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The Nation: A justice special

On Newshub Nation: a justice special

Lisa Owen interviews a special panel of guests: criminal defence lawyer Stephen Bonnar QC, Paul Dennehy from the Corrections Association, former inmate Alex Swney and Lance Norman of Hāpai te Hauora.

Lisa Owen: A highly critical report on our justice system says policies based on panic and dogma have resulted in a broken system. The report, released by the Prime Minister’s chief science adviser, suggests that New Zealand’s overflowing prisons are extremely expensive training grounds for further offending and that recruitment centres operate there for gangs. It also says there’s no good evidence that our high imprisonment rates are helping the victims of crime. Now, on Radio Live Drive, Sir Peter Gluckman told me what’s needed is an apolitical discussion based on evidence but that New Zealanders aren’t good at having civilised conversations on complex matters. So today we’ve accepted that challenge, and I’m joined by criminal defence lawyer Stephen Bonnar QC, Corrections Association vice president Paul Dennehy, Hāpai te Hauora chief executive Lance Norman, and former prison inmate Alex Swney. Welcome to you all this morning. Thank you for joining me. Can we start with what is a seemingly basic question but goes to the core of this, Steve — what is the purpose of prison?

Stephen Bonnar: Well, it should be about rehabilitation and reintegration into society, but over the last 30 years or so, it’s just become more and more about punishment.

Alex, what do you think?

Alex Swney: Unquestionably, apparently, it’s supposed to be — first to third — deterrent, then rehabilitation, then reintegration. But it’s overwhelmingly — and the statistics show this — it is all so punitive and so negative and so destructive. So we like to think that it’s rehab. It’s not. It’s just a miserable, punitive, negative experience.

Paul, what do you think?

Paul Dennehy: Well, I agree with Steve. It should be the environment for rehab and reintegration. From our perspective, it’s not an environment where we think it’s a punishment, as such. The punishment has already been metered out to the person who’s come to prison.

Loss of freedom, you mean?

Dennehy: Loss of freedom. So our staff, their job is to manage the people in front of them safely and securely, humanely, and ideally with a view to making them better people when they are released into the community.

Lance, do you disagree with any of that?

Lance Norman: I agree with all of that. Obviously, if you’ve done a crime, there needs to be some sort of repercussions, and incarceration is that, but you need to go there, you need to be rehabilitated, and you need to be reintegrated back into the community, and unfortunately we’re not doing either one of those very well at the moment. But not only are we not doing it on the way out, we’re not doing it on the way in either.
Okay, well, let’s talk about what it’s like now so we can talk about what changes might help. Paul, how bad is it in terms of overcrowding?

Dennehy: It’s bad. I mean, yesterday the prison muster was something like 10,726. Capacity is not much greater than that. We are double bunking every prison facility that we can. We’re looking at extending facilities, creating new builds, because the prison population is just increasing.

And what are the repercussions of that? What does that mean for the people in the prison and the people working in the prison?

Dennehy: So, obviously biased — the people working in the prison are our priority. They’re faced with increasing numbers of people housed in an environment perhaps set for one — double bunking — increased violence, tensions, frustrations. Staff are working exceeding long shifts — up to 10 days in a row. The environment that they try and make a better place for the prisoners is one that’s at bursting point. From the prisoners’perspective — overcrowding, tension, frustration, a lack of ability to perhaps get on to those rehabilitative programmes.

So undoubtedly, in your mind, double bunking and overcrowding is dangerous.

Dennehy: Very much so.

Alex, is that an environment that encourages people to go from bad to good?

Swney: No. It’s anything but. It just embitters them. That sort of proximity, it’s a dehumanising environment. Sure, it’s hard for the guards, and I know there are plenty out there who think it shouldn’t be easy for the prisoners. We’re not talking about it being easy for prisoners; we’re just taking about it being humane. And if we really are a… We like to think we’re this progressive, liberal society, but when we go to this part and look at this aspect of our society, we, frankly, are miserable.

You have actually written a submission, if you like, to the Justice Minister. I’ve read it, and in it, you say that you had not seen violence and intimidation like this before in your experience.

Swney: Yeah. Yes. I used to say I don’t need to go to Antarctica to know it’s cold. It’s cold. But you do need to go to prison to know what prison is like, and if it wasn’t so frightening, it would be fascinating. It is this unreal environment that you just can’t imagine. It attacks you in every way. And I know there’ll be people out there saying, “Oh, look, you’ve done wrong. If you can’t do the time, don’t do the crime,” but the problem is it’s supposed to be something that springboards these people back into our societies — constructive members — and it is doing anything but, because it is such a miserable environment.

