Community Research Webinar: Challenges and Opportunites for addressing inequities of the NZ justice system

https://www.youtube.com/watch?v=p_bGsga9eaI&t=125

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.

A Commentary on the Stage Management of Policy Consultation and Policy Development

Background

Right now the Australian Federal Government is working towards a possible referendum on the recognition of Aboriginal and Torres Strait Island peoples in the Australian constitution. As part of this process on Monday 6 July the Prime Minister and Leader of the Opposition and other government officials met with 40 Indigenous leaders in Sydney.  The purpose of the meeting, according to government officials, was to map the way forward for developing a referendum.

After the meeting, government spokespeople described it as a "great success', while Noel Pearson, a prominent Indigenous leader from North Queensland described it as "stage managed", with the Prime Minister and Leader of the Opposition having 'already decided on how the development of the referendum would proceed'.  The implication being, that the meeting was stage managed to give a predetermined process a cloak of respectability via the appearance, but not the substance, of meaningful Indigenous input.

Let me begin by saying that both 'sides' are right: the fact that 40 Indigenous leaders turned up and provided the Prime Minister plenty of photo ops, that the agenda was likely set by government officials, and that it afforded government the opportunity to ensure discussion was dominated by its preconceived process, ensured it was a "great success" from a governmental perspective. Given that stage managing consultation exercises is a key role for officials, means that Mr Pearson's description of the process is also accurate. 

Before I expand on the issue of stage management let me make one obvious point, which is that consultation exercises run on government officials are always stage managed, especially if the exercise involves senior government officials, such as the Chief Executive of an agency, a cabinet minister, or the Prime Minister. There is no way that officials in charge of organising an event such as the one that took place in Sydney would allow it to evolve so that Indigenous participants gained a significant measure of control over the agenda, dominated discussion, or to set the agenda for the process 'going forward'. The first principle that guides officials when organising such an event is to manage risk, in particular the risk that senior officials, Cabinet Ministers, and especially Prime Ministers will be embarrassed by dissension, or by exposing their prejudice and ignorance.  And you must at all costs manage the risk that the policies or processes preferred by the external participants wins out over the preconceived plans of government.

Case Study

I wasn't at the meeting held on 6 July, but I'm guessing that government officials put a lot of time and effort into managing the risk to government. However, I have been involved in a number of similar events through my ten years working in New Zealand's policy sector; events that can be offered as case studies in how officials go about stage managing such events. The event I've selected for this discussion was a consultation event organised by New Zealand's Ministry of Justice in 2009 to advance the development of the new Drivers of Crime work programme, an inter-agency policy project that took over from the defunct Effective Interventions programme..... the substantive difference between the two? None. Effective Interventions was driven by the former Labour-led government, while Drivers of Crime was essentially the then new National-led governments rebranding exercise.

So, on to the stage management of the exercise by policy officials:

The art of stage management of policy consultation exercises involves a number of key components, only a few of which I will discuss here.  One of the most important issues confronting officials tasked with organising such an event, is to control the list of invitees to ensure few, if any, critical commentators, or those considered by officials as 'risky', attend the event.  In this respect Ministry of Justice officials, and the then Minister of Justices' staff did their very best to meet this requirement.  In the weeks leading up to the event they repeatedly attempted to block a number of Maori activists, critical commentators and such like from participating; most of whom had been placed on the list of potential invitees by various Maori government ministers, and Te Puni Kokiri (Ministry of Maori Development).  I was one of those people the Ministry of Justice tried to block, as were current and former gang members, and in one case a man who, while not a gang member, had spent decades development and delivering social services (such as drug rehabilitation) to gang families. In this case the attempts by Ministry of Justice officials did not succeed because of the ethical position taken by Te Puni Kokiri officials, supported by the then Associate Minister of Maori Affairs Tariana Turia, and eventually the Minister of Maori Affairs office, to stand their ground and insist on a broad representation of Maori at the forum.  This they argued was essential given that the issue of Maori over-representation was one of the two broad issues up for consideration at the event.

