Thursday 18 December 2014

Mythology Parading as Opinion – Mike Yardley and Restorative Justice

by Kim Workman
 The great enemy of truth is very often not the lie -- deliberate, contrived and dishonest -- but the myth -- persistent, persuasive and unrealistic. Too often we hold fast to the clichés of our forebears. We subject all facts to a prefabricated set of interpretations. We enjoy the comfort of opinion without the discomfort of thought.
President John Kennedy

Commencement Address at Yale University, June 11 1962 [1]
 This is the time of the year when social commentators compile their personal list of Media Awards; the Best, the Worst, the best piece of investigative journalism, and so on. 
I have always lacked  the analytical incentive to classify, file, and rank media stories so that  I could come up with a personal list of awards in the area of crime and justice.  On quick reflection,   Nigel Latta’s documentary ‘Nigel Latta:  Behind Bars’, was the most thorough treatment on prisons in New Zealand society that I have seen.      The range of contributors to the documentary  and the broad spectrum of views was outstanding. 

The piece that I found the most annoying (until yesterday) was Seven Sharp’s  cavalier and arrogant treatment of Justspeak’s Lydia Nobbs, who was interviewed about its outstanding publication, “Unlocking Prisons – ReducingNew Zealand’s Prison Population”.  I lambasted it in an earlier blog , ‘Seven Sharp and Penal Policy – Let’s Do theTime Warp Again.' 

I was irritated because Mike Hosking, who usually does his  homework and bases his opinions on good information, failed to do so on this occasion.  Rethinking has always taken the view that journalists and paid commentators have a social, professional and ethical responsibility to base comment and opinion on fact.   I made the point that news and media comment is more readily available and influential , than ever before and that;

 “while viewers have become more aware of crime and punishment issues, their framework of understanding is shaped by the media.  When Seven Sharp makes ‘authoritative’ statements about prisons, punishment and public opinion – the public takes them at face value.”

Media should present a wide range of views about matters of public interest, and media commentators are as entitled as anyone else to voiice a personal opinion .  However, one would expect journalists and professional media to meet a different and higher standard, than those whose responses are nothing much more than a gut reaction to an issue.  I was annoyed with Mike Hosking for failing to reach that standard.

However, his place at the top of my personal media award list for lazy and irresponsible journalism, is now occupied by Press columnist, Mike Yardley.  He is an Award-winning broadcaster on Travel and Current Affairs and  syndicated columnist and  correspondent on radio, in print and online. His recent Opinion Piece,  ‘Restorative Justice of Little Benefit to Victims”  was probably a response to Restorative Justice Aotearoa’s media release of 8 December,  ‘Victims to have a greater say on restorative justice’

Mike Yardley was beaten to the draw by Manawatu Standard’s Jono Galuszka, who did a great job of  raising concerns about the new legislation, in an article New laws may lead to court delays’ .  Jono took the trouble to speak to people.  He talked with Mike Hinton of Restorative Justice Aotearoa, and a Horowhenua couple,  John and Lynda Timmer-Arends whose son had been murdered.  The Timmer-Arends  had two concerns which are raised regularly about restorative justice.  First, the recurring belief that people will be forced into a restorative justice conference against their wishes.  It is always a voluntary process, and one in which either the victim and offender can choose not to participate, at the outset, or during the process.  The second prevailing view, is that it should not be used in serious cases.  That was a widely held belief twenty years ago – the evidence since then has proved us wrong.  Restorative justice is more effective in crimes of violence than in property crimes.  The more serious the violence, the more likelihood that restorative justice will provide satisfaction to the victim, and reduce reoffending on the part of the offender. 

Mike Yardley’s opinion piece, which followed a week later,  ‘Restorative Justice of Little Benefit to Victims’ (16th December), (16th December 2014) is one of the most appalling and inaccurate pieces of criminal justice journalism that I have read in recent times. 

Restorative Justice of Little Value to Victims

OPINION: Pop your head into any Canterbury court and you'll find the wheels of justice are grinding ever slower.

