Prisoners, Human Rights, Legislative Measures and Over-representation
Abstract: This paper is written in response to Dr Kris Gledhill’s Prisoners and Human Rights: A Balanced Framework paper. People are sent to prison as punishment not for punishment. Deprivation of liberty is the punishment. This basic premise of our punishment regime is often ignored or wilfully misunderstood by proponents of more punitive reforms. While this brief paper will consider the human rights frame work and new legislative measures it will also look at the impact and responses of the disproportionality of Māori in prison. The normalising of the notion of over-representation means that it is often perceived as a natural attribute of a particular group. As Māori, allies and social justice practitioners who constantly face the challenge of engaging with the issue of over-representation we should be exploring better terminology that more effectively captures the experience of disproportionate incarceration rates.
Acknowledgements
I would like to thank Kris for giving such a clear over-view of the international human rights instruments today that help support us in creating a framework to reflect on Penal populism and to better make sense of policy and practice. As some of you may know my own work is largely with women in prison and with male ex-prisoners. In response to Kris’s paper and in acknowledgement of the first-hand experience are presented to us from Rawiri and Fete I will concentrate on reflections on policy and state responses with a particular focus on Māori and prisons. Some of this will draw closely on Kim Workman’s work and submissions made by the Robson Hanan Trust of which I am a Board member.
Before I start I want to start with a quote from Angela Davis about the place of prisons in our collective and individual lives”
It is difficult to imagine life without them. At the same time, there is a reluctance to face the realities hidden within them, a fear of thinking about what happens inside them. Thus, the prison is present in our lives, and, at the same time, it is absent from our lives. To think about this simultaneous presence and absence is to begin to acknowledge the part played by ideology in shaping the way we interact with our social surroundings...Because it would be too agonizing to cope with the possibility that anyone, including ourselves, could become a prisoner, we tend to think of the prison as disconnected from our own lives. (2003: 15).
It is common knowledge that New Zealand has a high incarceration rate. Does this mean we are one of the most dangerous countries in the world? How can we make sense of falling crime rates at the same time that we have seen increases in incarceration rates. We do need to be clear. There is no correlation anywhere in the world between the imprisonment rate and the crime rate. The imprisonment rate is not a measure of crime; it is a measure of the consumption of punishment. New Zealand society does not just have a tolerance for a high incarceration rate it has an enthusiasm for it.
A human rights framework starts from a basic principle of recognition of the dignity and value of the individual. The fact of being incarcerated in a prison does not release authorities from the right to be treated with dignity. Moreover as Kris has outlined that due to the nature of incarceration it is itself a reason for special protection. As he notes the European Court of Human Rights asserts “That persons in custody are in a vulnerable position and the authorities are under a duty to protect them”. I also recognise that under the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment we are guided by New Zealand’s obligations as signatories to ensure that
All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person (International Covenant on Civil and Political Rights, Article 10.1), and noting the Human Rights Committee’s comment that “the application of this rule, as a minimum, cannot be dependent of the material resources available in the State party".
Let us give expression to what this may mean drawing on recent examples. People are sent to prison as punishment not for punishment. Deprivation of liberty is the punishment. This basic premise of our punishment regime is often ignored or wilfully misunderstood by proponents of more punitive reforms. Safety of prisoners must be assured and is a primary principle of the legal detention of individuals. The queer and trans activist group No Pride in Prisons has brought to our attention the ongoing issue of seriously compromising the safety and undermining the dignity of trans people who are imprisoned. This year we have had multiple examples of trans women being put in men’s prisons and put at risk. In one of these cases the trans woman was subjected to sustained assault and sexual violence. Rather than protecting her she was put in harm’s way. This is a human rights issue and it is a human issue. Non-discrimination rights, as Kris notes, make the important point that it is necessary to take concrete steps to overcome prejudices by recognising that equal treatments and non-discrimination is a right in itself. I would like to note having worked for a long time in equity functions at the University of Auckland that equity is based on equal outcomes and to achieve equal outcomes you often need different inputs. I also want to take this opportunity to note the importance to the body politic and to social justice outcomes of activist groups such as No Pride in Prisons. Their cause is not a popular one, and as many of us know in this room, to create the conditions of social change the vanguard actions are likely to be confrontational. Many rights we take for granted today have emerged from the actions of activists such as those involved in No Pride in Prisons.