Before I move on to other strategies of stage management, I want to say something about the attempts by officials to block current and former gang members from attending the event: In a previous blog I have exposed that an unwritten rule of government agencies in New Zealand is that they 'don't work with gangs', which also means that officials can not be seen to engage with gang members.  Of course this rule is unwritten, and its application is, as always, contingent upon specific events and the attitudes of individual government officials. For example, the late, former Prime Minister Robert Muldoon was well known for his willingness to engage with gang leaders, and indeed supported the development and implementation of labour schemes for gangs. Similarly, the ex-Minister of Maori Affairs, Pita Sharples was not shy about engaging with gangs, or attending community forums where it was known they would be attending. And of course Te Puni Kokiri, as the lead government adviser on Maori issues, would also seek to engage with gangs to inform the development of social policy; although I wonder how long this enlightened approach to policy development will last at the Ministry now that Harry Tam no longer works there... my guess is, not long.  During my time at the Ministry it became increasingly obvious that most of its tertiary educated, middle class Maori analysts had much more in common with their white counterparts at Treasury than they did with working class Maori, and were no more willing to, or better at, engaging with 'hard to reach' communities like gangs or youth offenders. And so, as a general rule Ministers of the Crown and government officials avoid engaging with gang members at all costs, even when, in the case of Ministry of Social Development officials, they are actually tasked with developing and implementing a 'gang strategy'!

So, back to strategies of stage management: having failed in their attempt to keep all the 'bad' Maori away, Ministry of Justice officials turned to two other well-worn strategies, i) setting the topics for discussion, and thereby limiting the potential for criticism of government policy and discussion of responses that do not fit with the prevailing policy position, and ii) dominating reporting of the results of discussion at the event. On both counts government officials were much more successful than they were in trying to block the involvement of certain Maori.  

The stage management of the event was evident from the beginning.  For example, the keynote speaker was an expert in child/youth development, someone well known in the justice system for advocating for an individual, psycho-therapeutic approach for dealing with child behavioural and youth justice issues.  His presentation pretty much focused on his work and those who agree with him, while ignoring all other approaches, evidence, etc.  His conclusion for significantly reducing crime in New Zealand?  The application of risk assessment, starting at the prenatal level to identify 'problem families and children', followed by early and extensive intervention based on psycho-therapy.  Critical analysis and consideration of issues like structural bias, colonialism, decades of ineffective policy making by successive governments, and any engagement with critical literature and research was totally absent, which strangely enough was exactly the type of policy position taken by the Ministry of Justice, Corrections, Ministry of Social Development prior to and after the event. But worst of all was that the same speaker had also been asked by officials to give the presentation on Maori issues, which he began by stating that he 'knew little about this issue', which he preceded to prove by delivering probably the worst presentation on the issue I've ever experienced.  At no point did he deal with Maori scholarship on the issue.  But most embarrassing of all was the performance of Chief Executive of the Ministry of Justice who stated that his perspective on the issues and his solutions left no room for argument.

And so it proved a few weeks later when the Ministry released a document summarising the key issues arising from the event and the 'draft' policy framework to inform the strategy. The perspectives of the key criminal justice agencies and their hand picked keynote speaker dominated the entire document, while the critical, systemic issues raised by a number of Maori participants was missing. 

And the silencing of the critical Maori perspective started well before the event itself, with the decision to ask the keynote speaker to present on Maori issues.  After the event it became known that Te Puni Kokiri officials had requested that a Maori scholar/commentator give this presentation, namely Dr Robert Webb from AUT University.  This request was rejected by criminal justice officials, and instead we got a presentation that would have been embarrassing even for a 2nd year criminology student.

The silencing process was prevalent throughout the event, with a number of Maori participants informing me afterwards of their frustration at the tendency of the Ministry of Justice adjudicators for their discussion group either totally ignored key issues they raised (which were collated on paper and collected later for 'analysis'), or re-phrasing their concerns so that they lost critical meaning.  In my discussion group I and another Maori participant more than once had to direct the justice official to write the issues we raised as we had described them.

Lastly, when the overview document for the forum was released some weeks later, none of the critical issues raised by Maori, bar one related to funding of community groups, appeared in the document in any meaningful way: nothing about bias in the application of policing, bias in sentencing, structural racism within the key policy agencies; all issues raised by Maori participants across a number of the discussion groups.

