Advocates, experts and Māori say New Zealand needs to find a viable alternative to prison. Photo: RNZ/Diego Opatowski

New Zealand relies on prisons for retribution and control, but what if we found viable alternatives to our punitive justice system? Laura Walters talks to experts and advocates about what needs to change

One day when James Allen visited his son in Mt Eden Prison, the side of his face was smashed. Another prisoner had hit him with a pool ball in a sock.

This wasn’t the only time the 32-year-old was involved in a fight while in “that hellhole of a place”.

Allen said his son would have been held on remand for two years if they didn’t borrow $16,000 to hire him a good lawyer.

A court date was set four times, and then cancelled.

“The bottom line of what we have here is a defendant who has become a victim.”

Another young man with no prior convictions, and what looked like a bright future, was just 21 when he was imprisoned at Mt Eden.

He spent 18 months on remand. He too waited for court dates to arrive, and then watched as they were cancelled.

An unofficial mentor, who has been supporting the inmate, said during this time the young man wasn’t himself. He wasn’t given access to programmes and support that could have helped.

The mentor believes if the man could have afforded a good lawyer he might not have been held in prison at all.

Even after sentencing, he waited close to a year to begin the courses he was required to complete – all the while being denied parole because he hadn’t completed the programmes.

The 23-year-old is now in Waikeria Prison, where he is “more like himself”, and able to use his skills as a personal trainer to help staff and other inmates.

Unfortunately, these experiences aren’t unique.

On Wednesday, there were 9292 people locked up in prisons across the country. 

Of those, 3293 people were on remand, meaning more than 35 percent of the country’s prison population is made up of people who either haven’t been convicted, or haven’t been sentenced.

Principal Youth Court Judge, and member of the District Court leadership team, Judge John Walker said the ballooning remand population was a problem, and the best way to fix it was to sentence people more promptly.

Yes, more programmes and rehabilitation available for remand prisoners would help, but ultimately, these people needed to be properly assessed and either sentenced to a community or custodial term, in a timely fashion, Walker said. From there, they could engage with programmes that would help them move on with their lives, and hopefully stop them reoffending.

He said the reason for the backlog was multifaceted: complexity of cases, seriousness of offending, more complicated sentencing outcomes, and the need for other reports, such as cultural, psychological and restorative justice reports.

Add to that the pressure the judiciary and corrections systems are under, and it’s not surprising there are more than 3000 Kiwis waiting on remand.

What Walker did not mention were the 2013 changes to the Bail Act. This law change has been the biggest single driver of the rising remand population, and one of the key reasons why New Zealand continues to incarcerate people at such a high rate.

The 2013 changes – something National leader Judith Collins recently highlighted as an achievement for the former National government – now mean when someone is charged with a violent, sex or drug-related crime, they have to prove they pose no risk to he community before they are able to be bailed into the community.

The law change followed the 2011 death of 18-year-old Christie Marceau. Akshay Anand Chand was on bail when he killed her.

This law change, and the subsequent blow-out of the prison population, is an apposite example of how the country’s punitive attitudes to justice, and political rhetoric that whips up fear, can have far-reaching impacts.

“This is not getting ‘soft’ on crime but getting ‘real’ on the drivers of crime and prevention.”

When the coalition Government took charge the prison population was at an all-time high. When it peaked at 10,820 in March 2018, they promised changes.

They fast realised tinkering at the edges wouldn’t get to the heart of the problem, and the Government set an ambitious target to reduce the prison population by 30 percent in 15 years.

The Justice and Corrections ministers started by ironing out kinks and administrative issues that stopped people from getting bail or being prepared for sentencing. Then they launched a national conversation about the problems with the justice system and how to fix it.

But three years on, neither the Government, nor the Labour Party, has put up a cohesive policy plan to show where it’s headed next.

And while the prison population has come back from it’s all time-highs, it looks unlikely to move much lower without law changes, and a system overhaul.

In the meantime, the National Party is filling the void with a return to a “tough on crime” rhetoric, and the unveiling of a ‘law and order’ policy, that would see the Government’s prison population reduction target scrapped.

In the absence of meaningful Government policy, and a nationwide conversation that’s stalled, Newsroom is running a series of articles, asking experts, members of the judiciary, advocates, and those with lived experience, what kind of change they want to see.

One of the themes that has been repeatedly discussed over the past two years is that of ‘decarceration’, or creating viable alternatives to prisons.

Everyone who spoke to Newsroom agreed the current prison system wasn’t set up to successfully rehabilitate and support offenders in a culturally appropriate way, and to ensure they did not reoffend.

