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Crime and Punishment: Will freeing more prisoners work?

Monday 16th July 2018

Grisly attacks and brutal murders convinced New Zealand that criminals should be locked up for longer. Now, with jails bursting at the seams, the government wants to slash prisoner numbers. Will Kiwis panic, or get behind the changes? Susan Strongman reports.

Justice Minister Andrew Little. Photo: Richard Tindiller. Graphic: Luke McPake.

On a cold Christchurch morning in July 1997, Nan Withers was brutally beaten with a jack handle while she was minding her son Norm’s menswear store. The 71-year-old’s attacker was on parole for armed robbery. He’d come into the store, which sold socks for $1, and admired a black fisherman’s knit jersey. “If Norm was here, dear, he’d want you to try it on,” Nan said to him, before he cracked her skull.

That night, on the six o’clock news, Norm told New Zealanders: “I’m sick of this crap that’s going on in our society and I’m gonna do something about it.” He started a petition that gathered enough signatures (he remembers there being about 350,000 all up) to force a referendum. In 1999, 92 percent of people voted ‘yes’ to the question, 'Should there be a reform of our justice system placing greater emphasis on the needs of victims, providing restitution and compensation for them and imposing minimum sentences and hard labour for all serious violent offences?'

The government listened, and changed the law, making it harder for violent offenders to be released back into the community.

Fast forward to 2018. The crime rate has dropped steadily since 1992, and is currently at levels last seen in the late 1970s. But, in 2016, the number of prison inmates topped 10,000 for the first time. It now sits at about 10,600. New Zealand’s imprisonment rate is about 220 per 100,000, compared to the OECD average of 147 per 100,000, and it’s rising.

Justice Minister Andrew Little is leading a push to reduce the prison population by 30 percent over the next 15 years. He has a big challenge ahead of him, and the first hurdle will be convincing the public they’ll be safer for it. For the last three decades, conversations around crime and punishment in New Zealand have become vociferous and punitive, and successive governments have supported a retributive, rather than restorative approach to imprisonment.

The Prime Minister’s former chief science advisor Sir Peter Gluckman says the reason we’ve locked more and more people up is because media-driven panic has stoked fear: “We keep imprisoning more people in response to dogma not data.”

Is he right?

***

New Zealand was already in a state of shock when Nan Withers was left for dead by the man wanting cash from her son’s shop’s till. Swedish tourists Urban Höglin and Heidi Paakkonen had been murdered in 1989, and in 1990, 14 people had died in the Aramoana massacre. In 1992, the Dominion reported that the government’s Crime Prevention Action Group was established in response to “a spate of murders … that left New Zealanders horrified and questioning what had happened to a formerly safe and relatively crime-free country”.

Another spate of alarming crimes followed. In May 1992, South Auckland farmer Brian Schlaepfer killed his wife, his three sons, a daughter-in-law and a grandson, before shooting himself. The following month, in Masterton, Raymond Ratima killed seven of his family members, including his three young children. Around this time, New Zealand’s crime rate hit an all-time high.

Soon after, Peter Ellis went to prison after rumours emerged of satanism and ritualistic sexual abuse of preschoolers at the Christchurch Civic Creche. In 1994, five members of the Bain family were shot dead in Dunedin and Stephen Anderson shot and killed six people, including his father, at a ski lodge in Raurimu.

But it was in the early 2000s that momentum around tougher sentencing really gathered. The year after the referendum initiated by Norm Withers’ petition, a kitchen sink salesman named Mark Lundy bludgeoned his wife and 7-year-old daughter to death, and in December 2001, five months after William Bell was released on parole, he shot three people dead at the Panmure RSA and bashed their bodies with the butt of his shotgun.

That same year, the tough on crime lobby group Sensible Sentencing Trust was established, pushing hard-line anti-crime rhetoric. A march organised by the trust two weeks before the 2002 general election was covered by media and attended by Corrections Minister Matt Robson and opposition leader Bill English. Many of the 900 attendees held handmade wooden crosses bearing the names of murder victims.

Law and order had become the dominant election issue, and before the Labour government was re-elected, Justice Minister Phil Goff introduced the Sentencing and Parole Reform Bill. The day before details of the bill were released, Goff called Norm Withers to tell him of the proposals it made. The bill’s explanatory notes said the legislation addressed concerns raised by the referendum.