I will turn my discussion now to looking at the issues of over-representation of Māori in the criminal justice system and structural discrimination and institutional racism. I do recognise that this is both an international and national problem.
The warehousing of surplus humanity in prisons and the ongoing carceralisation of indigenous communities is largely a silent crisis that has resulted in a profound unfreedom for indigenous peoples and other marginalised groups (McIntosh & Radojkovic, 2012). There are competing narrative flows that on one hand profess knowledge of the over-representation of Māori in prison (which I would argue is the most widely known social statistic in New Zealand) and on the other hand continue to disavow the damage that high incarceration incurs on our whānau and communities. This ability to simultaneously reveal and conceal the nature of the experience of prison in Māori life-worlds shows the power of a discourse that renders the prison a natural part of the social environment for particular groups.
Rethinking over-representation
The normalising of the notion of over-representation means that it is often perceived as a natural attribute of a particular group. As Māori, allies and social justice practitioners who constantly face the challenge of engaging with the issue of over-representation we should be exploring better terminology that more effectively captures the experience of disproportionate incarceration rates. The use of the term is such a common place in discussing Māori and prison that we fail to interrogate it sufficiently.
Over-representation, while descriptively correct, is a less than useful designation because it is monolithic in concept and practice. It tends to depict the prefix as unproblematic (hence naturalising it) and most importantly renders invisible the social structures and mechanisms that engender it. Over-representation becomes another tool of confinement in that it speaks to and confirms the existing situation of not only those who are currently incarcerated but also to the enduring cycle of incarceration. In some ways it describes the systemic churn that ensures that, for too many, the prison may be perceived as one’s destiny. Is prison a matter of descent: related to some form of genealogical inheritance, or is it related to dissent: an act of resistance against mainstream societal norms that have largely ensured the ‘systemic frustration of aspirations’ of Māori? (Feieraband, I &T., 1966; Galtung, 1970; Khan, 1978; Eckermann, 1999). While I struggle to come up with a word that replaces over-representation I remain aware of how closely the word, its use and the experiences associated with it speak to a high level of social constraint and blocked opportunities and the way that cumulative disadvantage may systematically make an individual or a collective become vulnerable to having certain human rights extinguished.
The disproportionality of Māori in the prison population (Department of Corrections [DoC], 2007; Morrison, 2009) as well as at other stages of New Zealand’s criminal justice system, both as victims and as offenders is stark. Official statistics reveals that Māori were four to five times more likely to be apprehended, prosecuted and convicted than non-Māori, seven and a half times more likely to be given a custodial sentence and eleven times more likely to be remanded in custody awaiting trial (Morrison, 2009: 20; Webb, 2011: 251). The disparities are particularly striking in family violence courts where Māori are convicted at ten times the rate of Pākehā and about 4 times the rate of Pacific Islanders (Workman, 2011: 20). Research on recidivism indicates that Māori are more likely to be reconvicted and re-imprisoned after serving community sentences than other ethnic groups (Nadesu, 2009).
This disproportionality is also more marked in the remand than in the sentenced population, with Māori being almost twice as likely to be remanded in custody as Pākehā across all types of offences (Workman, 2011: 17-8). While this is partly due to fact that Māori are overrepresented among those charged with offences that are likely to result in remand in custody, such as aggravated robbery and burglary, a Cabinet paper also suggested this difference was due to Māori lack of access to support services such as housing which prevents them from getting bail (Workman, 2011: 17; Ministry of Justice, 2006). The paper noted that stable and appropriate accommodation is a significant factor in bail decision since it mitigates the risk that a defendant may abscond or offend (Ministry of Justice, 2006). O’Malley notes that bail serves a key function in the administration of justice as it provides the defendant with the freedom necessary to prepare an adequate defence, however that due to limited financial means, Māori were less likely to arrange bail and to obtain legal counsel. Consequently those defendants who were not represented were more likely to plead guilty (1973: 49-50).
