The Nation: Justice Minister Andrew Little
On Newshub Nation: Lisa Owen interviews Justice Minister Andrew Little
Lisa Owen: The Government must reduce the prison population by the end of next year or face complete failure of the prison system, according to Justice Ministry advice released to Newshub Nation. That advice also says those reductions will require significant reform. Here to discuss just what that means is Justice Minister Andrew Little. Good morning, Minister.
Andrew Little: Good morning.
For clarity’s sake, let’s start with three-strikes first. Is the repeal of that legislation a possibility still as part of a wider package of changes?
Not right now. Our coalition partner, New Zealand First, has made it pretty clear they don’t agree with the repeal of three-strikes at this point. They want to see a total package of reform. And it might be something that can be considered further down the track, but it’s not on the table right now.
How much would that change by itself have lowered the prison population?
Look, it could make some difference, but actually there are bigger gains through other changes that need to be made. We’re got to have a look at the whole range of things. It’s not just what the laws are — bail laws, parole laws. It’s actually what we do in the prisons — things that don’t necessarily require a law change. So what sort of services are we providing prisoners who need help and support, who can be changed and, with a bit of that extra help and support, can be released and not have a high probability of reoffending again? That’s where the game is, and that’s kind of part of the change process we have.
Okay. I want to look at the different possibilities of change a bit later, but first let’s lay out the situation as it is. Justice Ministry documents — and we’ve got a whole big wodge of them here that were released to us under the Official Information Act — they tell us the prison population is due to hit 13,400 by 2027. You simply don’t have the beds for that, so would you be happy with prisoners sleeping on mattresses on the floor?
No. Of course you don’t want that. And the reality is pretty much the first day we got into government, myself, Corrections Minister Kelvin Davis, we got the advice that, on the current trajectory on prison population growth, if we did nothing, we would be building an extra prison every two to three years. That’s kind of how bad it is. And so while we made it—
Hang on. Let’s not skip over that. If you do not make substantial change, you will be required to decide whether to build a new jail every two to three years.
That was the advice that we received, and that’s why we campaigned about reducing the prison population. Now we’re in government we get the opportunity to look at what’s under that. Why is it that we have this massive growth in the prison population? There’s a range of factors, but we know, when we look at what we’re doing — or, more importantly, what we’re not doing — and what other countries are doing, there’s stuff that we can do that not only reduces the prison population, but achieves what we actually want, which is reducing reoffending, therefore reducing the number of victims of crime, therefore being safer. So this is a programme about— although extensively we talk about reducing the prison population because we don’t have the prisons to accommodate them, it’s actually about a criminal justice system that achieves the objective of reducing offending, reducing reoffending, and having fewer victims of crime.
Okay. The other thing that you have also been told in that advice is that if you wish to avoid a quote ‘failure of the prison system’, you need to reduce inmate numbers by a specific amount. Now, that specific amount, that figure, has been redacted from the documents released to us. What is that number?
I can’t recall. That’s a report that goes back some months. I can’t recall it. Except that what we have done, we have already committed to—
Okay, but just before we move on from that, will you commit to releasing that figure, making it available to us so that we can put it on the website so people can see where things are at?
Look, I need to go back and see what the reason for the redaction was, because the reality is we have two projects for building extra prison accommodation. One is the short-term stuff we’re doing, which is due to have 660 extra beds by the end of next year. The other is now the rebuild of Waikeria Prison, which will be ready for 2020, 2021. Often those figures are kept because there are commercial imperatives. When you’re going out tendering and contracting, you’ve got to keep the tendering process—
Yeah. This isn’t about a tendering process, obviously. This is a vital figure. It is the minimum amount that they feel you need to reduce the prison population by the end of next year — that’s the deadline they’ve given you — or face extreme stress on the system and, ultimately, potential failure of the prison system. So will you undertake to go back and consider releasing that number — look at releasing that number to us so that we can have a full and frank conversation about this?
Sure. I’m happy to go back and have a look at it, but I go back to the point we’ve already made the decision — we made it pretty early on — about the extra build, what we’re calling the short-term build, of 660 extra beds that will be available at the end of next year. We’ve had to do that to alleviate the immediate pressure on the prison service. And then we’ve got the Waikeria build coming on as well. This is the balls that we’re juggling. I think the last interview I did with you, we were going through this. The short-term pressure that we’ve got in the absence of any other kind of initiatives or law changes that we’re doing — there are more prisoners going into the prison. More are being put on remand. We’ve got to deal with that. We’ve got to keep the Corrections staff safe. We’ve got to keep prisoners safe. But we’ve also got to work on the long-term gain, which is a criminal justice system that reduces offending and reoffending and the numbers of victims of crime.