Last week heralded a quiet revolution to the sentencing procedures in district courts, whereby virtually every case involving victims that results in a guilty plea will be adjourned.
No longer will offenders be swiftly sentenced after a guilty finding. The presiding judge is now compelled to park up the case, under Section 24a of the Sentencing Act, while considerations are given to convening a restorative-justice conference.

This new touchy-feely provision, which applies to offending right across the board, will surely compound what can already be the glacial pace of court, as restorative justice providers set about determining the willingness of offenders and victims to have a come-together.

The Ministry of Justice is spending mega-bucks contracting teams of restorative-justice facilitators to implement this bureaucratic malarkey.

Restorative Justice Aotearoa, the national body of facilitators, is heaping praise on the change, which pre-supposes every victim wants to face his or her offender over tea and biscuits.

The system's new opt-in position is a bit like KiwiSaver, whereby victims will have to actively opt out of a restorative-justice process.  Plus, the court must adjourn proceedings to allow facilitators time to readily identify a victim.
 Let's suppose I have pleaded guilty to possessing methamphetamine for supply. Is every prospective buyer and their families, who will be the real victims, going to be somehow corralled into a conference?
What about the recidivist burglar of 30 properties? And just how much time and money is going to be zapped trying to cajole people to take part?

The Sensible Sentencing Trust is pillorying the new regime, arguing that restorative justice should only apply in situations where it's possible for the victim to have restored to them whatever they may have lost as a result of an offence. For example, the theft of a bike or damage to their letterbox.

But serious violence, really?

Sensible Sentencing's biggest beef is that these restorative justice conferences are actually offender-driven. They will be taken into consideration as part of sentencing, potentially resulting in brownie-points and lighter penalties.
Doesn't that make a mockery of the much-vaunted philosophy of placing the victim at the centre our justice system?   
The New South Wales model strikes me as a far fairer approach, whereby victim-offender conferences can occur only post-sentence, and often in conjunction with rehabilitation programmes at the end of a sentence.

Justice delayed is indeed justice denied.

We've just added another overcooked, money-sucking monkey wrench to its timely delivery.
 - The Press

 There was a prompt on-line response from Professor Chris Marshall, the Diana Unwin Chair in Restorative Justice, Victoria University of Wellington

I wonder whether Mike Yardley has ever talked to victims who have been through what he derides as a "touchy feely" process of meeting with those who injured them "over tea and biscuits"? I sincerely doubt it. Nor has he probably acquainted himself with the masses of international research that shows over 80% of victims who attend restorative justice meetings express satisfaction with the process and would recommend it to others. Restorative justice, unlike the conventional justice system, approaches offending from the perspective of victims and seeks primarily to address their needs. And no one is ever "corralled into a conference"; the process is entirely voluntary. As for the assumption that restorative justice may be ok for theft of a bike or damage of a letter box but not for serious violence, the research shows just the opposite. The greater the harm suffered by victims, the greater the potential of restorative justice to help. Its all too easy for arm chair critics to decry the process as offender driven and of little help to victims. Sit with actual victims and participate in actual conferences and things look different. Recent changes to legislation will certainly bring many challenges to court processes. But they are, in my view, undoubtedly moves in the right direction - and primarily for victims.
Professor Chris Marshall,
The Diana Unwin Chair in Restorative Justice,
Victoria University of Wellington

Mike Yardley’s views come straight out of the Sensible Sentencing Trust’s Songbook;  these specious and unsubstantiated claims have been part of its lexicon for years.  He was  quick to take up Sensible Sentencing's beef that restorative justice conferences are  offender-driven.  However, his claim that the recent changes in legislation make “a mockery of the much-vaunted philosophy of placing the victim at the centre our justice system” don't stand up to even the most superficial scrutiny.
He refers to Section 24a of the Sentencing Act, but fails to mention the other measures that were passed under the legislation.  The former Minister of Justice, the Hon Judith Collins, when she announced that the legislation had been passed on 27th May, rightly claimed that the  legislation "put victims at the heart of New Zealand’s criminal justice system".  Her  media release “Bill to Strengthen Victims Rights Passes Into Law’ made it clear that the legislation:

  • Made agencies more accountable for delivering quality services for victims; 
  • Required the Ministry of Justice to develop a Victims Code that outlines victims’ rights and the service available to victims;
  • W idened the eligibility of victims able to register on the Victims Notification System so that they can stay informed about the offender;
  • Extended the rights of victims to also apply to victims of youth crime.
Ms Collins also pointed out that the Bill widened the scope of the Victim’s Impact Statement to give victims of serious offences the right to read their statement to the court.

Follow the New South Wales System?  Where Did That Come From?

At the end of the article, Mike Yardley promotes the NSW restorative justice system as the preferred model, ‘whereby victim-offender conferences can occur only post-sentence, and often in conjunction with rehabilitation programmes at the end of a sentence.'
It is clear that he has never bothered to study the NSW restorative justice system  - this is a comment that comes straight from Sensible Sentencing’s website, which has recommended for some time that New Zealand should adopt the NSW system,  which (it claims) “has not been plagued with some of the problems experienced here in New  Zealand”.  In order to do that, New Zealand would need to comply with a number of caveats, which are outlined on the SST website.
Earlier this year I checked my understanding of the NSW system with Kate Milner , Director Restorative Justice, Department of Corrective Services, New South Wales.  I sent her the list of ‘caveats', and asked her to comment on whether they were an accurate representation of the NSW system. 

Here is her response and correction of SST’s 'caveats'; 
  • SST Caveat No 1:  In New South Wales, restorative justice is victim driven, rather than offender driven, and focuses  on the offender having an obligation to their victim to try and repair the harm done by their crime.
  • CSNSW’s Response:  CSNSW accepts referral from either victims of crime or offenders.  A small number of victims of crime specifically say that they would only participate if the process is offender initiated as this would reflect remorse and responsibility taking. About one in eight offender referrals results in either a victim-offender conference or an alternate RJ process (VOM / indirect mediation).
  • SST Caveat  No 2: In New South Wales, restorative justice takes place post-sentence rather than pre-sentence, and therefore will not be taken into consideration as part of sentencing, and cannot be rushed through prior to sentencing just to earn a sentence reduction.
  • CSNSW Response:  Whilst our practice is post-sentence, in NSW there are pre-sentence programs: Youth Justice Conferencing (Juvenile Justice) and Forum Sentencing (Attorney Generals).  We are of the belief that best practice RJ should be available to victims of crime at any stage of the CJ process.
  • SST Caveat No 3:  In New South Wales, Restorative Justice meetings are combined with and only occur in conjunction with rehabilitation programmes at the end of a sentence.
  • CSNSW Response:  CSNSW accepts post-sentence referrals at any time.
  • SST Caveat No 4:  In New South Wales, restorative justice outcomes have no influence on parole hearings – no reports are `submitted to the parole board regarding restorative justice meeting outcomes when considering release.
  • CSNSW Response:  Objective closure summaries, with no subjective comment regarding the writer’s perceived success of victim offender conference are available to the State Parole Authority.
  • Sensible Sentencing Trust also considers that no person with a serious criminal record should work in Restorative Justice as a facilitator or in any other voluntary or paid capacity. Everybody must be screened and full Police checks carried out, along with mandatory training. That is already the situation in New Zealand, with full Police checks and enquiries made, so that consideration may be given to the suitability of persons to train as a restorative justice facilitator.  The same approach applies in NSW. 
  •  CCNSW Response:  All CSNSW staff undergo rigorous criminal record checks and RJ facilitators receive formal training in the TJA conferencing model and on the job training in the practice of RJ in response to serious crimes committed by adults.
In conclusion, Kate Milner had this to say:
“Research recently undertaken by UNSW indeed supports the fact that our model is highly successful in addressing the unmet justice needs of victims of crime and offenders. We however strongly support a vision for RJ, that is inclusive of the person responsible and those directly harmed, being available at every juncture of the justice process.”
Those who are interested , can read more about their approach on the new CSNSWwebsite.  