There has been commendable work within the Department of Corrections: improving in areas of cultural competency, the availability and range of rehabilitation and reintegration programmes – including kaupapapa Māori options ($243 million in 2019), more affordable and safe housing available for people upon their release or while on community sentences ($7m a year for post-release and $57.6m in Budget 2018), and improving mental health and addiction treatment (127.5m in Budget 2019). 

But there is only so much that can be achieved without a fundamental shift in the way the country views, and reacts to, offenders.

“Not one person I speak to is proud or content with our rates of imprisonment, particularly for Māori and Pacific people.”

New Zealand Law Society president Tiana Epati said barriers to justice were numerous and include discrimination, education, poverty, the structure of justice institutions, limited legal assistance and representation for everyone.  

The justice system needed wholesale reform, and there needed to be a better understanding of what behaviour should be criminalised, why criminal offending occurred in the first place, and how to prevent re-offending.

“One which shifts from purely a punitive approach to criminal justice to a better understanding of the causes, drivers and interventions which make all the difference at an earlier stage of the pipeline.”

Knee-jerk reactions to high-profile individual cases or incidents shouldn’t be the basis of justice policy, Epati said.

Laws like the Bail Amendment Act or the creation of the three strikes law (the Sentencing and Parole Reform Act) had led to “more and more people becoming incarcerated with no hope for rehabilitation or ever reintegrating into their communities again”.

Rather than keeping victims and communities safe, it was creating re-victimising environments, where offenders were more likely to reoffend.

This was not about getting ‘soft’ on crime but getting ‘real’ on the drivers of crime and prevention, she said.

It’s impossible to talk about a move away from a punitive, over-relaunch on prisons, without looking at the disproportionate impact of Māori.

Currently, Māori account for about 16 percent of the general population but 52 percent of the prison population. The rates of Māori are higher in the remand population than the sentenced population.

Ināia Tonu Nei, the report from the Safe and Effective Justice panel’s Hui Māori also called for transformational change, starting with the disestablishment of the current prison system.

“For generations Māori have suffered disproportionate adversity from a justice system that has been imposed on our people,” the report authors said.

“Not one person I speak to is proud or content with our rates of imprisonment, particularly for Māori and Pacific people,” Epati said.

So there was the will to change, but there needed to be strong leadership, and a clear vision, to make that happen.

After a brief respite under leader Todd Muller, the National Party has once again taken up the mantle of ‘the party of law and order’ under Judith Collins. Photo: Lynn Grieveson

While the Government has not supported the calls disestablishing the prison system, it has acknowledged significant changes need to happen.

A year ago Corrections Minister Kelvin Davis and corrections unveiled the new five-year strategy for the Department of Corrections, Hōkai Rangi.

Corrections national commissioner Rachel Leota said the strategy was the department’s commitment to achieving better outcomes for people in prisons.

“Public safety is our priority, and the values in this strategy, are designed to reduce re-offending so there are fewer victims of crime.”

Leota said Hōkai Rangi, which was initially written as a Māori strategy, was geared towards building closer partnerships with Māori, and contributing to addressing the disproportionate rate of Māori in prison. 

Over the past year, the department had realigned its governance and operational settings to fit with those of Hōkai Rangi, reprioritised its budget, and was working on creating measures and indicators to help track success.

As part of the measurements of success, Davis committed to reducing the Māori prison population to match the general population.

Davis said creating the strategy and indicators of success was no easy feat.

“I expected that building authentic partnerships with Māori through the co-design process would be time-consuming, and it has been.”

But the investment in relationships at the front-end and insights that had come from it, would support future co-design and enhance the existing relationship.

Davis said he was encouraged by the overall progress he’d made in the corrections portfolio.

“We have focused on doing things differently to reduce re-offending and give people inside our prisons and offenders in our communities every opportunity to turn their lives around…

“If we get [the approach under Hōkai Rangi] right, it’s going to represent the most significant and positive change in our Corrections system ever, and I know just how important this is to my people, to our whānau, hapū and iwi.”

“Instead of focusing on reducing crime, there has been a focus on getting people out of prison. We don’t believe that is helping make New Zealand safer.”

But National Party leader Judith Collins has taken an entirely different approach, calling Davis ‘soft on crime’.

“He’s been utterly useless as a minister, and I’m so glad he’s not my deputy,” Collins said about Davis when releasing the party’s justice policy.

“We are the party of law and order.”

She said law and order had not been prioritised under this Government.

“Instead of focusing on reducing crime, there has been a focus on getting people out of prison. We don’t believe that is helping make New Zealand safer.”

