Today's post is written anonymously.
Our current criminal justice system largely reflects the one we were benevolently gifted by the British in their colonial heyday. We’ve made some tweaks here and there since then, but the principles underlying the system are basically the same: when someone commits a crime, they are charged, convicted, and punished.
Academics broadly agree that punishment is
meant to achieve five purposes. It denounces and deters wrongdoing, seeks
retribution against people who offend and removes them from society, and
(finally) rehabilitates them into society. Punishment is therefore meant to
operate on several levels. Victims should feel like those who have offended
against them have been disciplined. At the same time, people who are convicted - and
society at large -should be warned off similar offending behaviour in the future.
Or at least that’s how it’s meant to work
in theory. People with experience in and around the criminal justice system
will tell you that whether punishment ever manages to achieve the ideal balance
of these objectives is debatable.
For decades, the success of our criminal
justice system has been measured in rates of offending and reoffending. How
many people commit a crime, and how many people, after they have been charged
and convicted and punished, end up committing further crime? The problem with
relying on crime rates is that they don’t reflect trends in the wider justice
system. The Department of Corrections says the “crime
rate is a relatively weak driver of the prison muster.” They know that rather
than increases in crime, it is legislative changes that have caused the growth
in our prison population since 2000.
There is a clear disconnect between crime
and punishment in New Zealand: less crime has not meant fewer people starting
prison sentences. And yet, when asked at a JustSpeak forum in Wellington
several weeks ago, representatives from all political parties said they were
committed to reducing the prison population - and the Māori
prison population in particular.
The only problem is how we’re going to get
there. It’s clear our current approach isn’t working. These
figures are 15 years old but they show that within four years of release
from prison, half of all released prisoners end up back in prison. Recent
figures for Māori prisoners are grimmer: more than 60% are back in prison
within two years of release (page
11).
Corrections’ figures from 15 years ago
probably still hold true. If half of all prisoners return to prison within a
few years, you could say that imprisonment as a policy to deter crime only has
a 50% success rate over the short to medium-term. This wouldn’t be considered
good enough in most other areas of human existence and wellbeing, especially
when you factor in how much it costs to run prisons and the other consequences
of imprisonment.
The policy success of imprisonment becomes
more questionable when you look at who the system tends to punish most severely.
87%
of prisoners were either unemployed or in very low-paid work right before they
went to prison. 91%
of prisoners have a lifetime diagnosis of mental health or substance abuse
issues.
It is the people living the most precarious
lives who find themselves experiencing the sharp end of justice in our country.
This would also go some way in explaining our crime trends. While crime rates
may not have been going up, we have seen increasing inequality
and poverty over the last few
decades. Instead of being a product of crime rates, our prison population might
instead be a barometer of whānau ora and societal wellbeing.
Reversing the trend of a growing prison
population requires going back to basics. Our imported notions of justice and
fairness are no longer fit-for-purpose. We need to ask what we want our
criminal justice system to do, and what its core functions should be. It’s
become inadequate to say our justice system only needs to uphold laws and
punish those who transgress. A 21st century criminal justice system in Aotearoa
New Zealand will only succeed if it improves the lives of people who come into
contact with it.
The hard part is figuring out how to
achieve this. Some parties have policies
that seem like a step in the right direction. Others appear determined to
do the opposite. None go as
far as suggesting a fundamental rethink of the purpose and modus operandi of
our criminal justice system. This is probably because saying this out loud is a
recipe for political disaster. It is embedded in our cultural DNA that
institutions as hallowed and entrenched as the criminal justice system are not to
be lightly tinkered with.
Yet tinkering is all we’ve been able to do
in the last couple of decades. The most promising innovations in criminal
justice have happened on the fringes. The one Matariki Court in Kaikohe, two
Alcohol and Other Drug Treatment Courts in Auckland, and three Iwi Justice
Panels across the country are some examples of this tinkering. The Matariki Court and Alcohol and Other Drug Treatment Courts take advantage of a provision in our Sentencing Act, which allows courts to adjourn sentencing so that a restorative or rehabilitative programme can take place. The Alcohol and Other Drug Treatment Court aims to break the cycles of substance abuse which cause or fuel offending. The Matariki Court involves the creation of culturally-appropriate rehabilitation programmes, which are provided by Ngāpuhi and other community organisations. Iwi Justice Panels are a pre-charge alternative resolution pathway, where community panels work with people who have committed low-level offences. The aim is to ensure they do not offend again by addressing any factors in their lives which may have contributed to the offending, and also rebuild relationships between people who offend and their victims.
These
pilots all have one thing in common. They're not about being judged solely
based on your crime. Instead, they involve people facing up to and taking
responsibility for their actions, while also being assisted by their whānau and
communities to prevent future offending. They are examples of the justice
system and local communities carving out space to help people address a wide
range of issues in their lives in a respectful and collaborative manner. They
involve treating people as individuals, and giving whānau a meaningful role to
play.
Early indications from all of these pilots
are
positive.
But instead of being adopted in the mainstream criminal justice system, these
approaches remain a fringe element. They are seen as nice-to-haves rather than
must-haves. While the solution may not lie entirely with these three pilots,
they're a good starting point. They represent a fundamentally different way for
the criminal justice system to interact with the people within it.
The problem is that we fear change in this
area, and assume it would destabilise or undermine justice itself. This fear
both in government and within society is holding us back from embracing new
approaches on a large scale. This isn’t the sort of situation where refusing to
try means you can’t fail. Every day that we don’t try means continued failure
for the people who experience a criminal justice system that doesn’t comprehend
their needs, whether they have committed a crime or been victimised (or both).
Come September 24, it is hard to imagine
any government proactively taking a long, hard look at our criminal justice
system. To do so requires courage: the courage to admit our current system
isn’t working; to undo counter-productive legislative changes; and to say that
people like prisoners are worthy recipients of our collective compassion and
respect. Perhaps we can help our next government by demonstrating these are conversations
we’re ready to have.
Today's contributor works in the public sector and has chosen to remain anonymous. The views expressed are their own.
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