Okay, well, let’s address that issue. Lance, Alex is saying there’ll be people — and he’s right — saying prisoners deserve this. “You did the crime; do the time. It’s punishment that you’re getting.” But evidence shows that it’s not working, so I’m wondering, how does the government convince the voters that this is not the right thing?

Norman: Firstly, you’ve got to take a step back. New Zealand is a society that hasn’t addressed the following issues — poverty, homelessness, social deprivation, family violence, gangs, unemployment, inequalities in a lot of areas. So because we have that in our society, that’s a breeding ground for crime, so if you want to address these issues, that’s where you’ve got to start. You’ve got to start addressing those issues. Then you’ve got to look at the whanau who are in prison. A lot of these people have numeracy/literacy issues. They might have been born into foetal alcohol syndrome. They potentially could have mental health issues. We know a huge amount have traumatic brain injury. So they’re actually going into the wrong system. They’re going into a justice system, and they should really be going into a health system.

So there’s a whole bunch of people in prison at the moment that you believe don’t belong there.

Norman: Correct.

Other facilities.

Norman: So not only do they not belong there, when they’re going there, they’re not getting the appropriate support mechanisms to help them rehabilitate, because they don’t have the appropriate brain rehabilitation organisations or the skillsets to deal with mental health issues or the behavioural issues that the community has within the prison system.

Yeah. You nodded your head. Do you agree that there are a lot of people in there that are better served somewhere else?

Dennehy: I do. In that report, I think it said there’s 91% of all those within prisons have got mental or substance issue problems. We’re faced with dealing with persons who are sent to prison. We don’t have the training to deal with people with mental health issues. I will just follow up on one of Alex’s comments — staff within prisons don’t see that they need to punish people within the prisons on a daily basis. They’re there to manage them. The punishment’s already been metered out. It’s not our job to punish anyone any further. But I think that there are many people within the prison environment who should be elsewhere.

Yeah. Okay, Steve, one of the issues that has arisen is that we tightened bail laws as a country in 2013, roundabout, and that’s led to a big increase in the prison population in terms of remand prisoners. So do we need to change those laws back, or what would that look like?

Bonnar: I think there is no doubt that we are sending far too many people to prison. I mean, that’s generally. Then you look at the Maori population in prison; that’s a disgrace. And it’s just that we’ve had 30 years of governments, political parties of all hues, outbidding themselves on tough-on-crime policies because they see it as vote winners. What we do need to do is depoliticise the debate about criminal justice. We need to be mature enough to talk about it in an apolitical sense rather than in a vote-catching sense. And to that extent, I congratulate the current Minister of Justice, Andrew Little, for having the courage to actually say some of these things that he’s been saying the last few weeks, because it’s the first time in my career that I can remember a Minister of Justice having the courage to actually say, “We need to be talking about this stuff, and we need to be dealing with it in a different way.”

Lance, Steve’s raised there the fact that he thinks it’s disgraceful, the number of Maori people who are in jail, and they’re overrepresented at all stages of the justice system. That suggests conscious or unconscious racism or bias. How do we change that?

Norman: I’m not sure if there’s such a word as unconscious racism. I think it’s just racism.


Norman: That’s what I call it. How we change it is you’ve got to acknowledge there has been major hardship for Maori in Maori communities over history. There’s been land confiscation, there’s been loss of language, there’s been loss of culture, there’s been negative policies for a number of times. And then you have urbanisation, etc., etc. And when I go back to my original point where we have domestic violence, we have unemployment, we have social deprivation, we have poverty —predominantly Maori are over-represented in that space as well. So if you wanted to address the whole system to change, address all those leaders that go into the prison system. Look at the corrections and the justice system. It needs a major overhaul. When Maori go to jail twice as much as non-Maori for exactly the same crime, that’s not unconscious racism; that’s racism, so there needs to be conscious efforts to say, “How do you reverse that?” And then how you reverse it is you include Maori in that conversation. Restorative justice programmes work very well. They’re cost-effective. They’re good for the victim and the perpetrator; that’s what the evidence says. So there are other methodologies of doing it. Don’t lock away Maori for low-level drug offences or fines. There’s other ways of dealing with that, rather than, as you were saying, being punitive on every particular crime.

And similar to what you were touching on there is strong whanau connections, strong family connections. You were mainly in a jail in South Auckland, Alex. How many hours a week were you allowed visitors?