Collins spoke about victims and said people chose to be criminals, but not to be victims. She said the Government’s only focus was to “get people out of jail so they can get back to crime”.

And while she spoke about the victims of crime, she failed to paint the complete picture.

Similarly to Collins, Corrections’ Rachel Leota said public safety was Corrections’ priority.

But that was achieved through putting in place a system with the right values and worldview, in order to reduce re-offending so there are fewer victims of crime.

David Hanna, head of community services organisation Wesley Community Action, said a key barrier to justice was human fear.

“This base emotion that is important to keep us safe, however if over stimulated keeps us stuck and unprepared to take the risks essential for our evolution.

At a political level this fear was played on by political parties to maintain the status quo, Hanna said.

“As a powerful emotion, it has been very easy for our binary political system to manipulate and exaggerate this fear, and as we know social media is a super conductor of this fear.  

“The fact that we largely continue to have a prison system based on Victorian England values and thinking highlights how effective this strategy has been.”

“Over the past three decades, people in successive governments have made policy decisions that have fuelled a retributive justice system, focused on punishment rather than prevention and healing.”

And this fear doesn’t align with the facts. In New Zealand, 4 percent of people experience 47 percent of crime – this is out of step with widespread community fear. 

Surveys also show older people are most scared of becoming victims of crime, but least likely to actually be the victims of crime.

Hanna, whose organisation supports people in the community and helps prevent crime, said there needed to be a change to the punitive attitudes that currently led New Zealand to lock people away in prisons and, in too many cases, throw away the key.

There were good initiatives, such as the therapeutic courts that had bipartisan support. But he described these as “clip ons”.

Tania Sawicki Mead, the head of justice reform advocacy organisation JustSpeak, said while many people had the ability to see and believe in a better system, in the absence of visionary alternatives the foundational attitudes, built on a history of punishment and control, persisted.

Sawicki Mead said it was hard for the general public to envision a viable alternative to prisons and punishment, as it currently existed – especially when politicians were trying to whip the population into a fervour.

“Over the past three decades, people in successive governments have made policy decisions that have fuelled a retributive justice system, focused on punishment rather than prevention and healing.”

Instead of working together to fix the problems of high imprisonment, and locking people into a maze where they became trapped, parties used justice as a political football.

It was possible to dismantle the policies and law that had fuelled mass incarceration, move away from the reliance on prisons, and provide pragmatic solutions to the social issues that pushed people into the justice system in the first place, she said.

It was hard for general members of the public to imagine the alternative – especially with worlds like ‘transformation’ or ‘wholesale reform’ thrown around.

But experts and advocates had been working on this for decades. And over the past two years, the Government-appointed panels had come up with a raft of actions and solutions.

Thus far, the significant recommendations had not been adopted.

In an effort to outline a collection of pragmatic, priorities to stop mass incarceration, JustSpeak has released a collection of funding, policy and legislative actions it recommended the next government adopt.

“What’s the point of all these expensive reviews? Get on with it!”

The organisation was calling for funding of pretrial and post-release housing, to reduce the number of people held on bail or denied parole because of insecure housing.

Significant funding for pre-trial and post-release community services for people facing charges and their whānau, and a substantial increase to legal aid funding.

JustSpeak also recommended the mainstreaming the approach of therapeutic courts; mandate all key social service and justice agencies to work together to provide pretrial community services and wraparound bail support schemes to keep people out of remand; and the establishment of Te Pae Oranga – iwi community panels – across all regions as well as requiring police to refer people for all low-level offences.

By way of legislative action, there were calls to raise the youth justice age to 25, and keep young people in a restorative programme to help reduce reoffending, rather than have them caught in the system from a young age.

And repealing the Bail Amendment Act (the law change following Marceau’s murder) and three strikes law, as well as a full review of the sentencing and parole acts.

While some of these actions might sound extreme, many were included in the recent reports from the Government’s Safe and Effective Justice work programme, and in research and recommendations from Māori experts and academics for decades.

James Allen – the father of the 32-year-old who was hit with a pool ball while being held on remand at Mt Eden Prison – wrote to Justice Minister Andrew Little in an attempt to bring about change.

If it was going to take a generation to fix the justice system, and stop locking people away when there were viable alternatives, the work needed to start now, he wrote in his letter.

“What’s the point of all these expensive reviews? Get on with it!”

This is the second in a series of three articles that look at the current barriers to justice, and ask what a justice system transformation could look like, in the lead up to the general election. Read the first article on decolonisation here.

Correction: An earlier version of this story incorrectly named the head of Wesley Community Action as Mike Hanna, rather than David Hanna.

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