Prisoners of conscience
The justice system is set for the biggest shake-up it has had in decades. David Fisher talks to Justice Advisory chairman, former National minister Chester Borrows
To hear former National Party minister Chester Borrows talk, crime and punishment is to lift the bonnet of government and to look into the engine of power. Votes are fuel for the political engine and Borrows says politicians know the easy way to get the cheap gas.
“Health and education and the economy and law and order — those are the four big buttons that people vote on,” says Borrows, now chairman on the Labour-led Government’s Safe and Effective Justice Advisory Group.
The group’s role is to lead public conversation on our criminal justice system and find ways to improve it. A three-day summit in Wellington on Monday kicks off the reform process.
There seems little argument that it needs improving. If nothing else, our prison population has soared from 8200 in 2009 to 10,500 this year. Prisons are bursting at the seams despite crime falling. For decades, Ma¯ori have made up more than half the prison population.
There is argument over how to fix the problem. The new Labour-led Government has pledged to cut imprisonment rates by 30 per cent in 15 years. The Opposition is warning against law changes that could lead to more victims of crime.
It could be a shake-up of the justice system not seen since National Party Justice Minister Ralph Hanan toured town halls in 1961 to argue for abolition of the death penalty.
This is why Borrows’ lesson on the machinery of power is important for anyone with a vote. Minister of Justice Andrew Little’s ambition for reform — and quite possibly his political career — will live or die on convincing the public and Opposition leader Simon Bridges is working a “tough on crime” rhetoric that is tried and tested.
By Borrows’ description, law and order is a magic vote-making button employed by governments on their last legs or those who have just come in and want to make big strides.
“They will want to rush across and push that big red law and order button and promise ‘more police’, or ‘get tough on crime’ or be ‘tougher on criminals’ or ‘build more prisons’ or something like that.”
It wins votes but, he says, it’s done with more thought about the sound bite and less thought for the consequences.
Take the “more police” promises rattling around last election, he says. NZ First was in first promising 1800 more police, then Labour offered the same and before long the National Party also seemed to think there should be more police on the street.
More police? Sounds great. Who wouldn’t want more police?
Borrows: “You’ve got to argue really about how valid that is when the real question is what are you going to have those cops doing? How are they going to be resourced and what is the rest of the justice system going to look like?”
He ticks through repercussions not mentioned on the campaign trail.
What sort of plan is it to put more police on the beat without considering how many more beds the Department of Corrections will need?
Our prison system is at capacity and forecast to exceed it. More police means more pressure on a system that has seen spikes in inmate suicide as crowding has become more pronounced.
And what of the courts? Some are stretched at the seams already. Anyone who has spent time in the Manukau District Court can see the “justice pipeline” is pumping people through as fast as it can. And the network of non-government organisations critical to our justice system? Did anyone tell them to brace themselves for yet another shock to the system, delivered care of three-yearly elections and the law-and-order button?
“It’s all a bit ridiculous, really,” says Borrows.
be some dismissal of Borrows’ comments. Some have already described the former National Party MP of 12 years as a turncoat who switched allegiance when Little came knocking.
Borrows is fairly clear-eyed about the mixed blessings and fortunes of his Parliamentary career.
“Under John Key . . . everything was about currency. So if you have currency with the public, you had a voter following yourself and they fitted into a certain demographic; then you were going to get listened to.
“In the justice space, you had me and Judith Collins competing for oxygen at opposite ends of the spectrum. She had more currency than I did with the public and the Prime Minister so she got more opportunities.”
With his Parliamentary career over, Borrows — a former police officer and defence lawyer — has new opportunity through the reform committee to influence an area about which he feels passionately.
He is very aware of how political this could become. He’s been in the midst of such game-playing before. Heck, he’s done it himself. Borrows’ description of the political gameplaying around crime and justice echoes chunks of a report issued in March by Sir Peter Gluckman in his recent role as the Prime Minister’s Chief Science Adviser.
The report — Using evidence to build a better justice system: The challenge of rising prison costs — bucked the established narrative around crime and justice, particularly that locking more people up for longer would make New Zealand safer.
Not true, said Gluckman. Instead, New Zealand’s path has actually harmed our communities. Prisons are “universities of crime”, which have pulled in lawbreakers and locked them into a lifetime of crime.
Gluckman said politics was broken into two simplistic areas — “tough or soft on crime”. He said “tough on crime” had “political resonance” and was “magnified by advocacy groups, media and political agendas”.
It was this “public demand and political positioning” that sent the prison rate soaring. Crime wasn’t filling our prison, he said, but “the increase in prison population is largely driven by these political responses”.
THOSE RESPONSES to which Gluckman refers followed public upset over crimes in the 1990s.
