Election 2023: Concern over prison remand numbers, and what politicians plan to do about it - ‘You come out angrier’

While New Zealand's imprisonment rate has dropped in recent years the rate of remand has increased dramatically. Photo / NZME

The presumption of innocence requires a good reason for remanding someone in custody. Yet due to court backlogs and bail law changes remand has exploded and is now 40 per cent of the prison population, and is on track to pass the sentenced population by the early 2030s. Michael Neilson looks at how this came to be and what politicians plan to do about it.

Tommy Doran says he was an angry young man. He was addicted to methamphetamine and resorted to pretty crime to fund his insatiable appetite.

He was caught, and, it not being his first time, sentenced to prison.

Before sentencing he spent several months on remand, confined to a cell 23 hours a day, with no access to rehabilitation or support.

“Sure, you’ve got time to think about your actions, but I’m going in with unwell behaviours and unwell thought patterns, blaming everybody else.

“So I’m not just going to magically turn the page. I’m just going to sit there seething, simmering and thinking about who’s fault it is. I’m going to come out angrier.”

Doran went back to prison several times, with varying stints on remand. He was never able to access rehabilitation. And he’s not alone.

New Zealand’s custodial remand population has exploded in recent years.

In 1960, 3 per cent of people in prison were on remand; in 2022 40 per cent were.

Remand is used while people are waiting for a trial or sentencing. People can either stay out of prison – remanded at large or on bail with associated conditions – or they can be remanded in custody.

Graph showing how the number of people held in custodial remand in prison has changed. Photo / Ministry of Justice

Remand in custody may be made when there is a risk the defendant will offend on bail, will not appear in court, or may otherwise interfere with the process (such as intimidating a witness).

Experts say that any time someone is remanded in custody before conviction is a “cause for concern” as the presumption of innocence and right to a fair trial requires that there is a good reason for remanding someone in custody.

Data released to the Herald under the Official Information Act shows a growing proportion of those on remand have eventually been found not guilty or have had charges dismissed.

In 2014, 10 per cent of people held on remand were found not guilty or had charges dismissed, equating to just over 1000 people.

In 2022 this had risen to 16 per cent, or just under 2000 people.

There were also regional issues - Waitematā had the worst rate, with 22 per cent of those held on remand not being found guilty or dismissed.

Another major concern was that long periods on remand reduced opportunities for people to access rehabilitation programmes once they were sentenced.

There were currently difficulties as remand and sentenced prisoners were unable to mix, with the focus due to a lack of resources going to those sentenced. Accessing rehabilitation while on remand could also be seen as an admission of guilt, and used as evidence against someone.

Other data provided to the Herald shows increasing numbers of people on short sentences - two to three years or less - spending nearly their entire sentence on remand, meaning they have less time to access rehab options.

And like much else in the justice system, Māori are disproportionately represented.

Māori men are held on custodial remand at nearly nine times the rate of non-Māori.

Corrections data show Māori men are getting imprisonment sentences (excluding remand) at the lowest rate in the past few decades - from 1.3 per cent of the total population in 1991 to a high of 1.6 per cent in 2007 now down to 0.8 per cent in 2022 (the rate for non-Māori men now is at 0.13 per cent, over six times lower).

New Zealand’s imprisonment rate overall has dropped from one of the highest in the OECD to the middle – a reduction had been a goal of former Labour Prime Minister Helen Clark’s near the end of her time in office, and even under the following National Government in which Bill English lamented prisons as a “moral and fiscal failure”. Despite this, Clark oversaw the largest increase in the prison population. (At the peak in 2007 nearly 2 per cent of all Māori men were imprisoned - including remand. It has now dropped to 1.4 per cent, while for non-Māori men it is 0.2 per cent.)

Doran is clean now and is a postgraduate student in criminology at Te Herenga Waka, Victoria University of Wellington. He works as an addiction recovery coach and is also co-host of Voyager media award-winning podcast True Justice, which looks at the experiences of people imprisoned and investigates alternative justice systems.

Dora said long-term trends about remand were “really worrying”, particularly due to the lack of rehabilitation programmes.

Due to resourcing issues and impacts of Covid-19 restrictions, most rehabilitation programmes were only available to sentenced prisoners.

“[Those on remand] often end up getting out and they haven’t done any programmes,” said Doran.

“When we go in we need our health and brains rewired.

“People think you just get locked up, and then you just go, ‘I don’t want this to happen again. I won’t do it again’.

“It doesn’t work like that.”

According to a Ministry of Justice long-term insights briefing, the remand population has mainly started to grow since 2000.