The colonial past has informed, and continues to inform, the post-colonial present and the blossoming of Indigenous renaissances, articulated daily in social relations, in identity and in discourse.
The dominant ideologies and approaches of the mainstream speak to differential power relations. The strong arm of the state, made manifest in the law, the police and the pedagogical institutions of courts and jails, coerce, the popular masses into consenting to mainstream activities and aspirations. Such organisational methodologies corral and perpetuate the existence and the isolation of the marginalised (often criminalised) ‘other’, and in turn, reveal and amplify that those on the fringes resist and construct cultures and lives in which hope, possibility, identities and life pathways are informed, shaped and pursued.
The forms, functions and significance of punishment in modern society reach well beyond its ability to “reduce reoffending” or “preserve public safety”. The way we run prisons, and the values that underlie their management, communicate meaning about the nation’s attitude to power, authority, legitimacy, normalcy, morality, and social relations (Garland, 1990; Ignatieff, 1978. Prisons are not just about punishment, deterrence, rehabilitation and incapacitation. They hold a moral and symbolic role – they reflect the state of the world in which we live. Prisons are architectures of control and one of the clearest expressions of state power.
Prisoners and Human Rights
We have seen an incremental and expanding introduction of legislative measures that may be seen as fundamentally in conflict with the rule of law, to the extent that in 2013, the Law Society felt impelled to report this matter to the United Nations.[1] It listed a series of acts that have allowed the Executive to use regulation to override Parliament, that deny citizens the right to legal representation and cancel their right to appeal to the courts to uphold their rights under the law. The Law Society also drew attention to the use of Supplementary Order Papers and urgency to avoid proper Parliamentary scrutiny of legislation. They expressed their concern that a number of bills formally declared by the Attorney-General to be in breach of the Bill of Rights had been enacted.
The Law Society’s report identified eight pieces of legislation in which a negative Bill of Rights report has been ignored in the previous three years, i.e.
Since the Law Society’s report in 2013, we have seen legislation that has been enacted or introduced which may be seen as in breach of the Bill of Rights.
Eleven of these sixteen legislative measures relate directly to prisoners and offenders.
The impact of such legislation gives some insight to us as a society. As Kim Workman notes “It speaks of a nation in which the right against search and seizure and the protections against arbitrary or unlawful interference of privacy may be ignored.[2] A nation that is prepared to punish offenders twice for the same offence and authorise arbitrary detention, in breach of sections 26 and 22 of the Bill of Rights.[3] A nation that not only denies prisoners the right to vote,[4] but is prepared to subject them to disproportionately severe treatment affirmed by Section 9 of the Bill of Rights, resulting in disparities between offenders that are not rationally based and can result in disproportionate sentencing.”[5]
As the National Health Committee (2008) has noted:
Although there have been changes in the constitution of the prison population, those who are incarcerated continue to represent the most marginalised, culturally censored, socio-economically disadvantaged and ‘powerless’ of society. The majority of prisoners of any country, including New Zealand, are those that come from a context already shaped by social exclusion. Among other things, they are likely to be from an ethnic minority, have limited education and a history of instability, unemployment or underemployment, substandard diet and housing conditions, and inferior medical access. Their health including mental health reflects this disadvantage and like them, tends to be poor (2008: 10).