Well, let’s break it down. To meet your 30% reduction target, according to all the advice that I’ve looked at, you will need a suite of changes. Legislative change, operational change, and investment in new services are the three areas that they’ve specified to you. Do you accept the advice that without law changes you will simply be looking at a Band-Aid patch-up, that you need law changes to do this job properly?
Yes, we do, and we’ve said that from the outset, and that’s why we’ve also said that pretty much everything is on the table. But what we’ve also said is we actually need to have a good public debate about the issue. We need to get the facts out about what has happened in the New Zealand criminal justice system over recent years, what is happening now, what the challenges are, and what are ways we can address that challenge, including the experience from overseas jurisdictions that have successfully reduced their prison population over a matter of a small number of years.
Okay. And we will look at some of that, but in terms of law change, before we move on, putting three-strikes to one side, specifically, what is on the table in terms of laws that are going to be looked at and reviewed?
I expect once we get our advisory group in place and we get through the criminal justice summit, we will have to have a look at the Parole Act, the Bail Act; we’ll have to look at the sentencing council idea and get some cohesion around our sentencing. There will be those sorts of things. I think the real game changer is going to be what we can do inside our prisons and make it systematic across the prison network, not just leave it up to individual prison managers who, through managing their budgets and tweaking things here and tweaking things there, can do initiatives that have a good impact but a small impact; we need to be doing that stuff network-wide.
And we’ll get to the rehabilitation side of things first, but you accept that, in order to reach these targets, you absolutely will have to have law change, and those are the areas — bail, sentencing, and parole. As soon as you say those things, you can imagine what the reaction is going to be, and this week, around three-strikes, Mark Mitchell from the National Party put out a press release straight away talking about the fact that everybody in jail needs to be there; 98 percent of them are high-end offenders — violence, serious assault, with an average of 46 convictions. They need to be in there.
No, because we know that over 50 percent of prisoners who enter the prison system in any one year are actually there for non-violence offences and what I would characterise as low-level offences. So he’s got that figure wrong. When we have a look at those on remand, we know that those who are remanded in custody in the huge numbers who are being remanded at the moment — 59 percent end up getting a custodial sentence. 41 percent do not get a custodial sentence. Nine percent of that overall figure are acquitted; they don’t get a conviction at all. Just the numbers alone tell you we’ve calibrated our remand decision-making the wrong way. We are remanding too many in custody.
We’re too severe with remanding people in custody. Is that what you’re saying?
41% remanded in custody end up not getting a custodial sentence as a result. It tells you that we’ve calibrated it too far the other way.
Okay, let’s look at specifics there too. One of the biggest growth areas for remand prisoners is class-A drug offenders awaiting trial. Is jail the best place for a class-A drug offender waiting for trial?
This is the problem — it’s hard to make those generalisations. If the drug offending is also leading to standover tactics, violence tactics, then, yeah, to keep other people safe, it probably is. Whether that’s the case for every person charged with a class-A drug offence, it’s hard to say.
But that’s the problem, isn’t it, Minister? The exception to the rule is always going to be the problem, isn’t it?
It’s not so much about the exception to the rule. It’s actually about having a justice system where you say to the judges, “Your job is to assess every individual person that comes in front of you on the circumstances that they are in.” We’ve spent years trying to be very prescriptive for judges, removing their discretion, so the whole heap of things that they can’t take into account, they don’t, and so we wind up with more people in prison. And we understand—
So are you suggesting legislative change that would allow them more discretion?
I guess what I’m suggesting is a criminal justice system that says you’ve done this offending; you have to be punished, and you may even have to go to prison, but you’ve got a mental health issue or you’re one of the 77% who is themselves a victim of violence — you grew up with violence in your home. You’ve got issues that we could help with and turn you around so when you are released you’re not part of that 60 percent who will reoffend within two years of being released.
Two years, yeah.
That 60% reoffending figure — that is a mark of failure of 30 years of criminal justice policy that says we’ll lock more people up and we’ll lock them up for longer. But the reoffending rate is as high as that. That’s what we have to change.
You’re talking about locking people up for longer there. Inmates are serving longer sentences with extended minimum parole periods. Would you consider dropping minimum non-parole periods and leaving it up to the parole board to decide when it is safe to release people?
Look, parole has a really important place for those who once they’re in prison, actually make an effort to do the things that’s going to change their behaviours. And I think what I found really encouraging this week was David Seymour, ACT MP, promoting his idea of those who are in prison, if they successfully complete the literacy course, if they successfully complete the addiction therapy or whatever it is that’s going to turn them around, they should get credit in terms of, you know, the sentence that they’re serving.