In other words, Sensible Sentencing’s caveats are a fabrication.  Why then,  did Mike Yardley express a view that is totally inaccurate and untrue? 

The answer is simple.  The Sensible Sentencing Trust is a haven for lazy media professionals.  Go to Sensible Sentencing, and you will get what lax journalists want – provocative headlines that sell newspapers.   On this occasion, as has happened before, Sensible Sentencing became a source of ‘expert’ opinion, while criminal justice professionals and those  highly knowledgeable in this area were overlooked.  Populist attitudes trump research any day. 

Mike Yardley has been caught with his pants down, making claims about the New South Wales restorative justice system which are untrue; but it was  Garth McVicar  who loosened his belt.  Anyone who chooses to accept  Sensible Sentencing’s claims without checking at the source, deserve what they get. 

Rethinking Crime and Punishment position is clear.  It  is in the business of  informing citizens, the mass media, practitioners, policy-makers and politicians about what works in reducing crime. In the process it highlights the flaws in quick and dirty research, identifies populist measures that have no evidential basis, and identify approaches that will get better results. 
What do we want in our Christmas stocking?  Informed public opinion that encourages truth telling and honesty. No more ‘knowledgeable claims  unsupported by evidence.  Let’s make 2015 a year in which professional journalists do their homework, and put out informed views that have basis in fact. 


Sunday 9 November 2014

Does Racism Exist Within Youth Justice? - Banging Ministerial Heads Together

by Kim Workman

It wasn’t a great start to the next three years.  On one hand, the Minister to Maori Development puts the case publicly for institutional racism within the Justice system – and the outgoing Minister of Police denies its existence.   

A familiar duet, sung  to a familiar tune;

It seems to me I've heard that song before
It's from an old familiar score
I know it well, that melody

Lyrics  from ‘I’ve Heard that Song Before’ (Jule Styne, lyrics by Sammy Cahn)

How did this happen?  In September, Anna Leask, senior Police reporter for the NZ Herald, reported on the significant drop in youth court appearances.  In an article, ‘Youth Court appearances at a 20 year low” (30 Sep) based on the latest statistics , she reported that in 2011/12, 999 young people were sentenced in the Youth Court, compared with 1152 in 2010/11. 

The then Minister of Justice the Hon Judith Collins was reported to be pleased with the result, and announced that a new youth crime target had been set, to reduce offending  by 25 per cent by 2017.  As she pointed out:

"From June 2011 to June 2013, youth crime dropped 19 per cent. We know that a key to reducing crime long-term is to stop young people entering the court and justice system in the first place.”

This followed on from an earlier media release by the same Minister, when on the 26th March, she announced that:
 “The number of young people facing court charges has fallen to the lowest level since records began more than 20 years ago.
The latest Child and Youth Prosecution Statistics show the number of children and young people (aged 10 to 16 years) appearing in court in 2013 decreased from 3,012 to 2,487 – the lowest number since the statistical series began in 1992. Since the peak in 2007, the number of children and young people in court has halved from 5,061 to 2,487 – a drop of 51 per cent.
“The key to reducing long-term crime comes from a collaborative effort to stop young people from appearing court in the first place,” Ms Collins says.
“The Justice sector has renewed its focus on targeting youth offending and keeping young people from appearing before the courts; and the hard work is paying dividends.”
The Herald followed through with an editorial, “Drop in youth crime figuresheartening turnaround” (3 Oct 14)  speculating on the reasons for the turnaround, and  supporting the shift.  There was no mention in either release as to how well Māori   youth had fared as a result of the reduction. 

