Reducing Our Prison Population - Past Failures and New Approaches

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:

Introduction

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.

PART I

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.

PART II

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.

Is New Zealand's Policy Sector 'Evidence-Based'? Part 1

A Story of Deceit and Manipulation

In the early 2000s I made a career decision that appeared at the time to be a monumental failure; I decided to leave the relative safety of Te Puni Kokiri (New Zealand's Ministry of Maori Development (see footnote)  to take a position at the Department of Corrections.

Within about 2 years I realised that the move had been highly beneficial to my development as a critic of crime control policy.  I lasted all of 6 months before deciding to return to Te Puni Kokiri; not a long time to work in a policy position, but enough to provide me with some invaluable insights into the workings of the criminal justice policy sector. What follows are some of the insights I learnt during my short 'sentence' at Corrections, many of which hold true for all crime control agencies in New Zealand:

The worst way to run a government agency

... was the 'model' used at Corrections at the time, which was to set the General Managers of the various sections (Policy, Community Corrections, Psych Services, Public Prisons, etc) against each other so they competed for the agency's limited resources, and for the attention of the CEO.  The rationale behind this management style seemed to be the belief that the ensuing competition would result in enhanced quality of output.... which showed the genius who implemented this style knew little about human nature. The situation this strategy engendered at Corrections was frankly bizarre as time and again I observed supposedly adult, experienced public servants stabbing each other in the back, engaging in petty, immature turf wars and killing off well constructed projects in order to protect their own interests.  All of this experience was fantastic training..... for being a kindergarten teacher, but did little to engender collegiality or the development of effective penal policy (whatever that is).  To be fair to Corrections though, the management process in place at the time was simply a mirror image of the way in which the crime control sector engaged with each other, as I soon learnt during my involvement in inter-agency programmes such as Effective Interventions that began in the mid-2000s.

Iconoclast's will not be tolerated

Speaking 'against the grain' or taking the position of the devil's advocate was not acceptable.  When I arrived at Corrections the agency was in the process of implementing the Integrated Offender Management (IOM) initiative.  Imported more or less whole 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.  In order to 'sell' the programme within and outside the agency, a whole tier of marketing practitioners were identified, called (and I am not making this up) 'IOM Champions'.  The key task of the 'Champions' was to market IOM, and one way they sought to do so was to hold information sessions with staff.  These sessions encouraged 'full and frank' discussion on the nature and impact of IOM, or so we were told. Before attending staff were assured they could ask critical questions or make critical statements, and that anything they said would be treated confidentially. 

In my first week on the job I attended one such session, during which my manager asked what I thought was an important question: 'how do we know IOM will work for Maori, when no engagement has been held with Maori - not with Maori members of staff, Maori service providers, and especially not Maori inmates/offenders'. The answer?  He didn't get one. The response?  The IOM 'Champion' reported him to the General Manger who proceeded to tear strips off him for daring to criticise IOM and thereby setting a bad example for his staff. Needless to say I decided after that not to attend any more sessions or to tell other staff what I actually thought of the policy.  

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.  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, you know.... the evidence contradicts a Cabinet Minister's pet project (see Tauri, 2009 for a discussion of this process).

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 always 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. 

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.           

Ritual and myth are king

... and when empirical evidence is NOT highly influential in policy making, I observed that other strategies came to the fore, including the liberal use of ritual to maintain the sacred myths of the public service, namely the myth of political neutrality and the myth of evidence-based policy.  In Part 2 I will focus on the rituals utilised by the policy sector to sustain these myths, including the rituals of (in)activity, rituals of deception and cherry-picking rituals; watch this space (in the meantime see Tauri, 2014).

Postscript - When is an Academic Journal NOT an Academic Journal?

The answer? When it is set up and run by a government agency.  

Mildly related to the previous discussion was an announcement made in 2013 of the publication of a new academic journal called Practice: The New Zealand Corrections Journal.  I thought 'excellent, finally the New Zealand academy is getting off its butt and doing something to enhance critical crime control scholarship in this country'..... sadly I was wrong on all counts.

  

No doubt we've all heard the saying 'if it looks like a duck, walks like a duck and quacks like a duck, then it must be a duck'? Well the Department of Corrections 'journal' defies that lovely bit of logic. It 'looks' like a journal and when you hold it in your hot hands if even 'feels' like a journal, but sadly it quacks like an ACT Party candidate talking about being 'tough on crime' during an Epsom constituency meeting.  