So you’ll consider legislating discounts on sentences for educational achievement?
Yeah, that’s actually what a parole system is for. There’s got to be a way to incentivise inmates once they are in prison to do stuff that’s going to change them — change their attitudes, their behaviours, and minimise their risk of reoffending on release. And if we’ve got MPs like David Seymour saying that, that actually to me looks like a pretty significant breakthrough.
You’ve touched on this, but 91 percent of prisoners have a lifetime mental health diagnosis, 65 percent have low literacy or numeracy, 47 percent have addiction problems. You have been— People have said that the move to build 100-bed mental health system facility at Waikeria Prison is the right thing to do, but what are you going to do with all the other jails and all the others? Because the numbers are huge with these problems. Specifically, are you going to put those units everywhere else?
Yeah, look, we’ve done that with Waikeria, because we’ve accepted on the current evidence that actually we need that sort of help and support for people who are in prison with mental health issues. And the same will apply in other parts of the country, unquestionably. And I think the point that we’re at, and one of the objectives of the criminal justice summit at the end of August, is exactly to kind of get that social license to look more creatively at what we can do in the prison system that’s going to help people who’ve done bad things turn them around, reduce their reoffending and therefore spare more victims of crime. But that’s why we’ve got to have a good public debate and actually get some good evidence out there about what we can do, about what could be done and what could make a difference.
Well, part of the evidence — 60 percent of prisoners, as you mentioned, end up back in jail within two years, so our current rehab course of just box-ticking exercises. The ones in the system now, if you’ve got a 60 percent bounce-back rate—
Yeah, well, I’m not going to characterise it except to say we know what the result is — 60 percent are reoffending within two years of release. It’s not good enough. Look, if I ran a business where 60 percent of my customers came back for a refund or an exchange within two years of me selling the service or the good, I wouldn’t have a business. But yet we tolerate that in our criminal justice system — that level of failure. And we shouldn’t do anymore. This is what we have to address.
Okay, so, arguably, one of the best ways to lower the prison population is to stop people going there in the first place, and one of the government’s science advisors has said that we really need to intervene with at-risk kids at very early ages, including babies. How comfortable are you with identifying those kids and targeting them with intervention and assistance?
You know, we know that there are situations that young people are in — and, look, it often starts with violence in the home —that if we do the right interventions, we can change life outcomes way further down the track. And the police are dealing with this all the time. They are piloting this Integrated Safety Response model in Christchurch and in Hamilton that is starting to have some really positive effects about not just keeping people safe, but actually addressing the behaviours that are the source of the violence. That’s the sort of stuff that we have to be doing. I mean, I think part of the public debate we need to have is — and I talked about social license before — what is it we need to be doing, what is it the public of New Zealand want us to be doing without getting too Big Brother-ish about it. What is it that we could be doing — knowing that these things have a long-term effect — that is really going to make the difference. And that is, I think, where the debate has to be.
That, in essence, is what could be called ‘social investment’. And Treasury has now identified almost 20,000 kids under the age of five with high-risk factors, so we know who they are. Why don’t you just get on with it and work with those kids?
Yeah, we can. And it hasn’t just happened under our government. I sat on the select committee that was chaired by Paul Hutchison, former National MP, who has made it his life’s work to redress this issue about the first thousand days — getting that start right for kids in New Zealand. And it was a fantastic piece of work. I wasn’t on it for the whole thing. It was a fantastic report, but it was completely ignored by the previous government. But we can pick some stuff out of that, and that’s the stuff that will help us make the difference.
So you’re not opposed to targeting kids of that age with targeted intervention and assistance?
Look, everything’s got to be on the table — targeted assistance, whatever. In the end, I think when New Zealanders understand the magnitude of the problem, particularly around family and domestic violence, they understand what can be done— And, look, there will be some kind of encroachment on civil liberties potentially, but if this is about giving young kids a chance to have a decent life so they’re not heading on that pipeline to prison, man, we’ve got to look at it.
Okay, so when you say, ‘everything’s on the table’, the Children’s Commissioner and science advisors have said that evidence shows that brain development isn’t complete in young people until they’re well into their mid-20s. So what about giving judges’ discretion to refer people to the Youth Court right up to the age of 25?
Yeah, that issue has come up for debate, and we have pushed out the jurisdiction for the Youth Court by a year just recently—
Yeah, under National. Yeah.
Yeah, with the support of pretty much everybody, certainly Labour.