For many prisoners, incarceration marks a downwards shift in the life trajectory, a narrowing of what is already often a constricted path culminating in a further embedding of a marginalised status. Prison is in many cases a traumatic, injurious, and fundamentally non-therapeutic environment, and that prison experiences may cause prisoners to undergo deterioration and exacerbation of physical and mental health issues. Prisons are institutions that in their architecture, systems and policies articulate the power of the state over the individual and within them prisoners are likely to experience a profound unfreedom that will follow them once they are outside of the wire.. They may also have further developed patterns of behaviour and a way of viewing and being in the world which, while perhaps useful within prison walls, are perhaps potentially maladaptive and harmful, to themselves and others, outside of this specialised environment.
We make social institutions and we can unmake them. We can demonstrate global leadership in this area by focusing on social harm reduction, by attending actively to the factors that generate the environment that is conducive to social harming and criminal behaviour, by responding to victimisation in ways that are productive to positive sustained and inter-generational change.
References
Davis, A. (2003). Are Prisons Obsolete? New York: Seven Stories Press.
Department of Corrections. (2007). Over-representation of Maori in the criminal justice system: An exploratory report. Wellington: Department of Corrections.
Eckermann A (1999) Aboriginal Education in Rural Australia: A Case study in frustration and hope, Australia Journal of Education, 43:5.
Feierabend I and R Feierabend (1966) Aggressive behaviors within polities, 1948-1962: a cross-national study. Journal of Conflict Resolution 10 (September): 249-271.
Garland, D. (1990) Punishment and Modern Society, Oxford: Clarendon Press.
Galtung J (1970) Feudal systems, structural violence and the structural theory of revolution. Revista Latinoamericana de Ciencia Politica 1 (1), 25-79.
Ignatieff, M. (1978) A Just Measure of Pain: The Penitentiary in the Industrial Revolution 1750-1850, London: Macmillan.
Khan R (1978) Violence and socio-economic development. International Social Science Journal 30 (4), 834-857.
McIntosh T and Radojkovic (2012 Exploring the Nature of the Intergenerational Transfer of Inequalities Experienced by Young Māori people in the Criminal Justice System. In D. Brown (Ed.), Indigenising Knowledge for Current and Future Generations (pp. 38-48). Auckland:Nga Pae o Te Maramatanga.
Morrison, B. (2009). Identifying and responding to bias in the criminal justice system: A review of international and New Zealand research. Wellington: Ministry of Justice.
Ministry of Justice. (2006). Cabinet paper ‘Effective Interventions’. Paper 4: Remand in Custody. Wellington: Ministry of Justice.
Nadesu, A. (2009). Reconviction patterns of released prisoners: A 60-month follow-up analysis. Department of Corrections: Wellington.
National Health Committee. (2008). Review of research on the effects of imprisonment on the health of inmates and their families. Wellington: Ministry of Health.
Webb, R. (2011). Incarceration. In Māori and social issues (Eds. T. McIntosh and M. Mulholland). Huia Publishers: Wellington.
Workman, K. (2011). Māori over-representation in the criminal justice system – does structural discrimination have anything to do with it? Discussion paper published by Rethinking Crime and Punishment. Retrieved from: http://www.rethinking.org.nz/assets/Newsletter_PDF/Issue_105/01_Structural_Discrimination_in_the_CJS.pdf
[1] http://www.lawsociety.org.nz/__data/assets/pdf_file/0006/68541/United-Nations,-Universal-Periodic-Review-17-6-13.pdf.
[2] Criminal Investigation (Bodily Samples) Amendment Act 2009
[3] Parole (Extended Supervision Orders) Amendment Act 2009
[4] Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010;
[5] Sentencing and Parole Reform At 2010
Abstract: This paper is written in response to Dr Kris Gledhill’s Prisoners and Human Rights: A Balanced Framework paper. People are sent to prison as punishment not for punishment. Deprivation of liberty is the punishment. This basic premise of our punishment regime is often ignored or wilfully misunderstood by proponents of more punitive reforms. While this brief paper will consider the human rights frame work and new legislative measures it will also look at the impact and responses of the disproportionality of Māori in prison. The normalising of the notion of over-representation means that it is often perceived as a natural attribute of a particular group. As Māori, allies and social justice practitioners who constantly face the challenge of engaging with the issue of over-representation we should be exploring better terminology that more effectively captures the experience of disproportionate incarceration rates.