Let me be clear on one thing, government agencies have every right to publicise their work; in fact they have an obligation to do so. We as taxpayers have a right to know how they are spending our money... just don't expect them to tell you if it is not effective as that pertinent point is usually ignored completely.  They have a right to publish the material in whatever form their over-priced 'marketing' experts tell them will most effectively spread the gospel.

However, they do not have the right to treat us as if we are stupid, and in marketing their rag as a 'journal' that is exactly what Corrections is doing.  However, I do have to take my hat off to the department, the 'journal' represents a wonderful piece of conjuring worthy of a Las Vegas magic show: take the marketing, publicity and policy materials produced by the agency and its 'academic' friends (meaning those academics who produce work in line with the ideological and theoretical position of the agency) and publish it in journal form.  So far, this is exactly what we are being served up by Corrections.  The vast majority of the articles are written by Corrections functionaries, and few of the articles engage with critical questions being posited by independent academics or report on research using methodologies that allow the voices of those most impacted by corrections policies to be heard.  And most importantly, the editorship, and therefore the article selection process, is overseen by a high level functionary within Correction; hardly a recipe for ensuring that independent, critical scholarship will make the pages of the 'journal'.

It is easy to figure out why the agency has gone down this route: through the 'journal' it is seeking to give its marketing material more of an 'academic' look and feel in order, hopefully, to enhance its credibility on the intellectual market.  But one word of advice to the editor: you will be judged primarily on the content of the articles you publish and hardly at all on whether the 'look' of your magazine matches closely with academic journals such as Punishment or Criminology.

I think the idea of an academic journal like Practice is a good one.  In fact, given the paucity of academic scholarship on crime control in New Zealand I would like to see its name and focus changed to Criminal Justice or something similar.  But having done that you will need to make it more independent.  So why not turn it into a joint venture by running it through an editorial board made up of both academics and policy workers, with two Chief Editors, one from policy and one independent to ensure it doesn't become a mouth piece for your agency.  Or you could align it with an academic institution that has a criminology focus, such as AUT, University of Auckland, Victoria University or the University of Canterbury. It would also be a good idea to mix the content; a few articles from the policy sector, a few from independent researchers.  Then, and maybe then, you can call your magazine a 'journal'. However, in order to achieve all this you need to change your attitude to independent research... you need to allow it to occur.  

Oh, I know you will be able to cite a few examples since 2001 where you allowed PhD students or other researchers 'in' to prisons to do research... 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 worse, its Minister. I am talking about the strategy that Corrections appears to be following the past few years of blocking critical research that does not suit the agency's 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 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, has 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 created 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 and service providers, believes 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.

Oh, and it would be a good idea if they stopped treating us as though we are stupid: Corrections, change the name of your publication to The Corrections Quarterly or perhaps even more suitable, CQ, or something similar that reflects that it is in fact a magazine, because we are not being fooled in the slightest.    

Footnote
I have often thought that the Ministry of Maori Development (emphasis on the 'development' bit) was a weird name for an agency with a budget at that time of around 23 million, and that was often severely hamstrung by Cabinet and core agencies such as Treasury, SSC, Ministry of Social Development, etc, those with comparatively massive budgets and significantly more political capital, from actually doing anything concrete to facilitate 'Maori development'.

References
Tauri, J (2009) The Maori Social Science Academy and Evidence-Based Policy, MAI Review, 1: 1-11. 
Tauri, J (2014) Ritual and the Social Dynamics of Policy Making in New Zealand, in P.Howland (ed.) Ritual in Aotearoa New Zealand: An Effusive Introduction (forthcoming - draft available on Academia).  

Critiquing Arguments Against Extending the Jurisdiction of Indigenous Law

The following post is not written in the 'academic style', just notes I use when discussing with students in my Indigenous Justice unit at Queensland University of Technology, arguments for and against extending the use of 'customary law', or what I prefer to call Indigenous Law.  My apologies to colleagues if I haven't referenced as per the academic convention (as long as I've presented our ideas accurately!).  Nor have I rewritten the piece to correct grammar, etc; instead it is written very much how it is spoken in class; in general, not specific terms. I've simply uploaded the notes as prepared for the lecture; in other words posted 'as is' in order to contribute to debate on this issue:

A Few Comments on Customary Law to my QUT Indigenous Justice Students

For JSB381 students to consider:

The term customary law: is something that should give you all pause to think; why is it that any other ‘law’ besides European (British) law is often described as ‘customary’? 