At about the same time, Fairfax  journalist Neil Ratley was working on a similar story when  he noticed something significant.   Six years ago, Māori   represented 48 per cent of youths facing charges in the Youth Court. The latest figures reveal that had jumped to 57 per cent.  He canvassed the views of a number of people about this increase, (including myself) and the response of Minister of Māori   Development, the Hon Te Ururoa Flavell, hit the headlines:

“A review of the justice system was long overdue and would back up the research and statistics that indicated there was institutional racism in the justice system, he said. "I believe that for many Māori  , the justice system is filled with bias, prejudice and institutional racism."

Flavell said the failure to address institutional racism was a factor in the increasing rate of representation of young Māori   in the justice system.

"Māori   are four to five times more likely to be apprehended, prosecuted and convicted than non-Māori   counterparts, and in the case of Māori   aged between 10 and 13 this is six times more likely. How can we ignore the existence of institutional racism in the justice system in the face of facts like these?"

Outgoing Police Minister Anne Tolley disputed the claims of racism.
"Police prosecute people because they commit a crime, not because of their race," she said.  "There are a number of factors that explain Māori   over-representation in the criminal justice system, including a number of gangs that have very high Māori   membership.  These gangs are responsible for high levels of serious crimes, they have high re-offending rates and their children are at high-risk of abuse and juvenile offending."
Former Associate Justice Minister Chester Borrows was more careful.  While he considered that the  Youth Crime Action Plan introduced last year to reduce youth offending was paying dividends, the fact that Māori   were over-represented in the youth justice system continued to be a challenge.

Politicians and the public have a bad habit of identifying the Police as the primary culprits when talking about allegations of institutional racism within the justice system.  The evidence is that while the Police are the public ‘face’, and have more frequent encounters with Māori   than do other parts of the system,  institutional racism where it is shown to exist, is spread throughout the system, and not confined to the Police.
On this occasion, the Police response was both measured and sensible.  In an interview on ‘Te Manu Korihi’ (14 Oct) Police Superintendent Wally Haumaha responded;
Police Commissioner Mike Bush has recognised that there could be issues of unconscious bias in the force. "This is a conversation that happens across society and the country, and there are issues where institutions have been cited around these areas. But if I look at the overall police values, we have added on top of the others diversity and empathy.   If anyone in the force isn't acting appropriately, they will soon be discovered.” 
In the same interview, Julia Whaipooti, of Justspeak, who works in the community, confirmed the existence of ethnic profiling by those working in the criminal justice system. 

Both Te Ururoa and Anne Tolley have received a copy of our latest Epub, “What Do I have to doto Change Your Mind?  Changing Attitudes toward Crime andPunishment" – but it is clear neither have read it.  

Radio Waatea’s Dale Husband, suggested they do so, in a media release, ‘Document a mind-changer on crime’.  (13 Oct)

Māori   Development Minister Te Ururoa Flavell may have to employ the latest resource from lobby group Rethinking Crime and Punishment on his cabinet colleagues.  The Māori   Party co-leader wants a review of institutional racism in the justice system in light of the way Māori   are making up a growing percentage of young people before the courts, despite falling youth crime rates.
He is already facing push back from cabinet colleagues who deny race is a factor in who police choose to apprehend and prosecute.  Rethinking spokesperson Kim Workman says new ways of thinking about crime and justice inevitably meet with resistance from politicians, the media, public servants and members of the public, even when these ideas are supported by strong evidence.
That's why the group has brought out the second of its Smart on Crime e-publication series titled “What Do I Have to Do to ChangeYour Mind"  It looks at why people resist new ideas, and strategies to overcome resistance to change."  
How might have this situation been better handled?  Well, according to the research on shaping public attitudes, Te Ururoa’s response was predictable, and is probably due to his social conditioning.  Ethnic profiling and racism is a common experience for Māori and their whanau, and is not confined to the dark ‘under-class’.  A very successful Māori   business woman of my acquaintance recently purchased an Audi motor car.  She was stopped by the Police eight times in two months – and not for speeding.  She has since downsized. 