The murder of Otago schoolgirl Kylie Smith, 15, in 1991 saw a petition the following year signed by 270,000 people seeking longer sentences and parole restrictions.
And when Norm Withers’ mum, Nan, 71, was bashed in 1997 during a robbery, he organised a petition seeking a public referendum on violent crime penalties. This time 307,000 people signed.
In 1999, that referendum was held, and the public mood was clear — better treatment for victims of crime and tougher responses to criminal behaviour.
In line with “Borrows’ Law” of incoming (or outgoing) governments, the new Labour administration was quick to please the public with a law change in 2000 that made it harder for some offenders to get bail.
The next year saw the emergence of Sensible Sentencing’s Garth McVicar, who would have enormous impact on how New Zealand grappled with crime and punishment. He would not be interviewed for this article.
McVicar had travelled to Auckland to sit through the trial of Mark Middleton, stepfather of raped and murdered Lower Hutt schoolgirl Karla Cardno. Middleton was charged with threatening to kill Cardno’s murderer, Paul Dally.
When McVicar found himself in front of the cameras, he voiced an indignation that struck a chord with the public. McVicar, a Hawke’s Bay farmer, called Dally a “mad dog” and said they would shoot mad dogs on the farm. He stopped short of saying he wanted to shoot Dally but called on the public to protest against Middle ton being charged.
Decent, upset New Zealanders gathered outside almost every courthouse in the land and the Sensible Sentencing Trust was born.
The next year was an election year. Two weeks before the country went to the polls, the trust organised a march which saw politicians meet protesters carrying crosses bearing the portraits of murder victims.
Throughout its existence, the trust would be aligned with those who had suffered most from violent crime. Surviving family members would often bolster McVicar’s message through media interviews.
And there is no shortage of families who have worked with the trust who back it for giving them a voice on law and order concerns that they believe they previously didn’t have.
Labour returned to government and brought in the Parole Act and Sentencing Act 2002. The laws sent people to prison for longer and made it harder for them to get out. Those laws saw many more people locked up than predicted, and in the mid2000s the Government opened four new prisons to cater for the rising prison population. Then-Justice Minister Phil Goff said it showed the Government was “tough on crime” and had listened to the public.
McVicar continued to rail against those who were “soft on crime” throughout this period.
Borrows: “For a long time media kept running off to Garth McVicar: as soon as he rolled over and said something in his sleep it was reported.
“If you look at that period from about 2005 to 2011, Garth didn’t need to do anything to get in the paper.
“He was reported immediately and people had to respond to it and frequently that was politicians.
“He had a huge effect, based on his public profile.”
In 2008, the National Government came in, promising to be “tough on crime”. Support partner Act intended to be “tougher” on crime, and extracted from then-Prime Minister John Key support for its Three Strikes policy.
Under the law, those convicted of specific crimes — sexual and violent — receive “strikes”. A Second Strike offender has to serve his or her entire sentence. By the Third Strike, a judge is bound (unless it is considered extremely unfair) to sentence an offender to the maximum sentence.
Borrows: “It was a political animal.
It didn’t come out of any sound thinking on behalf of the incoming National Government.
“It came out of a deal where they needed the Act Party to get into government as confidence and supply partners.”
The prison population had risen from around 5500 in 1999 to 8500 in 2011 when Christie Marceau, 18, was murdered. Her killer was out on bail at the time. The Sensible Sentencing Trust aligned with the Marceau family, handled media interest on its behalf and brokered interviews.
It also launched “Christie’s Law” through which the trust and the family called for tougher bail conditions.
An inquest years later found errors by courts, Corrections and police were behind the release of Christie’s killer. But the coverage around the high-profile murder, and the campaign for bail change, happened as National’s hardline voice on law and order, Judith Collins, became Justice Minister. She oversaw changes to legislation making it harder for certain alleged offenders to get bail.
And that’s when the prison population really took off.
IN 1999, when the referendum on penalties was held, our prison system cost the taxpayer $382 million. It owned prisons and other assets worth $540m. Today, Corrections costs the taxpayer $1.3 billion and it has assets worth $5b.
Numbers rose from 5600 in 1999 to the present 10,500. The soaraway prison population has defied carefully calculated projections by the Ministry of Justice, needed to plan budgets and prison bed numbers.
So many law changes introduced so many variables that prison planning became a matter of “best guess”.
There are also about 35,000 people serving sentences in the community.
Latest figures show the United States has the highest incarceration rate in the OECD, with 655 people locked up for every 100,000 citizens. But measured against nations to which we most compare ourselves, those to which our crime rates (and trends) are not dissimilar, our imprisonment rate is much higher.
The United Kingdom imprisons around 140 people for every 100,000 citizens. Australia imprisons 167/100,000. For every 100,000 of our citizens, New Zealand imprisons
220 people.
