew
of these can be measured reliably”. I
agree, and yet it is these ‘hard to measure things’ that most likely explain
the role of the Policy Industry in the criminalisation of Maori (Tauri, 2009). Neither the extent nor nature of the violence
occurring in our communities, nor the apparent differentials apprehension,
conviction and sentencing statistics, can be explained via an either/or dichotomous construct.
In the case of apparent disparities in
sentencing of Maori males for domestic violence-related offences, it is just
possible that both of Raumati Hooks
‘drivers’ are leading causes of over-representation: meaning that we are both
more violent (in comparison to other ethnicities) and treated with prejudice b agents of crime control. Statistical analysis alone will not enable us
to uncover bias on the part of court officials, no matter what the quantitative
methodologist might say. Statistical
analysis tells us little about the mind-set, prejudices and lived experiences
of judges. Statistics and surveys might
play a part in an in-depth analysis of judicial practice, but any attempt to
expose the nuances of prejudice, bias and racism within the criminal justice
system requires detailed, lengthy observation of the operations of the court
and engagement with the experiences of offenders and victims. Furthermore, any attempt to examine Maori
experiences of the criminal justice system must begin with a critical
examination of how they ended up there in the first place. We must first look at the processes through
which Maori are policed and end up in court.
But before that we must critically analyse the way in which the Policy Industry
goes about its business, and before that we must scrutinise the process through
which Cabinet directs the development of policy and legislation.
Yes, crime and criminalisation processes are
indeed complex phenomenon, but at least with the intervention of Raumati Hook’s
and the questions he asks, and hopefully in time the involvement of more of the
Maori academy, we will begin to better understand the role the agents of crime
control play in constructing the apparent differentials in sentencing outcomes
for Maori, as well as their significant over-representation in all phases of
the criminal justice system in New Zealand.
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