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DO WE NEED MORE PRISONS?

Jarrod Gilbert

THERE ARE FEW AREAS OF PUBLIC POLICY as divisive, difficult, important and often ill-informed as corrections.

New Zealand is good at incarceration. Our high imprisonment rate is well known, but even by New Zealand standards our recent growth has been phenomenal: as of December 2017, we had a total of 10,500 prisoners in our jails. This marked a rise of 20 per cent since 2014, or an astounding 72 per cent since 2003. Our per capita rates are 39 per cent higher than the United Kingdom and 23 per cent higher than Australia, both of which are in the midst of their own prison population booms.

As a result of this, and the 30,000 people on community-based sentences, the Department of Corrections has become the twelfth-largest organisation in New Zealand. It employs 8300 staff and has a yearly operating budget of around a billion dollars.

Our prisons reflect some of the country’s most significant problems and some of our most significant challenges. From Māori over-representation, to gangs, to mental health issues, there are seemingly limitless questions. But do we have any answers? And what is the Department of Corrections doing to address them?

Māori

More than 50 per cent of the prison population is Māori. At 15 per cent of the overall population, Māori are clearly disproportionately incarcerated in New Zealand. But if that scenario is unpacked in different ways, the seriousness of the disparity is further highlighted.

For example, if Māori were imprisoned at the same rate as non-Māori, then the total prison population plummets from 10,500 to around 5500. And just like that, the country has no prison crisis and we are closing, rather than building, prisons. Based on per capita imprisonment ratios, New Zealand moves from being seventh in the OECD to twentieth, comfortably behind Australia and the United Kingdom. In short, if Māori conviction rates were the same as non-Māori, the effect is utterly transformative.

Conversely, if the entire population were to be imprisoned at the same rate as Māori, New Zealand’s prison muster would be over 30,000. Such a scenario would be seen by most as outrageous, I’m sure; and yet it currently reflects the realities for many Māori families and neighbourhoods.

This data and what it represents must be confronted, but I am mindful of the difficulties that can arise given they involve two explosive elements of conversation — ‘Māori’ and ‘crime’ — that tend to draw out the worst in political and public debates. During discussions of crime, we too often allow rhetoric and emotion to swallow logic and reason. The same is true of Māori issues. The tenor of Pākehā conversations often sidesteps common manners, while in academia the opposite is true. Many academics are so afraid of causing offence they become intellectually reticent. But while I have some concerns around Māori crime and imprisonment conversations, these are trumped by the far greater fear that the situation continues unaddressed. These are conversations we must have.

An often highlighted issue with regard to Māori is institutional racism and its influence on the statistics of Māori in the criminal justice system. Accepting there is a degree of what New Zealand Police Commissioner Mike Bush calls ‘unconscious bias’ seems sensible, but we must be very cautious as to how much weight we give to this.

This issue was never better highlighted than by an Independent Police Conduct Authority (IPCA) report from late 2016 and the media coverage that followed. The IPCA report examined pre-charge warnings used by police, and, given the dearth of research with regard to other aspects of the justice system, it is one of the few sources of analysis we have.

Pre-charge warnings are employed when a person has been arrested for a minor offence that requires police intervention but a ‘public interest’ test indicates prosecution is not warranted. It is intended to give some account for the offence by recording the warning as part of a criminal history while keeping the person out of the justice system.

Apart from saving taxpayers considerable sums by keeping minor offenders away from the courts, the thinking behind such warnings is that the shock of contact with the police and a formal caution will act as a wake-up that modifies an offender’s future behaviour.

The IPCA report found that Māori are significantly less likely to get pre-charge warnings than non-Māori. The headlines from that point wrote themselves. It was concluded, quite naturally perhaps, that racism was at play.