‘Not far enough’, says the Children’s Commissioner. I want to explore how far you are prepared to go. Would you push it out to 20? Is that actively under consideration?
No, I haven’t seen any suggestion along those kinds of lines. What I am very keen for us to do is to get more evidence and more science into what we do about criminal justice policy. And if the scientists and the specialists are saying, ‘Look, this is something we have to look at’, let’s have that in the debate. Let’s put that on the table, and let’s have a discussion about that as well.
Yeah, so you are prepared to ‘go with the data, not with dogma’?
That’s a very nifty little phrase. I want to see more evidence—
It’s Sir Peter Gluckman’s phrase.
Right. And a great Chief Science Advisor to the Prime Minister and successive prime ministers he’s been too. I want to see us being more science-based, more evidence-based than we have been for a long time.
Okay, well, you have identified the fact that you need to talk to people about this, members of the public, and Jacinda Adern has said that the biggest challenge is going to be bringing the public along with you. How are you going to do that? Because a lot of people think ‘lock them up, throw away the key’.
Yeah, a lot of people do. But it’s interesting, I detect a bit of a change in the debate as I get around. I’m finding fewer people saying, ‘You’re completely mad, lock them up, forget about them, they’re scum’ and all the rest of it. Actually, if we’re serious about reducing offending, we’ve got to change what we do with those who have done wrong, who are being punished and being deprived of their liberty. If we want to stop them offending again — and, look, when we see a 60 percent reoffending rate, which, in my view, is that mark of failure — then we have to do things differently. And I think when we get good information out there — the purpose of the criminal justice summit is exactly to do that. We’ll have our independent advisory group as well — part of their role is to be part of leading that public discussion about that sort of stuff, so I’m confident with good information, with good public debate, actually people will say, ‘You know what? We’ve got to do things differently if we want to reduce those numbers, reduce the burden on the rest of the community of locking all these people up, and actually not changing the reoffending rate’. Well, why would we continue doing more of the same?
Okay, so what weight in that discussion are you going to give to victims’ views?
A significant amount, because I also happen to agree with a lot of the victim advocacies that victims are still given a pretty shoddy ride in the criminal justice system. The victims are not part of the criminal justice system because of anything they’ve done or any choice of theirs. They are there because of things done to them. And yet we still let them down right from the outset, right from their engagement with the police, right through to the point of sentencing and what happens with them. So I am very keen for us to do a lot better for victims to make sure that their voice is heard at the right places throughout the system and make sure the victims get to have a place in what happens with offenders.
But in terms of these specific reforms, for example, will Sensible Sentencing have representation on any advisory board?
Look, we’ve approached victims’ advocates, victims’ advisors, and I’m very confident with the ones we’ve approached that they bring a very strong and independent voice for victims to the table.
So is that a ‘no’ to Sensible Sentencing having some representation on your advisory board? Because these documents do say that that is a group that you need to bring along with you.
Yeah, look, the Sensible Sentencing Trust is an interesting organisation, because its putative head — I forget who is the actual head of it now, because it has chopped and changed so much — but you’ve got Garth McVicar, who only a few years ago was publicly backing the 50-year-old white guy who stabbed to death a 15-year-old, who had just graffitied his garage.
So they’re not someone you want on your advisory panel? Is that what you’re saying?
Well, we don’t want nutters on it. We want good victims’ advocates who are genuinely about improving the place of victims in our system.
Okay, what happens if there is a high profile crime while you are trying to negotiate these changes? Because, again, the documents tell us you were preparing messaging, should that happen.
Yeah, because we’ve been told that the thing that kind of skews the public debate and public opinion is a real traumatic, tragic event happens and people want to clamp down on things. And I think the point is this — the sort of stuff we are talking about are not the offenders who are doing the high-profile, you know days of coverage of their court case and their trial in court, really appalling and egregious stuff. Actually, it’s the lower level offenders, who’ve got a whole bunch of other problems going on in their lives, usually that they’ve inherited, but with a bit of an effort we can turn them around, and we can reduce that reoffending rate. What is the ultimate objective? We want fewer victims of crime. What we’re doing at the moment isn’t helping that. Actually, we’ve added to the prison population, we have more prisoners spending more time in prison, but our reoffending rate is still the same as it was about 15 years ago. So that’s not working. If we want to address that reoffending rate, reduce the numbers of victims of crime, we have to change what we’re doing, and we’ve got to talk to the public about what the best way is to do that.
Thanks for joining us this morning, Justice Minister Andrew Little. Looking forward to you reconsidering the redactions in these documents too.
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