The law change increased the proportion of the sentences served by sexual and violent offenders and established the Parole Board, handing it the power to release or retain prisoners. The prisons system is highly sensitive to the proportion of sentence served. If, for example, it increased from 75 percent to 85 percent, about 900 new beds would be needed. Between 2003 and 2009, the prison population soared by 34 percent. New prisons had to be built and inmates began to share cells - a controversial practice known as double bunking.

If no further changes to legislation had been made after 2002, most of the impact of the Act would have been seen by 2008, and prison population growth would have slowed.

But in July 2006, having served 14 years of a life sentence for killing lighting technician Paul Anderson, Graeme Burton - a colossal man at 2 metres tall and 111kg - was paroled to the Wellington home of his biological mother, a woman he barely knew.

Burton struggled to reintegrate. He felt isolated and had difficulty making friends with anyone other than criminals. He soon broke his parole conditions, committing a series of armed assaults on Wellington drug dealers, accumulating a cache of firearms, and using methamphetamine. Then, on the evening of Saturday, 6 January 2007, in the hills behind Wainuiomata, Burton shot four strangers and stabbed and killed Karl Kuchenbecker, before being arrested.

An urgent debate was called in Parliament. “New Zealanders deserve to know that when people are released on parole there is a good reason why they are released, and they deserve to know that if people violate their parole, something will happen and they will be recalled,” opposition leader John Key shouted across the table. “New Zealanders are pretty darned confused now. They do not know what zero tolerance means under a Labour government.”

In October 2007, the Parole Amendment Act came into force, incorporating changes that addressed issues raised by the Burton incident, and making it even more difficult for prisoners to get out. In October 2008, a month before the General Election, Key announced the National Party would abolish parole for some violent repeat offenders - like Burton and Bell - under its proposed "life means life" policy. In November Key became prime minister.

Between 2008 and 2010 the prison population crept up 8 percent. The biggest increase was yet to come.

***

About 7am on Monday 7 November 2011, Akshay Chand stabbed 18-year-old Christie Marceau 10 times with a kitchen knife. Chand, who Marceau knew from primary school, was on bail at the time of the murder, having been charged with kidnapping, assault and threatening to rape and kill Marceau two months earlier. His bail address was less than 400 metres from the Marceau family home.

In February 2012, the Sensible Sentencing Trust launched the ‘Christie’s Law’ campaign, with a petition that demanded changes to the Bail Act. Six months after Marceau was stabbed, her mother Tracey Marceau delivered the 58,000 signature petition to Parliament. It called for legislation to deny violent offenders the right to bail and demanded that judges be held accountable for bailing offenders who went on to commit serious crimes. In May, Justice Minister Judith Collins introduced the Bail Amendment Bill. In a submission on the bill, Tracey Marceau wrote: “Christie was stabbed to death in our home because the law was too weak to allow her to have the right to life.” She requested the amendment be named after her daughter, who she called “New Zealand’s angel”.

The bill, which former Green Party leader Metiria Turei described as “a very blunt tool”, passed its third and final reading in August 2013. The new law made it harder to get bail, leading the number of people remanded in custody, awaiting trial or sentencing, to skyrocket. The remand population has more than doubled since 2000. It now makes up between 28 and 30 percent of the total prison population - close to 3000 people.

But has locking more people up for longer periods of time actually made us safer? A survey suggests New Zealanders don’t think so.

Despite the crime rate dropping steadily since 1992, 70 percent of New Zealanders surveyed in 2016 thought it had increased and 16 percent thought it had stayed the same. Most people said they did not have confidence in the criminal justice system, yet most said they knew “a little” or “nothing at all” about it.  

So where did they get the idea that crime had increased? The proportion of people who used social media as one of their main sources of information about crime grew from 29 percent in 2014 to 45 percent in 2016. Most respondents got their information about crime from newspapers and television, while only 12 percent had personal experience of crime. Media coverage of reported crime tends to focus on murder and other rare drug or violence related crime, especially when they involve children - either as victims or perpetrators.

Academic and former newspaper editor Judy McGregor says crime stories often come from a single source, portray victims as celebrities, heighten emotion and include calls for retribution. The longstanding media tradition of, ‘If it bleeds, it leads’, highlights this, and overseas, one-off, serious criminal events have generated pro-punitive movements that have derailed reform programmes completely.

***

Fa’afete Taito spills out of the chair he is sitting in at a West Auckland garden centre cafe. He is an immense man, in his mid-50s, with neatly trimmed hair and a beard that is white at the chin. He speaks so softly it’s hard to hear him over the cafe’s racket.