As I was not at the consultation forum held by the Prime Minister of Australia and the leader of the opposition in Sydney on the 6 July 2015, I can't say for sure that similar strategies of stage management were used by government officials to ensure that the government perspective prevailed.  My guess is that at a minimum the participants would have been presented with pre-selected 'issues' to 'guide' discussion, followed by, surprise, surprise, a few 'suggestions' about the process 'going forward', or something similar; suggestions that no doubt will form the basis for any further work on the referendum on the recognition of Aboriginal peoples in Australia's constitution. I have no doubt that Noel Pearson's description of the event was right on the money.  

Is New Zealand's Policy Sector 'Evidence Based'? Part 2

One of my favourite movies is Usual Suspects, released in 1995.  The film contains some memorable dialogue, but the one line that has stuck in my mind is probably the most often quoted: “the greatest trick the devil ever played was convincing the world he didn’t exist”.  This quote refers to the deceptive practices employed by the ‘Evil One’ to divert attention away from the role he/she plays in the madness and pain of everyday life.  A similar deceit frames the New Zealand’s Policy Industry’s on-going attempts to convince both the public and its political masters that it is politically neutral.  In my experience the Policy Industry in New Zealand is much more successful in this endeavour with the public, while most politicians are well aware of the politicised nature of the public service.

These comments are qualified, however, by acknowledging that many members of the public service, in particular those doing the technical work (let’s call them the ‘policy proletariat’) try hard to adhere to the public service code of conduct and the theoretical and practice bases of this thing we call evidence-based policy (EBP).  However, apart from the odd exception, in my experience policy-making is a fraught process which often requires its practitioners to compromise these core values on a regular basis.  Why?  Because in reality, contemporary policy making in New Zealand is not much different from the supposed bad old days of opinion-based policy that existed before the rise of EBP.  In fact I argue that the ‘Industry’ is no less ideological than it ever was, and it certainly is far from the objective, politically neutral beast its exponents claim it to be.

There are a number of ways we can evidence the argument that the Policy Industry is political: firstly, it is a given that a number of the public service are members of registered political parties.  Some keep their political affiliations to themselves; while others openly declare them as is encouraged under the Public Service Code of Conduct (PSCC) (State Services Commission, 2007).  The PCSS stipulates that while it is the right of all policy workers to affiliate politically they must be circumspect when carrying out duties on behalf of any political entity.  More significantly it is possible to also argue that the public service is wedded to the political system through the fact that officials and institutions are compelled to support the implementation of the policies of the Government of the day.  The myth of the political neutrality of the public service is built in part on the fact that the PSCC directs officials to give full and frank advice to government ministers.  What this should mean in practice is that if existing evidence does not support the policy directives from Cabinet and indeed may cause harm to the public, then it is the duty of public servants to advise Ministers’ of this fact.  However, in reality this rarely happens, especially in the crime control sector, and when it does it is often more about protecting the reputation and resources of the agency and their Ministers’, and less about protecting the public from ‘bad’ policy. 

The political nature of the Policy Industry is, however, much more insidious and far reaching than these benign examples demonstrate.  The Industry can be charged with being political and partisan (as opposed to neutral) via the fact that while directed by Cabinet and beholden to it, it holds extensive power over the development and implementation of policy itself.  If you live in Wellington, New Zealand and work in the Industry long enough, you will hear politicians and media (and sometimes, but rarely, policy workers) state that policy is not made or dictated by Cabinet, but is controlled by the policy mandarins in the small geographical triangle that takes in the parliamentary precinct, the Terrace and much of Lambton Quay.  This point is often made tongue-in-cheek, but my ten years of experience working in the Industry leads me to argue that it holds true in many cases. 

The myth of political neutrality masks a two of sub-surface truisms that are not easily observed by external audiences.  These are that i) part of the ‘art of politics’ and therefore of policy-making (which is the textual articulation of political theory/ideology) is a theoretical or conceptual framework for explaining the world and how it works; ii) while individual members of agencies will have their own ‘theory of the world’, agencies utilise specific theoretical paradigms that match their institutional view of how the world works, and form the ideological bases for policy development.  For example, neo-liberal economics has been the dominant political and economic theory/philosophy for the development of economic policy by New Zealand’s Treasury agency since the mid-1980s; the Psychology of Criminal Conduct is the dominant theoretical paradigm in the development of prison policy by the Department of Corrections from the mid-1990s (Department of Corrections, 2013); and a form of neo-tribal orthodoxy underpins policy making in the Ministry of Maori Development (2013); and iii) agencies employ various rituals and associated activities that either mask the theoretical underpinnings of their processes or validate them over others.