Swney: Oh, it was only a fraction of an hour. It was 45 minutes a week.


Swney: So let’s think about that for a moment. You’ve got a situation where we know that, upon release — and the vast majority of these prisoners are going to be released, so they’re going to be somebody’s neighbour — your chances of reoffending are vastly reduced, they’re reduced to a factor of 8:1, if you are returning to a strong whanau and support network. The best way of maintaining those sorts of networks, those sorts of relationships, is through visits. And New Zealand’s most modern prison has got the worst visiting regime, so I could not get my wider network involved in my time there because they would only ever be coming at the expense of my family, and I was never going to deny them that, of course.

Yeah, 45 minutes a week. I’m just wondering, is that because of staffing issues, Paul, or is that the way it works?

Dennehy: I’m unsure, because that’s a private provider, unfortunately, so I don’t know how they run their regimes there. Elsewhere in the prison system — certainly Otago, where I’m from — two hours a week is what a prisoner could expect.

Right. And still, that’s not much family contact when family ties are what you are partly saying brings people back on to the straight and narrow. I want to talk about gangs before we go to the break. Paul, gang members reoffend at nearly twice the rate of other people. I mean, how’s the problem being managed in jails? They’re supposed to be gang-neutral environments. What can you tell us about that?

Swney: They’re anything but. Come on.

Dennehy: I’m not sure you could have a gang-neutral environment. The gangs are a problem. They’re a problem within prisons. They’re a problem in society, because prisons are a reflection on society. How they’re being managed is we keep them separate as much as we can.

Is it working? Is what you’re doing working, do you think, in that space?

Dennehy: I think it is to a certain—

Swney: It’s not.

Dennehy: Well, I think it is to a certain extent, because otherwise there’d be more incidents of violence between gangs.

Okay, Alex, you think not. What’s your impression?

Swney: The gangs prosper. The place is run by gangs.

In what sense?

Swney: Oh, this is their family; this is the safety net they have; this is what they know, and so there are a dozen families, a dozen gangs, and they’re just all pervasive throughout the whole prison system. We’re just fooling ourselves. We need to acknowledge the reality of this. We can’t hide behind these platitudes. I’m sorry. The place is broke. We need to fix it up. It starts back in the community. You are not a health worker. There are way too many patients in there, not prisoners. Who would blame anyone responding to a gang environment? We’re human beings; we cry out for social contacts and connectedness, so it’s naïve to break them down. It’s better to work with them. Some of the safest wings were where officers were working with constructive gang members and working with a gang rather than against a gang.

Alright. We’re going to have to go to a break shortly, but very quickly, Steve, Corrections has an operating budget of about $1.4 billion. How much of that do you think should go towards prevention and rehabilitation? At the moment about 14% goes to rehabilitation and reintegration.

Bonnar: I’m no expert. I don’t hold myself as an expert in how Corrections should spend its money. But you do look at some of the Scandinavian countries that put much more of their resources into rehabilitation programmes than they do into jails, and they have the lowest recidivism rates. Now, I don’t know what the figures should be. I know that it’s roughly $100,000 a year to incarcerate a prisoner full-time. That’s $100,000 that I think you could send at least four of five people through drug rehab.

Alright, we’ll talk more about that after the break.

Welcome back. We’re discussing the justice system with Paul Dennehy, Lance Norman, Alex Swney and Stephen Bonnar. Lance, research suggests that targeting at-risk kids early can reduce the risk of them becoming criminals. You’re doing work around that area. Is that where we should be spending the money?

Norman: It’s totally where we should be spending¬— Everything should be a preventative methodology. So we know that truancy is a lead indicator for potential incarceration. So not every truant is going to prison, but there’s a high likelihood people who are in prison have been regularly truant. So if we were to focus on that and get our kids back into school — firstly, they’re getting an education achievement, which is positive; but secondly, we’re reducing that flow into the prison system. So we need to invest heavily in preventative and strength-based initiatives prior to getting into the system. Once you’re in the system, it’s just a management of which pathway you’re going through, but you’ve got to try and minimise how you get people into that system.

Some people regard that as profiling. You know, it makes people uncomfortable. What’s your view on that?

Norman: See, you might call it profiling; I call it needs assessment based on what the community requires. If the community requires better social support mechanisms or cheaper health systems or better education pathways, and a particular grouping happens to be in that grouping, that’s not profiling. That’s just supporting a community based on the needs of that community.

