ANALYSIS
The late Chester Borrows lamented how political appetite to fundamentally change the criminal justice system all but vanished when an election loomed.
“The next thing you know, it’ll be close to another election and MPs will get frightened that doing anything will turn off voters,” the former National MP and minister told the Herald portentously two years ago.
Borrows was commenting on the lack of action following the delivery of the Turiki! Turiki! report three and a half years ago by the Safe and Effective Justice group, which he chaired.
It’s one of a series of reports spanning 35 years that have repeatedly found the criminal justice system to be failing victims, offenders, whānau and communities, and in need of a transformational overhaul. History has repeated itself as each new report sat on a ministerial shelf slowly gathering dust.
Implementing such change is, politically, a hard sell.
You have to bring the public with you, as then-Justice Minister Andrew Little used to say when asked about the lack of action, and the main parties are generally unwilling to diverge from what their focus group research says.
Borrows also used to say that the “public get it” if law and order is properly unravelled and explained, but it’s far easier for politicians to reach for broad appeal by trotting out populist slogans about a party’s relative rigidity towards crime.
This is an understandable tactic.
As crime hogs the headlines, the public in general thinks not only that crime is rising, but that prison isn’t being used enough. It’s not surprising that the controversial Three Strikes law is popular, even though there is no conclusive evidence on its impact.
It’s also easy - and plausible - to claim public safety must have worsened because the prison population has fallen so drastically (though it’s been rising for the last year). But there’s no way to know with any certainty whether this is the case.
Lost in that discussion is that the re-offending rate is falling: 56.5 per cent of those released from prison in 2019/20 were re-sentenced within two years, down from 62 per cent of those released the previous year.
The two-year recidivism rate for those on community sentences - 35 per cent - is at its lowest for 30 years, though this is in part due to lower court traffic because of Covid-related delays.
And for all the plethora of crime statistics, there’s no certainty over whether crime is actually rising, or if it’s, as Christopher Luxon contends, “out of control”.
The statistics paint a pattern, though, and the pattern is that the number of victims has not changed much in recent years when population growth is accounted for.
But there has been a not insignificant rise in the number of acts of crime, especially for fraud and cyber-crime, and for interpersonal violence.
The former category has become easier with technology. The latter indicates that victims of family violence are suffering more and more criminal acts per victim.
More crime per victim is also the pattern in youth crime figures, which also suggest an increasing proportion of youth crime is being committed by society’s most neglected - the chronic “life course-persistent” criminals who experienced trauma and abuse from an early age and repeatedly wind up in the justice pipeline.
Why this is happening is not so simple as a slogan.
There are many interlinked puzzle pieces, from Corrections to Police to Justice and the laws Parliament passes to the way the courts interpret them, and the range of factors that drive crime, including inter-generational trauma, social and economic deprivation amid a cost of living squeeze, household and family instability, and a lack of education.
Then there is systemic inequity: Māori are 5.7 times more likely to have contact with police, and make up 53 per cent of the prison population despite comprising only 17 per cent of the general population. Māori are also more likely to be handcuffed or pepper-sprayed, arrested, convicted, sentenced and imprisoned.
This isn’t going unaddressed, regardless of who’s in government.
The judiciary is pushing ahead with its “transformational” Te Ao Mārama approach, which is its own response to the dust-gathering reports calling for fundamental change. It aims to bring the best practices from specialist courts into the mainstream.
There are indications of a reduction in re-offending from using such courts - including the Rangatahi and Pasifika Youth Courts, and the Alcohol and Other Drug Treatment courts, which steer those who admit their offending away from prison towards tailored community support and rehabilitation.
Research also suggests that greater use of non-custodial sentences in the Youth Court has led to significantly less contact with the justice pipeline among the same cohort as they became young adults.
It’s not like there’s no possibility for cross-party consensus here, which the Safe and Effective Justice group said was so sorely needed.
The great expansion of non-punitive responses in the Youth Court happened under the last National-led government, which also supported piloting and expanding the specialist courts that Labour has continued, and which the Greens and Te Pāti Māori support.
There is already political consensus on improving the criminal justice system for victims, which involves the kind of programmes that have been called for repeatedly: multi-agency, locally led and, where appropriate, whānau-centered.
“By Māori, for Māori” was invented by National, so Luxon claimed bizarrely at the first leaders’ debate.
Such programmes don’t necessarily improve public safety. They still have to be good programmes with good people and sufficient resources on a long-enough timeline.
Rather than playing politics, Labour and National could agree to supercharge this kind of kaupapa and still disagree over where the judicial line should be drawn when it comes to sentencing, and who should get the support of such programmes.
But as the Auditor-General noted, there has been no significant shift in this direction despite good results.
And as the Productivity Commission, government investigations and independent reports have all found, the norm is for public agency silos that don’t talk to each other, and programmes with a short-term budget, narrow focus and questionable accountability.
You need more than a slogan to pick apart this complexity.
Politics is not just about what works. It’s also about what sells.
There is a valid argument that the Parliament represents the people, and if the people want more jail time, then so be it. This is Act leader David Seymour’s territory when he talks about “judicial activism” above and beyond what Parliament’s laws actually say.
It’s a simple message, too. A bad person can’t hurt you when they’re behind bars.
But almost all those in prison - described as an expensive training ground for further offending by chief science adviser for justice Dr Ian Lambie - eventually return to the community, so the question can then pivot to how the harm can be minimised the most over the long-term.
All parties would probably agree that those who can be rehabilitated should be rehabilitated - but this is not so black and white.
Leaving this for the judiciary to decide, even if the sentence may not sit well with the public mood, is also a valid argument. Judges are better equipped to make such decisions given their knowledge of legal precedent and the context of the offender and the offending.
But there is inherent uncertainty: who is the person involved, and what is the quality and availability of support? Are there job or training opportunities?
A serious offender on home detention surrounded by the right support might turn their life around. Or they might go off the rails, which wouldn’t be the first or the last time.
Equally, a criminal serving a longer prison sentence might become a greater danger than if they’d had a shorter sentence. Or they might not.
About the only certainty is that the status quo becomes entrenched in the absence of meaningful change.
And the status quo is a system that, we’ve been told repeatedly, is broken and isn’t serving anyone well.
Derek Cheng is a senior journalist who started at the Herald in 2004. He has worked several stints in the press gallery team and is a former deputy political editor.
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