Even though Te Ururoa’s view can be substantiated by evidence, he failed to connect to a wider public, by not acknowledging that there are other reasons besides institutional racism for Māori over-representation.  

Both Ministers presented information that confirmed their personal identities, values and beliefs, and both failed to acknowledge or refer to information that conflicted with them, or provided a more balanced picture.  

A substantial 2009 Ministry of Justice report ‘Identifying and Responding to Bias in the Criminal Justice System'  found that contributors to ethnic disproportionality included:

  • Responses targeted at reducing offending and re-offending (i.e, differential involvement)
  •  Responses addressing process-related factors within the criminal justice system associated with direct or overt forms of bias (i.e, direct discrimination)
  • Responses focused on the role of neutral legislation, policies, and decision making criteria which result in differential outcomes (i.e, indirect discrimination).
The failure to acknowledge the differential aspects of Māori over-representation, is one of the problems identified by the Ministry of Justice research.  Other problems it identified included:   
  • Funding issues arising from the long-term holistic focus of many responses and the fiscal divisions across, and short-term results required by, government departments
  •  Vulnerability due to an over-reliance on small numbers of indigenous and/or ethnic-minority staff, particularly volunteers
  •  An inability to show that programmes/initiatives work in terms of reducing offending and/or levels of ethnic minority over-representation
  • A disproportionate focus on dysfunctional individuals, families and communities at the expense of addressing the role of structural inequalities and/or the role of the criminal justice system in creating and perpetuating ethnic disproportionality
  • A failure to fully acknowledge the link between colonisation, structural disadvantage and ethnic disparities in the criminal justice system
  • A failure to achieve any meaningful level of indigenous self-determination, ownership or empowerment
  • A lack of government accountability for collecting and publishing relevant administrative data on ethnic minority/indigenous disproportionality in the criminal justice system
  •  Competing state and indigenous/ethnic-minority views about the purpose of programmes responding (albeit often implicitly) to ethnic disproportionality
  • Tensions between crime-control objectives and goals of social/racial inclusion
The Public Response to Institutional Racism

Given the lack of information, the wider public response was predictable.  Garth McVicar, transitioning from Sensible Sentencing to his new role as spokesperson for the Conservative Party, left people scratching their heads.  Predictably, he claimed that pandering to Māori   offenders was the reason young Māori  were offending.  Unpredictably, he said that prisons were a breeding ground for young offenders.  For someone to make that claim after spending the last fifteen years advocating for tougher and longer sentences for both young people and adults, defies logic

The ‘No Minister’ Blog challenged Te Ururoa on the lack of logic in his argument, (and it had a point). 

Lindsay Mitchell questioned Te Ururoa’s statistics, and considered the downward trend for both Māori   and non-Māori   to be positive news; but  without considering why Māori   are not featured in the downward trend to the same extent as Pakeha. 

David Farrar’s‘Kiwiblog’ took a similar position, noting that  the last six years there has been a 46% reduction in the number of young Māori   who have been charged in court.  He  commented: 
"That’s a great result. The reduction for young non-Māori   has been 63% which is even larger. But if both of them are heading in the right direction, I don’t think it is a problem if one is reducing faster than the other. It would be different if both were increasing."
So it’s not a problem if one ethnic group is reducing reoffending at a greater rate than another.  I wonder if he would take the same position  Māori youth offending was reducing faster than non-Māori  youth offending?   That would mean that the Justice system has a firmer grip on Māori offending than Pākehā offending; and presage  a cultural revolution. 

Blogger Cameron Slater presented a view that is shared by many, (including Anne Tolley) 
This is clearly an inter-generational problem that isn’t solved by looking at conviction or incarceration rates. Although there is no doubt in my mind that out of 100 Māori   and 100 non-Māori   that present in court, the Māori   will meet with more severe sentences, unless the reasons Māori   have a higher propensity for committing crimes is dealt to, the system is unlikely to produce different results.
What Cameron Slater and others failed to acknowledge, is that apprehension and prosecution are different  processes.   In  2013, Justspeak pointed out  that Māori  youth apprehended for a similar crime to Pākehā , were more likely to be prosecuted.  They published an infographic to make the point.  