Acknowledgements
I would like to thank Kris for giving such a clear over-view of the international human rights instruments today that help support us in creating a framework to reflect on Penal populism and to better make sense of policy and practice. As some of you may know my own work is largely with women in prison and with male ex-prisoners. In response to Kris’s paper and in acknowledgement of the first-hand experience are presented to us from Rawiri and Fete I will concentrate on reflections on policy and state responses with a particular focus on Māori and prisons. Some of this will draw closely on Kim Workman’s work and submissions made by the Robson Hanan Trust of which I am a Board member.
Before I start I want to start with a quote from Angela Davis about the place of prisons in our collective and individual lives”
It is difficult to imagine life without them. At the same time, there is a reluctance to face the realities hidden within them, a fear of thinking about what happens inside them. Thus, the prison is present in our lives, and, at the same time, it is absent from our lives. To think about this simultaneous presence and absence is to begin to acknowledge the part played by ideology in shaping the way we interact with our social surroundings...Because it would be too agonizing to cope with the possibility that anyone, including ourselves, could become a prisoner, we tend to think of the prison as disconnected from our own lives. (2003: 15).
It is common knowledge that New Zealand has a high incarceration rate. Does this mean we are one of the most dangerous countries in the world? How can we make sense of falling crime rates at the same time that we have seen increases in incarceration rates. We do need to be clear. There is no correlation anywhere in the world between the imprisonment rate and the crime rate. The imprisonment rate is not a measure of crime; it is a measure of the consumption of punishment. New Zealand society does not just have a tolerance for a high incarceration rate it has an enthusiasm for it.
A human rights framework starts from a basic principle of recognition of the dignity and value of the individual. The fact of being incarcerated in a prison does not release authorities from the right to be treated with dignity. Moreover as Kris has outlined that due to the nature of incarceration it is itself a reason for special protection. As he notes the European Court of Human Rights asserts “That persons in custody are in a vulnerable position and the authorities are under a duty to protect them”. I also recognise that under the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment we are guided by New Zealand’s obligations as signatories to ensure that
All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person (International Covenant on Civil and Political Rights, Article 10.1), and noting the Human Rights Committee’s comment that “the application of this rule, as a minimum, cannot be dependent of the material resources available in the State party".
Let us give expression to what this may mean drawing on recent examples. People are sent to prison as punishment not for punishment. Deprivation of liberty is the punishment. This basic premise of our punishment regime is often ignored or wilfully misunderstood by proponents of more punitive reforms. Safety of prisoners must be assured and is a primary principle of the legal detention of individuals. The queer and trans activist group No Pride in Prisons has brought to our attention the ongoing issue of seriously compromising the safety and undermining the dignity of trans people who are imprisoned. This year we have had multiple examples of trans women being put in men’s prisons and put at risk. In one of these cases the trans woman was subjected to sustained assault and sexual violence. Rather than protecting her she was put in harm’s way. This is a human rights issue and it is a human issue. Non-discrimination rights, as Kris notes, make the important point that it is necessary to take concrete steps to overcome prejudices by recognising that equal treatments and non-discrimination is a right in itself. I would like to note having worked for a long time in equity functions at the University of Auckland that equity is based on equal outcomes and to achieve equal outcomes you often need different inputs. I also want to take this opportunity to note the importance to the body politic and to social justice outcomes of activist groups such as No Pride in Prisons. Their cause is not a popular one, and as many of us know in this room, to create the conditions of social change the vanguard actions are likely to be confrontational. Many rights we take for granted today have emerged from the actions of activists such as those involved in No Pride in Prisons.