But headline figures didn’t tell the whole story. Far from it, in fact. The IPCA drew on an audit of those given pre-charge warnings, which found that 51 per cent of non-Māori had no previous convictions but only 26 per cent of Māori enjoyed a clean record. Among a number of disqualifying factors for a pre-charge warning is a person’s previous criminal history. This was near universally ignored in reporting and commentary around the report, even though the IPCA stated: ‘The Authority has not come across any evidence that clearly demonstrates differential treatment on the basis of ethnicity.’

I could not find a single reference to that in the media, who universally declared the problem one of racism. It was poor journalism, certainly, but it also highlights how we can accept certain positions unquestioningly. Even if the report had found a bias, though, the impact of that bias would almost certainly only be enough to blur the edges of the issues.

I’ve done a lot of work with criminals inside and outside prisons, and while Māori are over-represented, the commonality that is most obvious between Māori and non-Māori offenders is deprivation and disadvantage — the foibles of those terrible pockets of lower socio-economic communities. And here we stand on foundations altogether more solid.

The Ministry of Health found that one in four prisoners reports a mental illness or psychological condition that makes everyday activities or socialising difficult, and one in five has difficulty learning, which is unsurprising given the Department of Corrections has found that 71 per cent of prisoners have difficulty reading and writing. This data, of course, points to the drivers of crime; the factors that influence offending.

Māori are over-represented in communities in which such problems have fertile ground. The unemployment rate for Māori is double that of non-Māori, Māori have the highest rates of binge drinking and smoking, and their morbidity data is across the board depressing. Māori die younger and have a higher suicide rate. Educational attainment and incomes are comparatively low. Māori dominate gang numbers, and they are also more likely to be the victims of crime. Tackling criminal justice bias, whatever that might be, will not solve these problems.

If we were to rid ourselves of racial bias throughout the criminal justice system tomorrow — to whatever extent it exists — the problems for Māori would remain largely intact. Yet they mustn’t be allowed to stand; these things need to change. To my mind, at least, if there is a marker that demonstrates failure in New Zealand it is Māori imprisonment statistics.

Gangs

One issue linked to Māori imprisonment is their over-representation in the gang scene, and gangs are seen by the Chief Executive of Corrections, Ray Smith, as being perhaps the most significant issue facing his department.

Gangs as we know them (groups who wear patches) were formed in New Zealand during the 1960s and 1970s. They were first mentioned in prison reports in 1978, where they were seen as an emerging administrative problem. In fact, they were on their way towards fundamentally changing prison culture in this country. Before the gangs, prisoners abided by an inmate code that generally bound them together against the common enemy of jailers. As gangs began to enter prisons, however, members suddenly had allegiances to the inmate population as well as to their gang; when these allegiances came into conflict, gang commitments were upheld and the inmate subculture was subjugated. This was particularly true in higher-security prisons, and nowhere more so than in the maximum-security prison at Paremoremo in Auckland.

Tensions and violence caused by the gangs led to a number of high-profile incidents, but one in the mid-1980s in Paremoremo had a profound effect that would provide lessons informing gang management that continue to be used today.

Throughout 1984, large numbers of Mongrel Mob members began attempting to assert dominance at the prison, and another gang, the Head Hunters, decided to take matters into its own hands. On Christmas Eve 1984, members of the Head Hunters launched a coordinated attack on the Mob in the gymnasium. A number of Mobsters were hospitalised with club and knife wounds.

The reaction from prison management was intuitive; they placed the different gangs into separate blocks of the prison on the rationale that if the gangs were separated there would be fewer conflicts. But the problems only escalated. The numerical advantage gangs had over other prisoners meant they had significant power, and non-members were thus at their mercy. In their block, the Mongrel Mob began charging non-affiliated prisoners rent for their cells and appropriating personal items like televisions and radios. Mobsters forced inmates to run errands for them, collect their meals and clean their cells. Self-harm and suicide among the prison population soared, and many non-gang members sought sanctuary in segregated protection units.