The starkest statistic to strike anyone studying prisons in New Zealand is that of Ma¯ori. At any given point, Ma¯ori make up around 55 per cent of the prison population, yet only 15 per cent of the population. It has been so for decades.
If Ma¯ori were imprisoned at the same rate as non-Ma¯ori, the Government would surpass its goal — the prison population would drop below
6000 people.
Gluckman describes a perfect storm of upheaval and misery that contributes to the dire state of Ma¯ori incarceration, from colonisation, through to the problems experienced by children growing up in communities stricken by poverty, “poor educational outcomes, high-risk substance use, unemployment” and ultimately crime.
What research exists has also found racial bias in the criminal justice system.
There have been efforts to incorporate tikanga Ma¯ori pathways out of prison and away from crime. Recent doctoral research by Riki Mihaere points to the failure of a Pa¯keha¯ system trying to deliver Ma¯ori solutions. Even if those efforts are successful, inmates are simply released back into communities more heavily afflicted by the drivers of crime than any other.
All this takes place against what Victoria University criminologist Professor John Pratt considers a peculiarly New Zealand problem — what he calls the “dark side of paradise”.
In 2005, Pratt published research in which he attempted to explain why New Zealand locked up more people than comparable nations despite similar or lower crime rates.
He described a post-colonial cultural heritage middle New Zealand would recognise and relish — a “good-hearted” and “tolerant” nation renowned for friendliness and hospitality.
It came from the “Better Britain” that settlers — colonists — sought to create on the opposite side of the world.
Those who settled came to a land which left behind Britain’s class distinctions. The “airs and graces” of Britain were gone, replaced by a casual informality that endorsed our egalitarianism.
The state was the glue that held it together, then and now. It assured New Zealanders of these new rights and needed those New Zealanders to help it function.
We attended meetings, stood for drainage boards, neighbourhood committees — Pratt wrote of our “open and transparent” society and the ease with which citizens would put forth opinions on whatever the government might be planning.
But it meant New Zealand developed as a society with a “crushing conformity” with “intense levels of ... control and fear of appearing different”. There was a “fear of not belonging to and ... being rejected by” a society in which all sought to be each other’s equal.
Pratt said “the famed qualities of friendliness and openness have been denied to those who were outside its narrow parameters of acceptability”.
And so, “New Zealand was never intended to be opened up as a paradise for all-comers” and “the desire to defend paradise led to a marked intolerance of those who threatened the social cohesion”.
It meant “the friendly welcoming society could also be punitive and exclusionary”, and in doing so imprison those who did not fit in.
Pratt said the economic and social changes of the 1980s unbundled many of those bonds that held middle New Zealand together. The security and stability sought in a “Better Britain” were eroding and then gone.
As the ground moved beneath the feet of a society, crime and punishment was one area in which the community could find “cohesion and uniformity”.
“Here, at least, is an area where nearly all agree that difference is intolerable and needs to be removed.”
It emerged, said Pratt, through angry voices on talkback, single-issue political parties given life through MMP and angry voices on talkback.
This was the dark side of paradise, Pratt said.
“It is as if the prison has become a symbol of reassurance and security in a society that has become more insecure and punitive as the vision of the paradise it was thought to be has clouded over.”
FORGET THE history, forget the
statistics.
It comes down to two politicians. Andrew Little and Simon Bridges. The Labour leader who stood down and the National Party leader who stepped up.
Bridges isn’t National’s justice spokesman but he has staked his claim with authority on the issue through his pro-politics role as a Crown prosecutor. He sent people to prison for a living, working cases hard and pushing for tough sentences.
The new National Party social media video introducing Bridges to the nation makes much of his credentials, and he has spoken on crime and justice on his getting to know you tour of the country.
Bridges rejects any suggestion he might play politics on the issue.
He sat on the Crime and Justice Select Committee, which Borrows chaired, and says: “He knows from my many years of dealing with him that these are views I have genuinely and sincerely held since prior to my time as a Member of Parliament.”
He’s not going to the Crime and Justice Summit next week — Little’s landmark event intended to kick off the reform process.
A number of MPs handling relevant portfolios will attend, but Bridges is dismissive.
“It looks more like a yoga class than a criminal justice summit, with sessions on individual reflection and hope.”
His messaging is fixed. He wants safer communities and fewer victims of crime.
Rehabilitation, reintegration into the community — he says work in these areas has his support, if the ideas are sound. He’s open to new pathways for Ma¯ori offenders.
“When it comes to education, training, mental health, welfare, social investment — we’ll be there on that. But if it’s just softening up the bail, sentencing and parole laws, we won’t be.”