Asked how many times he’s been to prison, Taito leans back, looks at the ceiling and softly counts to himself: “Two, three, four, five, sss-oh yeah, six, if you count Owairaka. Which I do, because lockup is lockup to me.” Owairaka is Owairaka Boys’ Home, where he was sent as a ward of the state, as a 14-year-old. He’d started to run away from home as a 12-year-old to escape the beatings doled out by his strict father.

Thus began Taito’s life as a career criminal. Some of the boys at Owairaka taught him to rob houses and steal cars. He was about 16 when he was sent to Waikeria Prison for burglary and assault. At 17, he spent three months in the Mt Eden prison basement. He says the area had 12 cells, each shared by eight to 10 adult prisoners. By this time, Taito was involved with gangs. In prison they were all there - the Mongrel Mob, the Head Hunters, the Highway 61s, the Filthy Few, the Hell’s Angels and the King Cobras. He says you learnt quickly who to stay away from once you were inside. You learnt to look after yourself, you learnt new ways to survive.

Did prison make him want to stop offending? “Yeah, nah,” Taito says. “Once you’re in that environment, that’s it. Your whole being is now in that environment. Is there a chance to get out of it? Of what? To where? For what? Nah, you’re there.”  

New Zealand’s prisons are full of people with back stories similar to, or worse, than this. More than three quarters of prisoners have been victims of violence and about 65 percent have low literacy and numeracy skills. More than half are Māori. Prisoners are more likely to have come from poverty. They have addiction problems - alcohol, meth - and they struggle with mental health issues like post-traumatic stress disorder. Ninety percent of people who go to prison before they turn 20 will have prior involvement with New Zealand’s child state care agency, and 15 to 24-year-olds make up about 40 percent of arrests in New Zealand.

Does prison unravel some of these people’s issues? Taito says no, and the statistics do too. Once people get out of prison, there’s a high likelihood they’ll reoffend within two years - 60 percent overall, 66 percent for Māori, 75 percent for gang members.

Yet plenty of people still believe putting offenders in prison makes society safer. And prisons do keep certain individuals - like Burton, Chand and Tony Robertson, a child sex offender who was not long out of prison when he murdered mother of three Blessie Gotingco - off the streets. But Andrew Little says the Burtons and Robertsons of the world are not the focus of the law changes he wants to make. “Prison is the right place for some people, but I don’t think that it’s the only place for nearly 11,000 people forever.”

He says many current prisoners are “lower level” repeat offenders who have issues with drugs and alcohol, or mental health, that have never been addressed. “With a bit of effort and a bit of time, we can actually make change, we can stop them offending and we can keep the community safer from them.” At present, this is not what’s happening. Little says recidivism rates show the system is ineffective.

According to the Prime Minister’s Chief Science Advisor Sir Peter Gluckman, prisons actually reduce public safety by increasing further criminal behaviour both of individual prisoners and their children, who are five times more likely to go to prison themselves. He also says resources are “overwhelmingly directed to those already in the criminal-justice system, not to the prevention of their getting there”.

After spending 40 years of his life going in and out of prison, Taito says he did not know how to live in mainstream society. He was released In 2006 after doing five years for drugs charges. He intended to “go straight” and to focus on his family.

That plan came to an end the minute he was let out. “My choice was determined by the environment that I had always lived in… I didn’t ‘get’ mainstream society. It’s a daunting thing … the idea of going straight. I’d rather face gang members with guns… I just couldn’t think of a worse thing to do than going back to mainstream.”

In prison, he’d done the rehabilitation programmes, got his welding ticket, learnt to operate a crane. But he’d been a criminal for 40 years. He had no formal education. He couldn’t see the way forward. He went back inside.

He’s since been released, and this time he’s managed to stay out of prison. He moved to a different part of town, cut ties with all but his immediate family, got himself off meth and now holds a degree in sociology and Māori.

***

“No one is forced to commit crime,” Norm Withers says. “But they’ve got to take the consequences.”

He is still angry about the attack on his mother. She needed 75 stitches in her face and head. He says it ruined her life, and he still thinks New Zealand’s laws are not punitive enough: “I don’t want to sound like a redneck, but I’ve said it all along: Singapore has got the answer [corporal punishment in the form of caning]. You know the rules over there, and if you break them, you pay the penalty.”