Alex, about 70% of prisoners, Corrections says, go through rehab courses a year, but we still have these terrible reoffending rates — about 49% of all released prisoners bounce back within five years. So what’s wrong with the rehab that’s being offered?

Swney: Well, it’s very superficial, to be honest with you. It’s ticking the boxes. It’s justice by ticking the boxes. And they’re being played too, you know? People just do it to get out. It’s all with a view to getting out. So, all I see here — Lance, this is gold, what we’re getting here — but out there in New Zealand, the narrative is owned by these ambulance chasers with this way outdated view of looking for the next sensational case and the next victim in court and what we’re going to go and do to the perpetrator of the crime, rather than looking— we need to acknowledge the victim’s plight, and there’ll be a deterrent element in the prison— but we need to look at that prisoner and how they ended up there. Their path there was inevitable in so many cases. As a society, we need to think how did— the average reading age there of between 7 and 8 years of age, it’s no wonder that person arrived there. So as a society, we need to be saying to ourselves, ‘We’ve let these people down, and they have ended up here. Now we have to make it better.’ And I can just see them rolling their eyes. Frankly, it is just dumb politics that says being tough on crime is building more prisons. Look, we need to draw a line in the sand, New Zealand, and say, ‘Do not build Waikeria. Do not build this extra prison out there.’ That will be like an obese person letting their belt out, thinking they’re losing weight. We will fill it. Our incarceration rates are already 50% higher than our convict neighbours across the ditch who cheat at cricket, you know? And we want to go and get worse.

Bonnar: And, look, no one’s suggesting that you don’t need prisons for the worst offenders and for the safety of the community, but the issue is we are imprisoning people who don’t need to be imprisoned.

Well, who doesn’t need to be there? What prisoners—

Swney: The person that stole $40,000 worth of honey yesterday.

OK, so what prisoners would you, kind of, suggest are better served by other sentences?

Bonnar: I think we need to have a good look at drug sentencing. The length of sentences which are being handed out for drug dealing offences— and, look, I’m not suggesting that drug dealers don’t—

…deserve some kind of punishment?

Bonnar: …deserve some kind of punishment, but we’re getting lengthier and lengthier sentences. The war on drugs, so to speak, has not worked. We’ve lost that. We’ve been incredibly tough sentencing on drugs for 30 years. Are there less drugs in New Zealand than there were before? No.

What do you think about that, Paul?

Dennehy: The war on drugs or—

Just the fact that there’s the suggestion here from Steve that there are a bunch of people who would be better served serving their sentence somewhere other than jail. Do you see that with the people you’re dealing with?

Dennehy: I think that’s true. I think we’re already amongst the highest in the OECD for people on community based detention. The reality of the situation facing the current prison situation though is that we do need the new build at Waikeria. As loath as we are as a society to build it, we are at breaking point in terms of our current capacity.

Swney: So let’s do what we do better, rather than expand what we’re doing wrong. So, look, here’s a terrible situation, we’ve got so many— the first third of the punitive part of it. So, you should be rolling up to parole ready to be released. 6% get out on first parole, because there aren’t enough case managers. We’re worried about the teacher ratios — you know, one teacher per 30 children — we’ve got one case manager per 60 prisoners. So they just aren’t getting the care—

At the prison you were in? That’s what you had?

Swney: At the prison I was in, yeah, on a good day. It was generally worse than that. And so we don’t need more guards, we need more case managers to prepare these prisoners so they’re better when they’re released.

Bonnar: And people just can’t get into some of the rehab programmes that they need to do to get through the parole system. I mean, that’s the part of the problem as well.

Dennehy: I mean, that’s quite right. We do—

Do you feel you’ve got enough staff?

Dennehy: We don’t—

Swney: Why would you want a larger prison when the existing system isn’t working? And in Peter Gluckman’s report here, he talks— and he’s bang on the money when he says, ‘We are tinkering with a system within a system.’ The system is broke. You don’t spend more money on that sort of system.

Let’s just hear from Paul about whether you think you’ve got enough staff in the right places and are prison officers engaged in rehabilitation?

Dennehy: We don’t have enough staff. The police have increased their numbers. Increased police numbers mean increased arrests. Increased arrests mean increased people going to prison. We need the new facility, as loath as we are, because we haven’t got enough capacity now. Do we have enough case managers, programme facilitators—

Swney: No, but we haven’t— I’m sorry, we haven’t got enough capacity because we are sentencing, we aren’t treating, we aren’t— all the stuff in the back that Lance talks about, we are not doing.