Attempts to manage the new problems led to gang protests and gang attacks on staff. The attacks led to the unprecedented action of an officer vote of no confidence in Paremoremo’s superintendent, who was eventually replaced. One of the new prison boss’s first actions was to end the practice of gang separation. Members would be dispersed throughout the prison and those who were unable to live peacefully would be moved into segregation. This continues today. With balanced gang numbers in each unit, no one gang is able to get an upper hand on the basis of a Cold War-like peace.

This is not to say that gangs do not cause problems. The 2013 riot at Spring Hill Corrections Facility in Waikato was dominated by gang members, and the ‘all for one, one for all’ gang code — which means gang members are likely to become involved if another member is engaged in conflict — may have exacerbated the disorder. At the time, Spring Hill had the second-highest proportion of active gang members in the country, and this was acknowledged as a significant risk factor.

In 2015, it was discovered that gangs were running ‘fight clubs’ in the remand facility at Mt Eden, in which inmates — some willing, some less so — were forced to fight one another. In part, the gang problems were due to a severe lack of appropriate staffing levels in the privately run Auckland facility. It proved that without supervision gangs are, as they have always been, a significant issue in prisons.

These issues in part led to the development of the Department of Corrections’ Gang Strategy, announced in 2017, to be implemented over four years. The strategy consists of a three-pronged approach to gang management:

1. Containment: Ameliorating the negative effect of gangs within the prison environment by reducing gang assaults, bullying, importation of contraband, staff corruption, misuse of communications, internal political influence and recruitment efforts.

2. Disruption: Reducing the capacity of gangs in prisons to carry on with business outside the prison confines by targeting cellphone activity, monitoring and controlling visitors, charging felonious gang members in prison with criminal offences, and providing incentives and opportunities for gang-affiliated prisoners to disengage from gang involvement.

3. Harm reduction: Improving the management of prisoners vulnerable to gang intimidation and exploitation, encouraging participation in employment, rehabilitation and other programmes, and use of gang intelligence information to manage highly influential prisoners who may be either removed from the general population or, if amenable, employed in ways consistent with the objectives of the Department of Corrections.

The development of a consistent, coordinated and organised strategy to manage and control gangs in New Zealand prisons is still relatively recent and can still be considered work in progress. Also, given the dearth of systematic studies of gangs in prison, even elementary questions of their activities and influence, as well as the options for intervening in gang members’ lives, remain based on a degree of assumption and guesswork. Until this knowledge gap is closed and policy is based on more sophisticated understandings, it is likely gangs will continue to provide challenges in the years ahead.

Mental health

If we know surprisingly little about gangs in prison, one thing we know far more about is the prevalence of mental illnesses, and here we are confronted by serious ethical jeopardy.

Staggeringly, nearly 91 per cent of inmates in New Zealand prisons have a lifetime diagnosis of a mental health or substance abuse disorder. In very real ways, prisons in New Zealand have become mental asylums. The unwell and the untreated tend to end up there. I’d argue there is a moral obligation to treat them, but, for those not sold on that idea, I think the practical outcomes of doing so are compelling.

If the underlying causes of criminality — in this instance mental health — remain unaddressed, then crime will likely be repeated, creating more victims and increasing the financial burden of prisons. And the results of that are demonstrable. More than 70 per cent of young people who go to prison will be sent back within five years of being released. The current situation gives every impression of being a revolving door, not a solution.

There are partial solutions, although none are particularly easy. A 2017 study out of the University of California found that by intensively treating people with mental health issues as part of probation, reoffending rates nearly halved. Such a result is impressive and ought to give hope of a best-practice solution. But rationality and justice policy are not traditional bedfellows. For years getting tough has been presented as the only answer to the question of crime; few people have paused to consider the suitability of that solution when the driver of offending is mental health.

There’s no mystery or magic at play here. When you work with prisoners you quickly become aware that the statistics and numerous negative social and economic indicators are not just apparent as data, they are also painfully obvious to observe. It is confronting, and anyone who works in prisons will tell you the same. And yet the overwhelming majority of New Zealanders will never get to peek over prison walls; for most Kiwis, our prisons are as removed and as foreign as North Korea. For when we fence in prisoners, we also tend to fence the public out. Out of sight, out of mind. But we need more input into the lives of prisoners and not less. The primary healthcare of prisoners, for example, is handled by Corrections, when I would argue it should be the domain of the Ministry of Health — as it is with every other New Zealander.