Case Study: the Organised Crime Strategy

To demonstrate the political nature of policy making and the myth of the primacy of evidence, we need look no further than the highly inflammatory issue of gangs and crime.  On 7 May 2007, a two year old girl was murdered in Wanganui, the victim of a gang-related drive-by-shooting.  Understandably the incident caused outrage amongst the wider public and politicians.  Through the media, public figures, such as the Mayor of Wanganui, Michael Laws, called for ‘something to be done’ about the perceived violence and general lawlessness of ethnic gangs in the region (Wanganui District Council, 2007).  The Government’s response was swift: just a few days after the incident, public service officials were called upon by Ministers to brief them on the issues and potentially effective policy options.  Up to that point the only meaningful, albeit largely ineffective policy initiatives in place were the Ministry of Social Development-led inter-agency project called the Plan of Action: Improving Outcomes for Young People in Counties Manukau (Ministry of Social Development, 2006) and a joint Ministry of Maori Development/New Zealand Police project which utilised established (adult gang) leaders to mediate directly with so-called youth gangs in an attempt to dampen down tensions and reduce the potential for further violent confrontation between these groups.  The reality was that over the preceding decade or more the crime control and social policy sectors had an unwritten rule of not working with gangs, meaning no funding for gang members to develop social programmes or support for activities that involved gang members or their associates (although there are exceptions to this rule, such as the Ministry of Maori Development/whanau ora funding for gang-focused social programmes, but these are very exceptions to the unwritten rule of non-engagement which must surely be in violation of the 'rules' of EBP). 

Officials’ response to requests from Ministers about how best to respond to the Wanganui incident, was to revive the then grossly overdue Organised Crime Strategy (OCS) (Ministry of Justice, 2002) that was initially part of the larger Crime Reduction Strategy signed off by the Labour government in May 2001.  The Strategy identified seven priority areas for the wider criminal justice sector, of which organised crime was designated Priority Area 5 (family violence and community violence and sexual violence were priority areas one and two).  By the time of the Wanganui gang shooting, priority area five was the least developed, and certainly any formal strategy was by then almost six years overdue.

Work began in earnest on resurrecting the OCS in mid-2007.  It involved some of the usual strategies, tactics and rituals officials utilise in order to be seen to be busy when potentially nasty coordination problems arise in the public sector: firstly, lead agencies were empowered (in this case, Ministry of Justice, followed closely by the New Zealand Police); other important players were identified (for example, DPMC, Ministry of Social Development, and to a lesser extent the Ministries of Maori Development and Pacific Island Affairs); an inter-agency group established; a schedule of meetings agreed, along with priority work items (background papers, briefings to Ministers, Cabinet papers, etc) and tasks identified and allocated.  Given the political capital inherent in the gang-related incident in Wanganui, work on developing the OCS was given priority by Government, and therefore by participating agencies.  The fact that the lead agencies had failed to deliver on the promised organised crime strategy for some two to three years was never discussed at formal meetings and overlooked in official documentation.  Regardless, this overdue strategic item provided agencies with a ready vehicle to be seen to respond meaningfully to what Cabinet clearly considered to be a politically-charged, perhaps even electorally damaging issue.

All of the above strategies and activities can be viewed, individually or collectively, as rituals of (in)activity.  In the event of a highly charged, political issue arising, agencies (individually or collectively) swing into ‘action’, utilising the well-established rituals of activity outlined above to serve as markers of responsiveness, concern for public safety and expertise.  The long overdue OCS became a vehicle through which officials and agencies could demonstrate their ability to respond quickly and efficiently.  Having no doubt briefed Minister(s) on the situation, including claiming that the Strategy was an appropriate and effective mechanism for responding to the Wanganui incident, officials then moved to deploy another set of rituals, referred to here as the rituals of deception.  This set of rituals is commonly used by criminal justice officials who need to retrofit policy to a social issue for which it is unsuited.