This is an issue within ‘law’ and justice that has been pondered by great Indigenous theorists, jurist and thinkers.  For example, the great Nigerian Criminologist, Biko Agozino refers to this type of ‘reasoning’ – that all European law is ‘the law’ while all others are ‘customary’ - as a continuation of the Imperialist Reasoning used to legitimise the colonisation of Indigenous peoples and the imposition of European legal jurisdiction over subjugated peoples.

The Maori jurist, Moana Jackson, goes a little further, describing this kind of representation of Indigenous law as being based upon racist assumptions of the superiority of Eurocentric law, and the baseness of the law of coloured folk; of its inherent weakness due to its not being written, codified or institutionalised.  Building on the work of the legal Anthropologist Fitzgerald, who wrote about the mythology of law, we might describe these assumptions as forming the Great White Myth of Law, one based on the racist assumption of the inherent superiority of ‘White Ways’ due to a related belief that the legal system we now practice in Settler Societies is the end point of legal evolution; that is it the ‘best way’ of 'doing law and seeking justice'.

Let us take a moment to consider and dissect these notions:

1.    That Indigenous law was not codified: we are able to demonstrate that this is pure myth; at the time of colonisation, Europeans were writing of the codified laws of the Dine (Navajo), and of the six Nations of the Iroquois peoples who straddled what is now the Eastern US/Canadian border, and who’s Confederation the founding fathers of the American constitution and the Republic, actually based that constitution upon (at least in part). 

2.  The myth of codification is based on an assumption that Indigenous law is inherently weak(er) than White Law because it was not written down; it was practiced and hand down thru generations orally.  And yet we have 19^th and 20^th century European Anthropologists recording and reporting the sophisticated, orally derived legal processes of numerous First Nations; of Tohunga, legal specialists trained in linking genealogy with ‘cases’ that demonstrate precedence and an evolving jurisdiction, the supposed hallmark of the superior, codified Western European law.

3.   Indigenous law is inferior because it is based in the distant past: things have changed, so therefore it is not applicable to the contemporary moment: and yet we see in Africa, over the past 2 decades, more and more jurisdictional autonomy being given to First Nations in various countries, to mould a contemporary justice system based on ‘ancient’ philosophies and practices, carried out via resurrected, localised justice institutions.  We see in New Zealand over the same period (in a small number of largely rural areas), the resurrection of communal, marae-based justice processes, based on tikanga (think about Aroha Terry's marae-based justice process for dealing with sexual offending, practiced in the Waikato region in the 1990s onwards), blended with contemporary notions and practices of human rights, which yet again highlights the racism inherent in the assumption that Indigenous justice and cultural is incapable of ‘evolving and changing’, and incapable of being applicable to the modern world. 

      If this were so, then how do we explain the movement amongst Western, European jurisdictions to adopt so many of our justice philosophies and practices; FGC’s, Circles, significant elements of what they call restorative justice, etc?  It is evident that continued moves by existing legal institutions, law makers, politicians and the like, to block the extension of jurisdictional autonomy to First Nations, has little to do with the inherent weakness of Indigenous law, or the inability of our peoples and culture to ‘evolve’, but instead has everything to do with maintaining the status quo, namely the hegemony of their way of law.

4.   So, let's look closely at the law and legal institutions of contemporary Settler States:  does the fact that it is written (in fact almost all contemporary Indigenous justice processes are now written and codified, yet again underlining the myth of our inability to grow and adapt), that it is codified and institutionalised make it inherently more just than Indigenous justice?  If your answer is yes, then think about the growing numbers of exonerations being passed down in American, Canadian, New Zealand jurisdictions, and becoming a not so rare feature of Australian jurisdictions: decisions that come about, in the main (or in part, depending on your ideological persuasion!), because of judicial and police racism, classism and sexism.  Think about the racist laws passed (or the laws and powers used in racist ways) that drive people of colour in to the system, or drive them ever deeper into it; e.g. the anti-drug laws of America, search and seizure laws in Great Britain targeting black youth, ‘move on’ and search laws in Australia, the NTER, and so on.  Think about the massive amount of research evidence gathered by white criminologists and Indigenous researchers on the failings of our legal system; of its class, race and gender bias, of the myriad unjust sentences/decisions, and of the inhumanity of our correctional regimes….. consider all this body of evidence and think twice about arguing, as some do here in Australia, that Indigenous justice should not be promoted or extended because it promotes/supports child rape, violence against women, and is founded on archaic, inhumane punishments.