Producing the Evidence

The 2007 Ministry of Justice review does not deny that Māori   commit serious crime, but it also makes it clear that the issue is complex, and points to areas where there is clear evidence of bias.  Rethinking Crime and Punishment’s 2011 paper, “Māori   Over-representation in the Justice System:  Does Structural Discrimination have anything to do with it”  puts the issue squarely;
There is general agreement that adverse early-life experiences, and social and environmental factors contribute significantly to high Māori offending patterns. However, while there is evidence of structural discrimination within the criminal justice system, and allegations of personal racism, there is a general reluctance to conduct research into these areas. The absence of research thus enables politicians and senior public servants to deny that such issues exist, in the absence of clear evidence to the contrary.
In my paper, ‘Māori Over-representation in theCriminal Justice system – does Systemic Discrimination have anything to do with it?” I explore the issues of structural discrimination and personal racism within the criminal justice system, and propose a way forward. The report traces the research from  1998 to 2009 (there has been nothing since), all of which confirms the existence of ethnic bias toward Māori within the system, either as a result of personal racism, systemic discrimination, or a combination of the two.

In a paper to the 2013 Human Rights Diversity Forum, “You Have to Face it to Fix It”
Rethinking concluded with this comment:
“Issues of race and justice are a part of New Zealand society, and there is nowhere where those issues are so painfully obvious as in the criminal justice system. It is the role of our criminal justice leaders, through the Justice Sector Leadership Board, to ensure that policies and practises at the very least do not exacerbate existing unjustified disparity.”
The Failure of the Youth Crime Action Plan (YCAP) to Address Māori   Over-Representation

The Youth Crime Action Plan failed to address this key issue.  The Cabinet paper submitted in support of the Youth Crime Action Plan, referred to three strategies:
  • Partnering with Communities;
  • Reducing Escalation
  • Early and Sustainable Exits          
It identified these three strategies as having the potential to address disparities for Māori  . 
“While the overall numbers and rates of youth crime are dropping, Māori over-representation is growing, and more Māori than non-Māori are  facing charges in the Youth Court.  All three key strategies are designed to address disparities for Māori  . In particular, the partnering with communities strategy is specifically designed to encourage and support communities who want to design, develop and deliver services to Māori  .”
The Cabinet paper went on to say that :
“Improving outcomes for Māori children and young people is a critical objective of the Youth Action Crime Plan.” 
While the issue of Māori over-representation was acknowledged throughout the report, the preferred response was to either do more of the same, or give the issue a higher priority.  That approach is reflected in a recent comment by a Justice CEO that “everything we do, we do for Māori  ”. 

Typical responses in the report to Cabinet were: 
  • Community stakeholders …..highlighted systems and practise issues that require significant improvement – especially for Māori
  • Increase opportunities for early and sustainable exits, particularly for Māori
  • Reduce the flow through the youth justice system by improving integration between agencies and NGO’s – particularly for Māori
  • There is a need to build on evidence about what works best to prevent and reduce Māori youth offending
  • The Action Plan’s approach to partnering with communities is based on the fact that family, whānau and communities are capable of designing, developing and delivering their own solutions
  • Inter-agency, family, whānau and community participation will play an important role in identifying those most at risk
  • Family, whānau and communities are encouraged to build strong foundations for young people……………and are responsive to Rangatahi Māori
The overriding assumption was that Māori overrepresentation within the youth justice system can be addressed if the justice sector agencies improve existing systems and processes. The changes would be driven by justice agencies, and there was little evidence of understanding about the role of whānau and families in being empowered to themselves facilitate those changes.  In the area of Partnering with Communities, it stated that some communities are not yet ready to lead in this way, and local co-ordination will occur by leveraging off existing structures and mechanisms such as Youth Offending Teams.