Bridges says Little is caught in a bind — he has pledged to cut the prison population by 30 per cent in 15 years, won’t build more prisons and so will have no other option other than to let people he considers dangerous out.
It’s a chain of events at odds with assurances from Little that public safety comes first and that he believes in prison for dangerous offenders.
Bridges says: “We should try and grapple with the root causes of these issues rather than just let the offenders out on the streets so we have more victims in our community.”
He is coming at this issue after nine years in government. In that time, the prison population soared (“a failure for the prisoners and also for wider society”) and during which Corrections managed to reduce recidivism by 5 per cent, missing its 25 per cent recidivism reduction target (“at least we set targets”).
Bridges doesn’t have reasons for the high rate of Ma¯ori imprisonment (“I’m not a sociologist”), can’t explain why New Zealand’s imprisonment rate is among the highest in the OECD (“that will always be the case”) and says the Three Strikes law is having a deterrent effect (even though Gluckman’s research shows that deterrence doesn’t work and the Ministry of Justice has said its figures don’t show that).
“I don’t do this for politics. I do this because I believe it and I know the harm that will come if we simply do Andrew Little’s 30 per cent reduction by softening the laws.”
If there are law changes, and an exceptional event occurs with tragic outcomes, will Bridges point the finger?
“It’s not about that kind of cheap shot, but it is about the real consequences of his actions as minister overall.
“I’m sorry, I call it like it is. If the bail-sentencing-parole laws are softened up, there will be many more victims of crime that he and Jacinda Ardern will be responsible for.”
Bridges’ concern goes like this — any law change that leads to someone convicted of a crime spending less time in prison creates the possibility that person might offend when they would otherwise be locked up.
Those advocating reform are aware it could take just one horrific case seized on by law-and-order advocates, one victim’s family speaking through media, to spark an outcry and place massive political pressure on Little’s plans.
When murderer Graeme Burton killed again while on parole in 2007, the Sensible Sentencing Trust used the case as justification to call for scrapping of parole. Inquiries later found failures by the Department of Corrections rather than problems with the parole system.
Such cases are called “sentinel events” — unexpected, exceptional situations resulting in serious injury or death.
Gluckman’s report detailed how such high-profile events led to “populist, eye-for-an-eye” calls for harsher “retributive justice”. Such events were seized on by advocacy groups which provided media with “vivid images and experienced media spokespeople for victim’s stories”.
Media coverage would provide the public with “alarming themes” and reporting tended to treat “highly unusual cases … as if they reveal general truths about the state of society.”
Meanwhile, “data on the actual patterns and causes of crime are rarely covered”.
Gluckman cited research showing such coverage would “disproportionately influence” the public’s view of the risk they faced, the result being groups in society (those over 50) believing crime was increasing when the truth was actually the opposite.
Borrows says these groups are more regular voters — he cites Grey Power and RSA members as a political focus for “tough on crime” messages.
“Sentinel events have had a huge part to play in the making of laws,” he says. “One of the things that lawmakers say is you should never base a law on one single event — and then they set about doing it because they want to reassure the public.”
The reform committee has recognised the influence of media, with an approach by University of Canterbury criminologist Dr Jarrod Gilbert to the Media Freedom Committee — made up of editors across the country — to discuss how crime is reported.
Little knows it is coming. “Once we start making changes, particularly law changes, perhaps different sentencing options, if something goes wrong, it’s a cheap political allegation to make and I fully predict that would happen.”
But he says he has no choice. He’s not there to mark time — there was plenty of that in Opposition.
And look at those people inside prisons, he says. So many mental health issues, addiction problems, family violence and inmates who are themselves victims of crime.
“If I don’t follow my conscience and my political obligations to say we can do different things and better things and achieve better results, I’d be failing.
“I consider I have a duty to embark on this and get debate going.”
When Little talks of what he wants to achieve, he gives the same message as Bridges — safer communities, fewer victims of crime.
From Little’s perspective, Bridges’ solution simply breaks further people who are already broken, leading to more offending and more victims of crime. Prison might lock up criminals — but almost everyone gets out eventually, and what sort of person does New Zealand want released?
Borrows might be out of politics but is very aware of how it could unfold. “I see this as a very apolitical issue. I think it’s so big and so important that we shouldn’t draw political lines over it.
“At the same time I acknowledge guilt at having happily pushed that law and order button back in 2008 and being part of that. So I recognise that’s a flaw in the political scheme.” It’s not going to be easy. “Everybody is just trying to scramble to the top of the heap and not thinking about what are we actually doing for those future generations in terms of making a safer New Zealand?” says Borrows.
“I can only hope people will be prepared to put politics aside in favour of what’s best for the country, long-term, and not what’s best for their chances at the next election.”