5.   On the argument of the violence of Indigenous justice: we often hear or read non-Indigenous commentators saying that ‘customary law’ supports violence, that it is inhumane – let us be frank, in times past our responses to social harm were by today’s standards, ‘inhumane’, but as previously discussed, this presupposes that those same penalties will be employed in a contemporary, reconstituted Indigenous legal system.  In others words, those espousing such views are falling back on the tired, racist assumptions about our inability to change with the times.  And with all the injustice and inhumanity practiced in Western jurisdictions, as stated previously, can anyone truly argue that the contemporary system is always just and humane? 

 

Lastly, on the argument that Indigenous law supports violence against women and children, we have no evidence to that effect so we can’t argue definitively either way on this matter: unfortunately, what we most definitely have is evidence that western influences have permeated some Indigenous communities, re: ‘imported’ notions and practices of gender and familial relations, power and authority, that have framed ‘institutionalised’ violence within our communities (and yes, a trend we must acknowledge, own and respond to ourselves).

Criminologists Behaving Badly

The following blog focuses on two related topics resulting from attending the Australian, New Zealand Society of Criminology conference, held at University of Auckland (jointly with AUT University of Auckland), from 27-30 November, 2012.  

Part 1 offers a brief summary of the Maori-focused papers presented at the conference, while Part 2, titled When Criminologists Behave Badly, provides commentary on some of the bizarre behaviour exhibited by senior members of the Academy in response to the Maori-centric presentations.

Part 1 - Maori focused papers.

A couple of things stuck out about this years ANZSOC conference; 1) unsurprisingly (given it was held in New Zealand) a decent number of papers focused on Maori perspectives were offered, and 2) all of said papers either spoke directly from the Maori perspective (by using 'engaging methodologies'), or (if delivered by a non-Maori  presenter) took a 'critical' view of issues of importance to Maori.  This situation was a distinct improvement on the trend evident at past ANZSOC's where the greater majority of 'Aboriginal papers' were delivered by non-Indigenous scholars utilising non-engaging methods while largely ignoring Indigenous-generated theorising, empirical evidence and literature (the specific session on 'Aboriginal issues' at the 2011 conference in Geelong a recent, classic example). 

In all, 8 papers were offered that privileged the Maori voice and experience of criminal justice issues.  The following section provides some brief comments on each paper; I will make available longer commentaries sometime early in the New Year:

Moana Jackson (Keynote speech): Taking the 'Crim' out of Criminology: Towards an Indigenous Causation Theory.  Moana's key points related to the weaknesses of Eurocentric criminology, in particular its lack of focus on the historical drivers of Indigenous marginalisation and the part this plays in over-representation, and the power of Indigenous theories and responses  to social harm, based on the (re)building of relationships, using a theory of relational distance to analyse and explain incidents of social harm, and why the state and criminology's responses are often ineffective.

Terikirangi Miheare (Victoria University of Wellington): The Misappropriation of Maori Culture in Prison.  A beautifully presented paper; started off with a gentle meander through the recent history of Corrections use of Maori culture to sell itself as 'culturally responsive', and ended with a devastating critique that demonstrated that the Departments so-called 'tikanga programmes' are little more than a misappropriation of Maori culture in pursuit of policy/political legitimation.  

Kristen Maynard: Ruru Parirau: The Power of Stereotypes and Potential Implications for Justice Policy and Practice.  This excellent presentation focused on the negative impact that stereotypes of Maori amongst policy workers is having on the development of effective policies and interventions.  Kristen used a recent example where she and her colleagues purposefully challenged stereotypes of Maori and alcohol to develop an effective policy programme aimed at minimising harm from alcohol consumption.  This paper provided a nice policy-in action case study to supplement the more 'theoretical/political/ideological' focus of other papers presented at the conference.