Withers says if Little truly thinks he can reduce the prison population in a way that will keep communities safer, he’s dreaming. In regards to reforming offenders, he says, “Leopards don’t usually change their spots.” He accepts that prisons cost taxpayers a lot of money (the law and order spend has tripled since 1996, grown twice as fast as any other category of government spending since 1972 and three times faster than GDP) which is why he maintains that inmates should be working to pay their way. “It’s the safety of the community that is paramount. If it costs us, it costs us.”

Victim advocate and former Sensible Sentencing Trust spokeswoman Ruth Money says she sees there is a need to reduce the remand population and focus on reducing recidivism, but she’s not convinced that repealing laws will help. “I wouldn’t want to wind the clock back and make changes that risk public safety.”

Money thinks the solution to the problem of high remand numbers is to make the courts system more efficient. “I don’t want a knee-jerk reaction of ‘there are so many people in prison, they’re on remand, let’s empty them out’, I want a strategic piece of work that looks at what type of offenders are being held on remand, and why is there such a delay between callovers and court appearances,.” she says. “Let’s start a conversation about how we look after young people who are offending, how do we break that cycle, how do we stop the recidivist criminals, how do we genuinely rehabilitate, how do we get the system back to being efficient.”

Money admits that she and Little are somewhat on the same page - neither want to see people reoffending. But she says they have come from a different starting point: Money is staunchly on the side of the victims. “Everyday I spend time with survivors of the most horrific crimes… Some of those people that commit those crimes should never be allowed out.”

***

The prison population is forecast to increase to more than 13,400 in the next 10 years. If nothing changes, a new prison will be needed every two to three years. The average cost of housing a prisoner is $100,000 a year.

In a February briefing, Ministry of Justice officials warned that prisons would become severely overcrowded, rehabilitation services would need to be cut back and the prison system would ultimately fail if the projected population did not fall by a certain date (the date was redacted from a document obtained under the Official Information Act). The briefing continued: “Furthermore, given the currently highly stressed state of the prison network, a third of this reduction would need to be fully realised before the end of 2019.”

It said laws must be changed to stop the demand for prisoner places - these include the three strikes, parole, and bail legislation. Money would be needed to support people on bail and parole, who would normally be imprisoned. Investment would also need to go into operational changes to divert people away from the prison system.

Changes within the prison system have already begun. These include the employment of extra Corrections staff to help prisoners apply for home detention and electronic bail. Little hopes these reforms will gain traction, allowing changes to legislation to be tabled next year. “To make the law changes, we’ve got to have good public debate, get a lot of voices in it, and get what I describe as a ‘social licence’.”

Getting that social licence - convincing the public that these changes will make them safe - and gaining the support of the Labour government’s coalition partner New Zealand First, is one of the biggest hurdles he faces.

In July, his first attempt failed. A proposed repeal of the three strikes law was unable to be brought before cabinet without the vital support of New Zealand First. On the morning the matter was to be tabled, a full-page advert from the Sensible Sentencing Trust ran in the New Zealand Herald. The ad showed a letter, signed by victims of violent crimes and their families (including Norm Withers), in which the trust urged Little: “Please do not do this. We are living breathing people and the representatives of the dead and future victims, not collateral damage arising from your ill considered politics.”

Opponents of prison law reform would “leap immediately to ‘they’re gonna let out all the rapists and the murderers’” Little says. “And we’ll wear that to some degree until we’ve got the means to get out some good information to the public… I think a lot more New Zealanders are now open to the debate about what we can do differently, because most people can see that actually, just locking more people up and locking them up for longer isn’t really working.”

But statistics on New Zealanders’ perceptions of crime tell a different story, and media-fuelled panic over crime could jeopardise any possibility of making long-term improvements.

On 21 and 22 August 21, Little will host a symposium in Porirua on prison law reform to convince the public that people - even prisoners - can be changed in a way that is better for everyone. An advisory group will work on ways to reduce offending and reoffending. Members include Money, criminal justice reform advocate Julia Whaipooti, former National Party Associate Justice Minister Chester Borrows and academics Dr Warren Young, Professor Tony Ward, Professor Tracey McIntosh, Dr Carwyn Jones and Dr Jarrod Gilbert.

Little is calling the summit the “first step” towards “fixing our broken criminal justice system”. The Sensible Sentencing Trust is calling it “a predetermined farce [and] a total waste of taxpayer money,” that “will release findings that are at best worthless, and at worst – and far more likely – downright dangerous for the law abiding citizens of New Zealand, whatever their race”.

Time will tell which one of those labels will stick.