Dennehy: True. However, we need to deal with it now. And we need to make a decision now.

Swney: OK, let’s deal with it now. Let’s deal with it now by doing the stuff we should be doing, that we claim we are doing in prisons.

All right, I want to suggest a couple of— well, some people regard these as radical suggestions. So, Lance, what do you think about raising the Youth Court age to 23? Because research suggests that people have run out their criminal offending by about that age. What would you think of that?

Norman: I would agree with that, but there’s a number of things that need to be changed — restorative justice and investment initiatives, review of the bail laws (a lot of these crimes could be done easily by being bailed to a residential address), a review of the Drugs Act. All of these things need to be reviewed concurrently. Currently, cannabis — a Class C drug — can be up to a three-month imprisonment or a $500 fine.

Bonnar: That’s possession.

Norman: That’s for possession. So a $500 fine is relatively light. Going to jail for three months is at least $25,000 to the taxpayer. Why wouldn’t we say it’s a $500 fine and go and do some community service. Why is it even an option for the Ministry of Justice?

OK, well, I just want to ask you, do we need a sentencing commission? Because there was a suggestion around inconsistency in sentencing — that some people were getting harsher penalties for the same types of crimes. Do we need a review of that?

Bonnar: I don't know whether this sentencing commission is the answer, if this commission is simply going to be saying we need longer sentences, or if any sentencing commission is simply going to be reflecting a public panic or is penal populism, as Peter Gluckman refers to it. We just need to... A sentencing commission may give us some more consistency, in terms of sentencings, but I don't know that that will necessarily answer the question of whether we should be sending a particular person to prison or not.

Right. There was another idea that was floated before the election — it was by ACT's David Seymour. And he came up with this idea of giving prisoners discounts on their sentence for educational achievement — you could earn up to six weeks off your sentence for gaining literacy, numeracy skills and getting a driver’s licence.

Bonnar: I haven't agreed with a lot of ACT penal policy over the last few years, but that was one policy that did seem to make some sense to me. If you can incentivise people to educate themselves, then it must be a positive thing.

Swney: Could I talk on that? Because I did take literacy lessons. There was two elements of it — literacy and yoga — that I was involved in within the prison. And we had some uptake, but it was just so depressing how little it was. And even when they did it, they were doing it for their own good, but without any confidence it was going to make any difference to their parole chances. So if someone—And the few that I knew were trying to get tertiary qualifications — extraordinarily difficult to do. Now, these are people in there trying to make good of their time.

So they should get credit for that, you think, in terms of parole hearings, etc. — a formalised system?

Swney: Yes. And I see no sign of that. It needs to be formalised.

Bonnar: To be fair, I think the Parole Board takes account of that sort of stuff.

Swney: No. I saw no signs of that at all.

Bonnar: Really?

Swney: Yeah. And it needs to be formalised. It's not formalised.

Bonnar: I agree. I agree some formal incentives should be a good thing. But my experience is at least the Parole Board, when considering community safety, do take into account educative programmes.

Swney: But it should be formalised, so you know if you're doing this, you're being incentivised to do it. And it's not.

Bonnar: I agree with that.

We're going to have to go in a second. I want a chance to ask Lance, should ethnicity be considered as a mitigating factor when considering sentencing? Because some countries — for example, Canada has given special consideration to First Nations people.

Norman: I think if you introduce those rules, it becomes a little bit complicated. But I think you have to have an appreciation that some ethnicities are more over-represented for other reasons, and therefore could be dealt with differently. But I think if you start— because that comes back to your profiling question. I think there needs to be an acknowledgement that Maori are over-represented in prisons, notwithstanding — it's over 50%. There's been continuous hardship from 1840 until today on a bunch of things. And the systems need to reflect that hardship and that... the needs of that community. And it doesn't mean you're going to get treated differently, but there needs to be an appreciation, and there not only needs to be an appreciation, we need to stop being racist against Maori in the system. So, in my view, there's five things that are a solution here. You need to look at the preventative measures. You asked before the budget on Corrections, on $1.4 billion. So I'd rather have a conversation about the $80 billion the government has, and where that's allocated. We need to invest in social community programmes. We need to make sure that there's no pathways into prison; if you're in prison, there's pathways out of prison.

It's clear we need to keep this conversation going. But at least we have started it this morning. Thank you all for joining me this morning. We did invite the Department of Corrections to join us in this discussion, but they declined.

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