Staggeringly, nearly 91 per cent of inmates in New Zealand prisons have a lifetime diagnosis of a mental health or substance abuse disorder. In very real ways, prisons in New Zealand have become mental asylums.

When prisons are so physically and socially isolated, the public is vulnerable to emotive approaches to justice that speak to good politics rather than good policy. When prisoners are faceless, it’s easy to turn the screws.

Many of New Zealand’s crime issues are linked to psychological concerns. These can be treated, and there are cogent social and economic reasons to do so. And that’s without considering the moral implications of continuing to punish those whose offending stems from issues that might be beyond their control.

A new era

The challenges facing New Zealand prisons, then, are many and significant, and in recent years Corrections has been trying to tackle them. In fact, the change of approach within the organisation is near revolutionary, and acknowledges a broader political shift signalled in 2011. That year, then Minister of Finance Bill English declared prisons in New Zealand were a ‘moral and fiscal failure’.

The timing of this shift is interesting. By 2011, the Sensible Sentencing Trust’s enticingly simple ‘lock ’em up’ idea had hit a remarkable peak. Political debate around law and order had crumbled to the point of National and Labour simply fighting over who could be the toughest on crime. This directly led to New Zealand’s high incarceration rates, and also the stubbornly high recidivism rates. Overall it was clear we weren’t solving problems, and in many cases it appeared likely we were making them worse.

If a bunch of US bankers hadn’t plunged the world into an economic recession, things may not have changed. But if there’s one thing that tunes the moral compass of a finance minister it’s a global financial crisis. The problems of the prison system were easy to overlook when times were good, but as the economy tanked, the costs were hard to ignore.

As English penned his 2011 speech, New Zealand had nearly 9000 prisoners, each costing about $100,000 annually, and projected growth in the prison muster meant new prisons were needed, the bill for which would come to roughly $1 billion. Locking people up had become such a ubiquitous remedy for our social ills that no politician dared argue otherwise; the political risks were deemed too high. English proved that wasn’t necessarily the case.

While circumstances were ripe for change, the fact that a National Government led it is also crucial. A conservative government is less likely to be pilloried for being soft on crime, and, given English’s then reputation for being honest and sensible, the change in direction had a chance to breathe. Greater funding went to programmes that tackled criminogenic needs or addressed alcohol and drug problems. The aim shifted from simply containing prisoners to looking at ways to stop them from reoffending. Rehabilitation became the focus. The first the public was aware of it, perhaps, was in 2012 when the Department of Corrections set the target of reducing reoffending by 25 per cent by 2017.

The goal shocked many of those in the sector. It was bold, and incredibly ambitious. Ultimately it was also unsuccessful. They achieved just under 5 per cent, and many were quick to point the stick at such a significant failure. I don’t think we should be so quick to condemn the initiative, but rather to see it for what it represented: a more sophisticated way of looking at crime and a realisation that continuing to increase the prison population without addressing the causes of crime is an unsatisfactory end game. It may well have been the fiscal elements that shook English, but the moral element was there as well; both with regard to those imprisoned and potential future victims.

But efforts to address the causes of criminality via rehabilitation are dependent on prison conditions that are suitable for facilitating it. And at the moment the massive growth in prisoner numbers means in many areas this is simply not the case, and Corrections is at a crisis point that needs addressing before anything else is really possible.

Alternatives

To say we have a crisis looming in our prisons is not quite right. It’s worse than that. Our prison muster is rising at a rate scarcely imaginable. If the Auckland housing crisis is the gold-standard example of the realities of demand and supply, our prisons are platinum.

To say we have a crisis looming in our prisons is not quite right. It’s worse than that. Our prison muster is rising at a rate scarcely imaginable.