I will turn my discussion now to looking at the issues of over-representation of Māori in the criminal justice system and structural discrimination and institutional racism. I do recognise that this is both an international and national problem.
The warehousing of surplus humanity in prisons and the ongoing carceralisation of indigenous communities is largely a silent crisis that has resulted in a profound unfreedom for indigenous peoples and other marginalised groups (McIntosh & Radojkovic, 2012). There are competing narrative flows that on one hand profess knowledge of the over-representation of Māori in prison (which I would argue is the most widely known social statistic in New Zealand) and on the other hand continue to disavow the damage that high incarceration incurs on our whānau and communities. This ability to simultaneously reveal and conceal the nature of the experience of prison in Māori life-worlds shows the power of a discourse that renders the prison a natural part of the social environment for particular groups.
Rethinking over-representation
The normalising of the notion of over-representation means that it is often perceived as a natural attribute of a particular group. As Māori, allies and social justice practitioners who constantly face the challenge of engaging with the issue of over-representation we should be exploring better terminology that more effectively captures the experience of disproportionate incarceration rates. The use of the term is such a common place in discussing Māori and prison that we fail to interrogate it sufficiently.
Over-representation, while descriptively correct, is a less than useful designation because it is monolithic in concept and practice. It tends to depict the prefix as unproblematic (hence naturalising it) and most importantly renders invisible the social structures and mechanisms that engender it. Over-representation becomes another tool of confinement in that it speaks to and confirms the existing situation of not only those who are currently incarcerated but also to the enduring cycle of incarceration. In some ways it describes the systemic churn that ensures that, for too many, the prison may be perceived as one’s destiny. Is prison a matter of descent: related to some form of genealogical inheritance, or is it related to dissent: an act of resistance against mainstream societal norms that have largely ensured the ‘systemic frustration of aspirations’ of Māori? (Feieraband, I &T., 1966; Galtung, 1970; Khan, 1978; Eckermann, 1999). While I struggle to come up with a word that replaces over-representation I remain aware of how closely the word, its use and the experiences associated with it speak to a high level of social constraint and blocked opportunities and the way that cumulative disadvantage may systematically make an individual or a collective become vulnerable to having certain human rights extinguished.
The disproportionality of Māori in the prison population (Department of Corrections [DoC], 2007; Morrison, 2009) as well as at other stages of New Zealand’s criminal justice system, both as victims and as offenders is stark. Official statistics reveals that Māori were four to five times more likely to be apprehended, prosecuted and convicted than non-Māori, seven and a half times more likely to be given a custodial sentence and eleven times more likely to be remanded in custody awaiting trial (Morrison, 2009: 20; Webb, 2011: 251). The disparities are particularly striking in family violence courts where Māori are convicted at ten times the rate of Pākehā and about 4 times the rate of Pacific Islanders (Workman, 2011: 20). Research on recidivism indicates that Māori are more likely to be reconvicted and re-imprisoned after serving community sentences than other ethnic groups (Nadesu, 2009).
This disproportionality is also more marked in the remand than in the sentenced population, with Māori being almost twice as likely to be remanded in custody as Pākehā across all types of offences (Workman, 2011: 17-8). While this is partly due to fact that Māori are overrepresented among those charged with offences that are likely to result in remand in custody, such as aggravated robbery and burglary, a Cabinet paper also suggested this difference was due to Māori lack of access to support services such as housing which prevents them from getting bail (Workman, 2011: 17; Ministry of Justice, 2006). The paper noted that stable and appropriate accommodation is a significant factor in bail decision since it mitigates the risk that a defendant may abscond or offend (Ministry of Justice, 2006). O’Malley notes that bail serves a key function in the administration of justice as it provides the defendant with the freedom necessary to prepare an adequate defence, however that due to limited financial means, Māori were less likely to arrange bail and to obtain legal counsel. Consequently those defendants who were not represented were more likely to plead guilty (1973: 49-50).