Changes to the Bail Act - driven by public concern over bail breaches - and new reverse onus provisions meant fewer people were being granted bail, meaning they were instead remanded in custody.

The largest contributors to this growth were an increase in the use of remand in custody for people charged with family violence offences, and people placed before the court for reconsideration of their bail status following breaches of bail conditions.

These increases occurred alongside general improvements in the capture of data by police and increased availability of information and intelligence to front-line police and prosecutors.

The impact of these changes was compounded by cases taking longer to progress through the courts.

This meant longer spells in custody for some people. It also increased the opportunity for defendants on bail to accumulate sufficient bail breaches to reach the threshold for remand in custody and increased the window of time available for new offending to occur.

Officials also warned Māori over-representation in prison and on remand could remain high in the decades ahead.

“If current trends continue, we are likely to face a future where Māori over-representation remains high in the decades ahead.

“It is also possible that Māori over-representation could increase if future changes within the criminal justice system, and in other sectors, impact unevenly on Māori.

“While New Zealand’s population is ageing, Māori will have a younger age profile than the general population through to 2050.

“While fewer young people are likely to be imprisoned in coming decades, the different age structures across New Zealand’s population could contribute to disparities in the prison population.”

The Waitangi Tribunal’s Tū Mai Te Rangi! report underscored that Māori overrepresentation within the justice system has its roots in colonisation and recommended a concerted strategic focus on Māori reoffending, measurable targets and dedicated resourcing.

“It will continue to be important for the justice system to respond to the level of Māori over-representation across coming decades, and to work with whānau, hapū, iwi and other Māori groups on approaches that improve outcomes, including in areas where there are disparities, such as maintaining bail and parole,” the report said.

This report also emphasised that significantly reducing Māori over-representation would require approaches that grapple with its root causes across multiple sectors.

“Effective responses to Māori over-representation would require the ongoing and long-term participation of the economic, health, social and education sectors. Relationships with whānau, hapū, iwi and other Māori groups within the criminal justice system, and more broadly across government, will continue to be key as we look to the future.”

The political response

Justice Minister and Labour’s justice spokeswoman Ginny Andersen said delays the Covid-19 pandemic imposed on the courts was the main reason for the backlog in cases being heard and more people being placed on remand.

There was also a “significant increase in the number of complex jury trials taking place”, along with a rise in defendants opting for jury trials.

Andersen said Labour had a range of initiatives already under way to speed up processes and if re-elected would increase use of audio-visual technology (National has a similar policy).

“The quicker we speed up the process through the courts, then the quicker we can bring that remand population down. Part of that was $27 million specifically for police prosecution so that we can assist in getting court cases heard.”

She added some courts were sitting during the evening to increase the number of cases being heard.

Asked if she was comfortable with the current number of people on remand, Andersen said she was not.

“It needs to come down, it’s not good enough. It’s not okay to have that many people waiting on remand.”

Corrections Minister Kelvin Davis in Hawke's Bay Prison, Mangaroa, in December 2021. Photo / Paul Taylor

Corrections Minister Kelvin Davis introduced a law change to provide for equitable rehabilitation and reintegration outcomes for Māori. It passed its first reading in August, but without support from the Greens and Te Pāti Māori who were concerned about mixing of sentenced and remand prisoners.

Davis’ bill would also allow the limited mixing of accused and convicted people in prison for kaupapa Māori, educational, religious, and therapeutic programmes.

National and Act supported the bill at the time but called for a broader approach.

National wants all remand prisoners to be able to access rehabilitation programmes, while Act wants to require a minimum literacy standard before parole can be granted.

National also pledged to set targets for the rehabilitation of prisoners and assist NGOs, iwi and community groups delivering rehabilitation programmes in prison.

National has a justice policy to reduce court times, which in theory should address the remand backlog, but hasn’t listed a target and hasn’t allocated any specific funding or resources. National has also listed the Ministry of Justice as a government agency slated to have a funding cut of 6.5 per cent.

The Greens also want more rehabilitation programmes available to those on remand, but have voiced concerns about the mixing of sentenced and remand prisoners, and the different age groups.

Te Pāti Māori meanwhile wants to repeal the Bail Amendment Act, which has contributed to the rise in the remand population.

Doran was critical of National and Act’s plans to increase the prison population, but he was also critical of Labour, which had worked to reduce the prison population but due to court issues had dramatically increased remand and hadn’t given much support to those on community sentences.

“National, Act, have their whole reactionary, fear-mongering style of politics.

“But on the other side, too, much more support is needed for people being kept out of prison.

“We need to be putting money into stable housing, addiction services, anti-violence services, anger management.

“We need to have capacity, not waiting lists, where people are just sitting around.”