Retrofitting in the case of the OCS, refers to the fact that other policy mechanisms and strategies already existed through which to create meaningful policy; the original intent and focus of the proposed OCS did not correlate to the type of social issue that developed in Wanganui, and the lack of evidence that an OCS-style approach would demonstrably alter the social conditions which led to the Wanganui incident.  Rituals of deception are common in situations of policy retrofitting: they enable officials and agencies to mask the fact that their activities are more about managing potential coordination problems than about constructing meaningful ‘real world’ solutions.  The coordination problems that were the target of the OCS-related rituals of deception were masking a long-overdue piece of supposedly important strategic work, the historical lack of meaningful policy response to gang-related violence and gangs per se and the complete failure of the preferred suppression and surveillance policies since the mid-1980s to solve the so-called gang problem.  All of these coordination problems carry the potential to negatively impact institutional credibility with Cabinet and the public and inter-agency relationships. 

Why the deceit?

There are a number ways to explain and understand why supposedly neutral policy mandarins become involved in the politics of policy and utilise rituals of (in)activity and deception.  At base level it has to do with affinity and access: the higher up the managerial decision-making structure one gets, the closer you are to the political decision-making process and the politicians who ultimately make those decisions.  Accordingly, the more one has ready access to political authority the more one pays attention to the political consequences of policy design and implementation.  In other words, the higher up the management food chain you move, the less concerned with the technical development of policy you become, and the more you focus on what is referred to in Wellington as the ‘front page of the Dominion-Post test’: namely, how will a particular policy or policy issue look in the news media when it is released?  A further issue for consideration is what is the risk of negative media publicity to Cabinet and the policy sector?  In other words, senior managers can be viewed as political commissars who carry out the dual roles of educating the technocrats on the political expectations of Cabinet and the Ministry, and providing political risk assessment and protection services for Chief Executives, their agencies and Cabinet Ministers. 

Of course it can be countered that the argument I present here robs policy workers of their ‘agency’.  However this position presupposes that policy workers are empowered to carry out independent articulation of ‘free thought’ in the politically charged environment of a policy shop to begin with.  The authors experience was that this was rare and most definitely discouraged.  The reality of the policy environment and the position of the policy proletariat is effectively summarised by legal theorist Stanley Fish (1989: 141) who describes professional analysts not as free agents, but as "embedded practitioners" whose values, canons of evidence, normative measures and theoretical schema are proscribed by his or her professional community.  As a result, the potential for professional objectivity or political neutrality are, by definition, curtailed significantly by their personal, and their agencies proximity to, political power. 

The policy commissars and their direct line managers, who may be referred to collectively as the Policy Elite, also have the unenviable task of adhering to and implementing the policy platforms of incoming (newly elected) governments, along with new policy initiatives dreamt up by the current government.  This can be a nightmare at times, especially if the government’s policy goes against the majority or all of the available research evidence, as often occurs in the criminal justice sector (see below).  The case study of the OCS and policy response to the Wanganui incident highlights the myth of the political neutrality of the public service.  This example also underlines the role of ritual in masking the way(s) in which officials and agencies will bow to political and media pressure and construct policy responses ill-suited to the specific social issue that is dominating front page news at a particular time. 

References

Department of Corrections (2013) Annual Report 2012/13. Wellington: Department of Corrections.

Fish S (1989) Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies. Durham and London: Duke University Press.

Ministry of Justice (2002) Crime Reduction Strategy. Wellington: Ministry of Justice

Ministry of Maori Development (2013) Measuring Performance and Effectiveness for Maori: Key Themes from the Literature. Wellington: Ministry of Maori Development.

Ministry of Social Development (2006) Plan of Action: Improving Outcomes for Young People in Counties Manukau.  Wellington: Ministry of Social Development. 

State Services Commission (2007) Public Service Code of Conduct.  Wellington: State Services Commission.

Wanganui District Council (2007) Toddler Death: A Sad, Appalling Tragedy.  Wanganui: Wanganui District Council.