The colonial past has informed, and continues to inform, the post-colonial present and the blossoming of Indigenous renaissances, articulated daily in social relations, in identity and in discourse.
The dominant ideologies and approaches of the mainstream speak to differential power relations. The strong arm of the state, made manifest in the law, the police and the pedagogical institutions of courts and jails, coerce, the popular masses into consenting to mainstream activities and aspirations. Such organisational methodologies corral and perpetuate the existence and the isolation of the marginalised (often criminalised) ‘other’, and in turn, reveal and amplify that those on the fringes resist and construct cultures and lives in which hope, possibility, identities and life pathways are informed, shaped and pursued.
The forms, functions and significance of punishment in modern society reach well beyond its ability to “reduce reoffending” or “preserve public safety”. The way we run prisons, and the values that underlie their management, communicate meaning about the nation’s attitude to power, authority, legitimacy, normalcy, morality, and social relations (Garland, 1990; Ignatieff, 1978. Prisons are not just about punishment, deterrence, rehabilitation and incapacitation. They hold a moral and symbolic role – they reflect the state of the world in which we live. Prisons are architectures of control and one of the clearest expressions of state power.
Prisoners and Human Rights
We have seen an incremental and expanding introduction of legislative measures that may be seen as fundamentally in conflict with the rule of law, to the extent that in 2013, the Law Society felt impelled to report this matter to the United Nations.[1] It listed a series of acts that have allowed the Executive to use regulation to override Parliament, that deny citizens the right to legal representation and cancel their right to appeal to the courts to uphold their rights under the law. The Law Society also drew attention to the use of Supplementary Order Papers and urgency to avoid proper Parliamentary scrutiny of legislation. They expressed their concern that a number of bills formally declared by the Attorney-General to be in breach of the Bill of Rights had been enacted.
The Law Society’s report identified eight pieces of legislation in which a negative Bill of Rights report has been ignored in the previous three years, i.e.
- Criminal Investigation (Bodily Samples) Amendment Act 2009
- Parole (Extended Supervision Orders) Amendment Act 2009;
- Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010;
- Sentencing and Parole Reform Act 2010;
- New Zealand Public Health and Disability Amendment Act 2013;
- Social Security (Benefit Categories and Work Focus) Amendment Act 2013;
- Corrections Amendment Act 2013; and
- Prisoners' and Victims' Claims (Continuation and Reform) Amendment Act 2013.
Since the Law Society’s report in 2013, we have seen legislation that has been enacted or introduced which may be seen as in breach of the Bill of Rights.
- Prohibition of Gang Insignia in Government Premises Act 2013;
- Bail Amendment Act 2013;
- Government Communications Security Bureau Amendment Act 2013;
- Parole Amendment Bill 2013;
- Judicature Modernisation Bill 2013
- Parole (Extended Supervision Orders) Amendment Bill 2014;
- The Public Safety (Public Protection Orders) Bill 2014; and
- The Electronic Monitoring of Offenders Bill 2015
Eleven of these sixteen legislative measures relate directly to prisoners and offenders.
The impact of such legislation gives some insight to us as a society. As Kim Workman notes “It speaks of a nation in which the right against search and seizure and the protections against arbitrary or unlawful interference of privacy may be ignored.[2] A nation that is prepared to punish offenders twice for the same offence and authorise arbitrary detention, in breach of sections 26 and 22 of the Bill of Rights.[3] A nation that not only denies prisoners the right to vote,[4] but is prepared to subject them to disproportionately severe treatment affirmed by Section 9 of the Bill of Rights, resulting in disparities between offenders that are not rationally based and can result in disproportionate sentencing.”[5]
As the National Health Committee (2008) has noted:
Although there have been changes in the constitution of the prison population, those who are incarcerated continue to represent the most marginalised, culturally censored, socio-economically disadvantaged and ‘powerless’ of society. The majority of prisoners of any country, including New Zealand, are those that come from a context already shaped by social exclusion. Among other things, they are likely to be from an ethnic minority, have limited education and a history of instability, unemployment or underemployment, substandard diet and housing conditions, and inferior medical access. Their health including mental health reflects this disadvantage and like them, tends to be poor (2008: 10).