Antje Deckert (AUT University):  Neo-Colonial Criminology: Decolonising Research Methods and Discourse. Antje's paper was based on preliminary findings from analysis of the types of methods used by criminologists who publish journal articles on Indigenous people: her conclusion so far: about 75% don't bother to talk to Indigenous peoples directly, preferring instead to use silencing methodologies.  Interesting, one criminologist who attended this session seemed to think this was unfair as it implied that any criminologist who didn't write about Indigenous issues was therefore guilty of silencing, which is weird given that this has no bearing on the focus of the paper as was clearly stated by the presenter during her talk.

Juan Tauri (Queensland University of Technology): 'If You're so Good, Why is Your Policy so Bad?' A Critical Indigenous Appraisal of New Zealand's Crime Control Industry.  My perspectives on the poor quality of NZ policy making is well documented elsewhere :-)

Robert Webb (AUT University): Maori Offending: A Critical Analysis.  Rob's paper took us through the recent history of policy making in New Zealand and Maori in the criminal justice system, and how this has resulted in individualistic, poorly crafted interventions.  Anyone wanting to read his perspective simply type in Robert Webb, Maori and crime into google - there are at least 2 papers readily available on line. 

Tracey McIntosh (University of Auckland): Rethinking Over-representation: Maori and Confinement. This paper provided a Maori/offender informed critique of issues with correctional policy making with regards Maori (especially Maori women).  

Kim Workman Maori over-representation in the criminal justice system: the police response.  In this paper Kim decided to focus on policing and Maori issues.  Starting with an overview of research that evidences the drivers for the poor relations between Maori and the police, Kim then highlighted some of the genuine attempts by police to improve the situation (for example, Liaison Officers), but finished by highlighting that the recent Tuhoe incident and statements that no bias exists in police in NZ demonstrate that we still have work to do in this area. 

Part 2 - Criminologists Behaving Badly

A summary of the ANZSOC 2012 experience wouldn't be complete without commnetary on the behaviour of a small group of (prominent) Criminologists towards Indigenous issues (in general ) and a small group of Indigenous speakers (specifically). My reasons for mentioning these issues are 1) to educate these people about how to act respectfully when engaging with people they disagree with regardless of ethnicity, and 2) to forewarn our post-graduates about the types of people, attitudes and behaviour they are likely to experience as they go about their work as Indigenous scholars.

Overall, the majority of participants appeared receptive to the issues raised by Maori/non-Maori scholars who attempted to bring Maori perspectives into the conference; even if they did not fully agree with the perspectives they brought to the table.  Unfortunately, a small group of scholars offered the sad, old style of engagement reminiscent of the colonial era.  This generally entails talking about Indigenous issues while lacking detailed knowledge of the Indigenous context, Indigenous theory, research, literature, and socio-cultural/political context.  This same group appeared to believe that the conventions regarding respectful conduct towards other delegates did not apply to them, something that was especially evident when Indigenous delegates presented their papers.  Here is a small number of 'case studies' from the conference that illustrate these issues:

1. The 'I know bugger all, but I'll make an expert comment anyway' Criminologist

This is one of my favourite 'criminological types' who  frequent criminology conferences.  This sub-species is more often than not white, middle class and male; academics who have spent little time researching with First Nations, but who might have written a paper (or 2) sometime in the distant past about Aboriginal people (extensively panned by critics).  These individuals enjoy 'putting the natives right' about their past and current social context, but react badly to any critique of their perspective, especially if it comes from said natives.  