Corrections is doing what it can to create space, but options are running out. There are only so many double-bunking options, only so many condemned wings that can be brought back into service; things can expand only so far before they go ‘pop’. Difficult decisions confront the new government.

Labour and its governing partners are against building new prisons. Fair play. Who among us can’t think of better ways to spend a billion dollars? Cut taxes, put the unemployed to work, build a giant laser to shoot holes in the moon? Almost anything sounds better than spending money on a prison. But reality dictates we must confront this issue.

Apart from building a prison, there are two immediate alternative solutions to ease the muster pressure. The last government reversed the onus on bail, making it more difficult to obtain. Consequently, remanded prisoners are a significant component of growth in the prison population. They make up about a third of prisoners, some 3000 inmates. That bail policy could be reversed. Similarly, the changes that made parole more difficult to obtain could be rolled back. But if both these were done, the media would focus acutely on any offending by somebody who would have otherwise been locked up — regardless of how atypical that offending was. That political risk is daunting. If bravery is not on offer, creativity certainly needs to be.

One practical solution is expanding electronic monitoring (EM) — something that we’re not exactly shy of in New Zealand. Our use of EM release is trailblazing. Per capita, we use it more than twice as much as the United States and nearly five times as much as England. As a result of this, our monitoring systems are state-of-the-art, and with the falling costs of the bracelets, which essentially have the same components as a cheap cell phone, there’s no reason not to be using them as much as we can. Incidentally, the EM team, which takes up an entire floor at Corrections’ head office in Wellington, resembles less a dusty old government bureaucracy and more a branch of Google. The young bloke who toured me around one day was dressed in skinny jeans and a loose pink tee-shirt. His age and style were typical. Like the personnel, the technology, including banks of screens and sophisticated tracking software, looked like the future.

EM provides some of the benefits of prison, but without many of the harms. While still punishing and restricting offenders, EM often allows people to stay in work and keep families together where appropriate. It’s also a quarter of the cost of imprisonment, and people on EM have lower recidivism rates. While it’s true some people do abscond, those numbers are small and the punishment for doing so is prison.

A more dramatic use of EM, though, will require specific housing options. One serious problem for many people (whether it be for EM bail, home detention, or parole) is not having suitable accommodation. Instead of building prisons, then, supervised accommodation (with therapeutic support) outside the wire could be constructed or acquired. Such options are used in the United Kingdom and elsewhere, and there is a New Zealand template in Christchurch called the Salisbury Street Foundation. If EM were more widely adopted here, such options could extend its benefits to significant numbers of prisoners who would be eligible but for a lack of appropriate accommodation. Ultimately, though, the long-term solutions to our incarceration rates are policies that tackle the drivers of crime, such as intergenerational poverty, overcrowded housing, drug and alcohol abuse, and educational failure; these and other factors are common among offenders. We must focus on those families and communities that we know will supply the next generation of offenders. Until then, we can’t escape the reality that we have to manage our prison muster and manage it fast.

Haste in this instance is necessary, but hardly desirable. New Zealand needs a mature conversation about crime and justice policies in order to garner consensus support, and that doesn’t happen when decisions are being forced. Still, it’s better now than when the crisis goes ‘pop’.

Conclusion

The areas covered in this chapter are just a sample of the issues around corrections in New Zealand, but they are a clear pointer to the diversity and complexity of the subject.

Prisons are, in many ways, a Petri dish where one can identify the ills of society all grouped together. And while prison gives us a second chance in many instances, for example to teach people how to read and write, the greater ills that blight society and are unable to be solved on the outside are unlikely to be tackled behind bars. Given this, the activities of the Department of Corrections must only ever be seen as a partial solution to the problems of crime; dealing for the most part with its symptoms rather than its causes. We members of the public should not be misled into believing any differently, nor should we be lured into the comforting thought that others will solve the problem. Crime is a community issue that must be dealt with within communities. And solving the issues that cause crime within communities is a challenge that must be met by us all.