For many prisoners, incarceration marks a downwards shift in the life trajectory, a narrowing of what is already often a constricted path culminating in a further embedding of a marginalised status. Prison is in many cases a traumatic, injurious, and fundamentally non-therapeutic environment, and that prison experiences may cause prisoners to undergo deterioration and exacerbation of physical and mental health issues. Prisons are institutions that in their architecture, systems and policies articulate the power of the state over the individual and within them prisoners are likely to experience a profound unfreedom that will follow them once they are outside of the wire.. They may also have further developed patterns of behaviour and a way of viewing and being in the world which, while perhaps useful within prison walls, are perhaps potentially maladaptive and harmful, to themselves and others, outside of this specialised environment.
We make social institutions and we can unmake them. We can demonstrate global leadership in this area by focusing on social harm reduction, by attending actively to the factors that generate the environment that is conducive to social harming and criminal behaviour, by responding to victimisation in ways that are productive to positive sustained and inter-generational change.
References
Davis, A. (2003). Are Prisons Obsolete? New York: Seven Stories Press.
Department of Corrections. (2007). Over-representation of Maori in the criminal justice system: An exploratory report. Wellington: Department of Corrections.
Eckermann A (1999) Aboriginal Education in Rural Australia: A Case study in frustration and hope, Australia Journal of Education, 43:5.
Feierabend I and R Feierabend (1966) Aggressive behaviors within polities, 1948-1962: a cross-national study. Journal of Conflict Resolution 10 (September): 249-271.
Garland, D. (1990) Punishment and Modern Society, Oxford: Clarendon Press.
Galtung J (1970) Feudal systems, structural violence and the structural theory of revolution. Revista Latinoamericana de Ciencia Politica 1 (1), 25-79.
Ignatieff, M. (1978) A Just Measure of Pain: The Penitentiary in the Industrial Revolution 1750-1850, London: Macmillan.
Khan R (1978) Violence and socio-economic development. International Social Science Journal 30 (4), 834-857.
McIntosh T and Radojkovic (2012 Exploring the Nature of the Intergenerational Transfer of Inequalities Experienced by Young Māori people in the Criminal Justice System. In D. Brown (Ed.), Indigenising Knowledge for Current and Future Generations (pp. 38-48). Auckland:Nga Pae o Te Maramatanga.
Morrison, B. (2009). Identifying and responding to bias in the criminal justice system: A review of international and New Zealand research. Wellington: Ministry of Justice.
Ministry of Justice. (2006). Cabinet paper ‘Effective Interventions’. Paper 4: Remand in Custody. Wellington: Ministry of Justice.
Nadesu, A. (2009). Reconviction patterns of released prisoners: A 60-month follow-up analysis. Department of Corrections: Wellington.
National Health Committee. (2008). Review of research on the effects of imprisonment on the health of inmates and their families. Wellington: Ministry of Health.
Webb, R. (2011). Incarceration. In Māori and social issues (Eds. T. McIntosh and M. Mulholland). Huia Publishers: Wellington.
Workman, K. (2011). Māori over-representation in the criminal justice system – does structural discrimination have anything to do with it? Discussion paper published by Rethinking Crime and Punishment. Retrieved from: http://www.rethinking.org.nz/assets/Newsletter_PDF/Issue_105/01_Structural_Discrimination_in_the_CJS.pdf
[1] http://www.lawsociety.org.nz/__data/assets/pdf_file/0006/68541/United-Nations,-Universal-Periodic-Review-17-6-13.pdf.
[2] Criminal Investigation (Bodily Samples) Amendment Act 2009
[3] Parole (Extended Supervision Orders) Amendment Act 2009
[4] Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010;
[5] Sentencing and Parole Reform At 2010