Unequal impacts of plan to scrap ‘cultural’ reports

Tara Oakley

Section 27 or “cultural” reports have been described by the incoming government as written by “individuals without expertise or qualifications” and as “designed to influence judges to deliver lighter sentences”.

This understanding appears to form the basis of the National Party policy to remove funding for written reports. It also suggests a misunderstanding of the intent behind the Sentencing Act and the rise of written s 27 reports.

S 27 (and its predecessor, s 16 of the Criminal Justice Act 1985) arose from an urgent need to address inequitable criminal justice outcomes for Māori. It was based on evidence proving the failure of prison sentences to prevent recidivist offending and sought to prioritise community-based redress and rehabilitation whenever possible.

The initial vision was of whānau directly addressing the Court. In practice, however, this vision stumbled. Judges were ambivalent about whānau speaking in Court; whānau had little faith in criminal justice system processes; offenders often had no whānau willing or able to speak for them.

For more than 20 years, section 27 of the Sentencing Act was consequently dormant.

Written reports subsequently appeared in 2017 with the aim of facilitating whānau voices in Court. They are available to, and used by, all ethnicities. Well-written reports include as much whānau and community verification and insight as possible, drawing on medical, social and State records where they can.

Writers come from a range of academic and professional backgrounds. Sentence Equality, for example, is a collective of graduates from law, criminology, sociology, anthropology, education and health disciplines.

Reports seek reasons, not excuses, for offending behaviours. They propose action, not sentencing discounts. They are invaluable sources of critical biopsychosocial data regarding key drivers of offending.

These drivers include the substance abuse disorders, mood disorders, personality disorders, neurodivergence, learning difficulties, illiteracy, brain injuries, poverty and trauma that are rife amongst offenders. One-third of children placed in State care between 1950 and 1999 went on to adult prison; for Māori, this figure increased to more than 40 percent. The Department of Corrections notes extraordinary rates of family, sexual and violent victimisation amongst prisoners over their lifetime. Populist rhetoric about choice ignores the extent to which trauma begets behaviour.

With funding for written reports removed, Court access to this data is limited and s 27 provisions available only to those with access to private financial resources. Wealthier groups would have a greater level of representation in Court than those in poverty.

■  Tara Oakley (Ngāti Tāwhaki, Ngāi Tūhoe) is lead report writer for Sentence Equality.