A classic example of the boorish behaviour of this 'type' occurred during the Post-Graduate day: In a presentation on comparisons of Romani and Maori youth and criminal justice, one criminologist began his poorly evidenced rhetoric by stating "I don't really no much about Maori and New Zealand'... but continued, regardless, to argue that because Maori have parliamentary representation they cannot be viewed as 'marginalised', or not as marginalised as other Indigenous/marginalised peoples (as though there is some sort of international league table of Indigenous marginalisation).  Now, if this statement had been framed as a question regarding empirical issues relating to problems with comparing one group to another, and across jurisdictions there wouldn't have been much of a problem.  Sadly, this was not the case, as the commentator chose  instead to offer it as a statement that they clearly did not expect a response to.  It was delivered with the 'perspective of an expert'; presented as an incontestable statement on the current situation of Maori in the New Zealand context.  This situation is highly problematic both in terms of the accuracy of the statement offered by said Criminologist, and their expectation that the statement was beyond comment.  I responded anyway, stating that it was simplistic to equate political representation with empowerment, and that because of this, Maori cannot be considered as marginalised as other social groups.  This kind of representation is simplistic because it is contradicted by plenty of 'empirical evidence' that political representation does not automatically = significant impact on or over the development of policy and legislation: simplistic because the statement demonstrates a lack of meaningful engagement with material on the contemporary social context in which Maori live.  Unfortunately, this particular commentator was simply replicating the same misinformed perspective that is offered on a regular basis in New Zealand by non-Indigenous scholars, policy workers and talk-back radio hosts.  

The speakers responded later that evening by accusing me of playing the 'Race Card' (a claim they repeated to my boss the next day).  I interpreted this to mean one of two things, either a) I had disempowered him by talking as an Indigenous person (can't really help that!) or b) I had unfairly lumped him in with other ignorant non-Indigenous commentators, which was true, but impossible to avoid given the poor quality of his statement.  As usual, this individual gave me little chance to respond as he simply walked away after making his allegation.  If he had stuck around and engaged with me as he should have, I would have politely but firmly told him that we had both played the Race Card, me when I spoke as an Indigenous person in response to his uninformed comment, and he when he chose to speak with authority on the 'Maori situation', despite his own admission that he knew very little about either Maori or the New Zealand context.  Hopefully in future this individual will consider their ignorance of such matters, and think a bit more before privileging their own voice in this way.  I am also hoping that in future they learn to cease such puerile behaviour as falling back on the use of allegations such as 'the Race Card' against their detractors, and instead choose to debate the issues directly with us.  

The same individual confirmed both their ignorance of Indigenous issues and arrogance in thinking they can talk regardless when he asked Moana Jackson if he had "Any evidence to back anything he said" during this keeynote speech.  The ignorance/arrogance of this question is highlighted by the fact that plenty of evidence exists to back all aspects of Moana's talk, whether related to his argument for socio-cultural genocide of First Nations (truckloads), his contention that First Nations had their own law and 'justice' processes (shitloads), and that these processes are applicable to some/all Indigenous peoples today and will likely work better for us (a small amount and growing).  I would expect this experienced Criminologist, who enjoys commenting on  Indigenous issues with regularity, to have engaged with this material.  Unfortunately, the tone and nature of his question hints that he hasn't, to which only 2 explanations are possible (in my view of course): 1) he hasn't engaged, which does not require further comment, or 2) he knows it exists but because the material is generated by Indigenous people it is 'probably unscientific, and therefore invalid and easily dismissed'.  Either way, all he did was underline the reputation of this particular sub-species of Criminologist, universally ignorant of First Nation perspectives, but all too willing to 'tell the natives how it is' regardless of their lack of knowledge of the Indigenous world. 

2. The 'conventions of right, ethical behaviour don't apply to me' Criminologist

A number of incidents highlighted that certain Criminologists think themselves above all others when it comes to respectful behaviour towards participants.  Unfortunately, and whether by design or not, these incidents occurred too often when Maori delegates were presenting:

a) to the senior Criminologist who walked down about 12 rows, in front of Moana Jackson as he delivered his keynote speech and thrust the microphone in his face; this is rude and obnoxious to Maori and non-Maori alike: instead of being rude, simply ask for something to be done, or sit closer to a speaker!  Next time you behave this way you will be told in no uncertain terms that your behaviour is offensive... in front of 180 other criminologists :-)

b) to the same person and a colleague who talked, moaned and bitched through the entire session on Maori perspectives, and who's ill-informed, prejudiced comments could be heard by those around them; if you can't handle different perspectives to yours being aired, especially by Indigenous peoples, and you actually believe it's ok to behave in such an unprofessional manner, perhaps you shouldn't come to our sessions?  You'll probably have more fun talking to each other anyway.  

To both individuals concerned I present my third and last 'Bullsh*t Artist of the Week' award for 2012.

Cheers and a happy New Year to you all :-)