In summary: 
a)     The YCAP has a very strong systems approach, and sets out in considerable detail, the actions that will be taken over the next three years, the timeframe in which it will be achieved, and by whom.  There seems to be an assumption that this will be sufficient to reduce the level of Māori over-representation;

b)     The Plan also identifies the need to develop cultural awareness and responsiveness to Māori as part of a capability building exercise;

c)      The YCAP completely ignores issues of ethnic bias and structural discrimination.  If it had, we may have seen a different result. 
The 2004 Report  “Achieving  Effective Outcomes in Youth Justice” 

It hasn’t always been this way.  Ten years ago, in a comprehensive report to the Ministry of Social Development, ‘Achieving Effective Outcomes in Youth Justice’ the Criminal and Justice Research Centre at Victoria University, not only acknowledged the existence of institutional racism, but produced evidence for it.  The research showed that “  
  • Young Māori who entered the youth justice system did so with, on average, less severe offences than non-Māori 
  • Young Māori who entered the youth justice system in this study had a similar range  of backgrounds and risks to those who were identified as non-Mäori. In other words, socio-economic factors did not appear to explain the differences in terms of the numbers of Māori young people entering the youth justice system
  • Those who ‘solely’ identified as Māori experienced greater risks than those who identified as mixed-Māori.
  • Young Māori were more likely to receive outcomes involving orders for supervision either in the community or in a residence. This appeared to be independent of the seriousness of their offences
  • Young Māori were more likely to be dealt with in the Youth Court than were young Pākehā (71% compared with 56%). This meant that a more severe range of outcomes were available for these Māori than for those dealt with solely through a family group conferences by the police.
Getting ‘Smart on Crime’

It raises the following questions:
  • Why is it that the existence and issue of institutional racism has disappeared from the political and public sector landscape, and is now actively denied?
  • Why is it that there has not been any significant research or evaluation into this issue since 2009?
  • Why is it that despite the United Nations concern about the level of racial discrimination within the justice system, articulated in a number of reports to government since 2005, has been actively ignored ?  
In a report to the UN Committee on the Elimination of Racial Discrimination the Robson Hanan Trust concluded that, despite the overwhelming evidence over the years that both personal racism and structural discrimination exists, there has been a historical reluctance on the part of successive governments to address this key issue. We do not know for example, whether personal racist and discriminatory attitudes held by individuals or groups of individuals interconnect with institutional practises and processes which result in ethnic bias. At this stage, we cannot tell whether ethnic bias is the result of the nature of the system, or the practises within it. What little research there is, points in the one direction; that the level of structural discrimination in the criminal justice system is unacceptably high. 

On 2 March 2013, the UN Committee reported concern  at the disproportionately high rates of incarceration and the over-representation of members of the Māori and Pasifika communities at every stage of the criminal justice system, and urged the government to intensify its efforts to address the over-representation of members of the Māori and Pasifika communities at every stage of the criminal justice system.

The Committee then went one step further. It also asked the NZ Government to provide comprehensive data in its next periodic report on progress made to address this phenomenon. In doing so, it referred to earlier recommendations in 2005 and 2007 which had gone unheeded. The 2007 recommendation, which the Robson Hanan Trust had referred to in its submission, called for research on the extent to which the over-representation of Māori could be due to racial bias in arrests, prosecutions and sentences.”

The government has until now, put great stock in its ‘Drivers of Crime’ strategy, and referred to it repeatedly in its responses to the United Nations.  I understand that the drivers of crime  may have been recently involved in a fatal crash (but more about that later). 

Our Recommendation

It is not in the nation’s interests to avoid this issue.  There needs to be an open acknowledgement of its existence, and a publicly accountable strategy which addresses it.  It requires wide democratic participation, including involvement from such key stakeholders as the Iwi Leader’s Forum, the Māori Council, the Human Rights Commission, and the Human Rights Commissioner. 

It will be a painful process.  It may tell us things we don’t wish to here, but as the saying goes, “You Have to Face it to Fix It”.  It would be ‘Smart on Crime’ to do so.