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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