Friday 20 June 2014

Ignoring Structural Discrimination in the Criminal Justice System - At What Cost?

When Rethinking Crime and Punishment  developed its Smart on Crime strategy, we agreed that it would not be sufficient to be a safe society, if in achieving it our society became manifestly unjust.    Whether or not we are a civilised nation must be measured not by the absence of disorder, but by the presence of justice.  For that reason, any policy or strategy we promoted had to be consistent with the basic human rights guaranteed under the NZ Bill of Rights and international covenants. 

One key issue was the extent to which structural discrimination existed within our criminal justice system.  But how do you measure that?  One key measure is to compare our human rights reputation in the area of criminal justice, with that of other nations.  The most obvious point of reference then, is the United Nations Universal Periodic Review (UPR) of the NZ government's human rights performance which is conducted every four and a half years. 

Yesterday, the outcome of the second Universal Periodic Review (UPR) of the government's human rights performance was adopted by the UN Human Rights Council in Geneva. To watch the video click here

The Role of the UN Universal Periodic Review

The UPR is a mechanism established in 2006 whereby the UN 
Human Rights Council reviews whether or not UN member states are fulfilling their human rights obligations and commitments. Each state is reviewed once every four and a half years.  It is a complex process and for those that are interested click here for a full explanation.  

The New Zealand government's first UPR took place in May 2009, with the adoption of the Outcome Report by the Working Group on 11 May and by the Human Rights Council on 24 September 2009. 

New Zealand's second UPR took place during January and February of this year, and focussed on the recommendations in the 2009 Outcome Report and on developments in the human rights situation in Aotearoa New Zealand.  

On 1 June 2014, the government announced that it had  formally responded to the United Nations Human Rights Council second Universal Periodic Review (UPR) of New Zealand, accepting the “vast majority” of the 135 recommendations.   

It sounded highly positive when Justice  Minister  Judith Collins announced that:
“The Government accepts the vast majority of the recommendations, many of which   encourage our nation to continue our current programmes that make New Zealand a leader in the field of human rights"
For those members of the public concerned with a specific issue, it is very difficult  to track how well New Zealand is performing.  Rethinking decided to make it easier by  tracking the government’s response to the United Nations continuing concerns regarding Maori over-representation, and in particular,  structural discrimination with the criminal justice system.  

The first Universal Periodic Review (UPR)

For the first UPR, the government's human rights performance was reviewed in relation to the UN Charter, the Universal Declaration of Human Rights), and the seven core international human rights instruments it is a party to, including the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) 

In 2007, one of CERD’s key themes was to seek a response from New Zealand on the issue of racial discrimination within the criminal justice system

Progress made to combat persisting inequalities and reduce the overrepresentation of Māori and Pasifika in the prison population and at every level of the criminal justice system (CERD/C/NZL/18-20, paras. 90 and 97” (CERD/C/NZL/18-20)   

In the interim, excellent reports by both the Department of Corrections (2007) 
 and the Ministry of Justice(2009)   confirmed the existence of racial bias in the system.  There was however, no subsequent research carried out to establish the extent of bias, and how it might be addressed. CERD reported back to the New Zealand government in December 2012,and commented:

“The Committee reiterates its concern regarding the over-representation of Māori and Pacific people in the prison population and more generally at every stage of the criminal justice system. It welcomes, however, steps adopted by the State party to address this issue, including research on the extent to which the over representation of Māori could be due to racial bias in arrests, prosecutions and sentences (arts. 2 and 5).

When New Zealand reported on progress in 2013, it failed to either acknowledge or respond to  CERD’s concern about racial bias and structural discrimination.  Instead it highlighted a range of programmes and achievements which demonstrate a high level of cultural responsiveness to Māori. (Paragraphs 91 – 101, and 108 – 112))  - all of which are commendable. 

It further claimed that the  government’s “Drivers of Crime Strategy” (paras 101 to 104), had played a major part in permitting  Māori to design, develop and deliver innovative initiatives and solutions that are responsive to the needs of Māori. 

What is the significance of the Driver’s of Crime Strategy in Addressing Māori Over-representation?
Rethinking has already voiced its concerns about the government’s Drivers of Crime Strategy, which seemed to have well and truly lost its way.  In 2013 we published an article  ‘The Drivers of Crime Strategy - RIP 2011’ pointing out that the last progress report had been published in July 2011. 

The second progress report  went to Cabinet in December 2012, and was referred to by the Minister when she appeared before the CERD Committee in Geneva, in January 2013.  It is most unusual to refer to a report which had not yet been released publicly in the member country.  It was finally released in September.  It was an unusual report and showed signs of playing ‘catch up’.  There was a strong focus on Māori which didn’t connect with earlier stated goals, and a fifth priority area added, which spoke of “tailored local innovation with a strong focus on hard to reach Māori communities and youth  In our view, the report lacked direction, purpose and clarity, and was less than convincing.  

An independent assessment of the report was subsequently published by Will Workman of Workman Enterprises Ltd, publishers of  ‘Māori Policy Commentary’.     (Yes we are related  - Will's great grandfather and my grandfather were brothers).  His assessment is not very flattering

The third ‘Drivers of Crime’ progress report was delivered by the responsible departments in February of this year to the Minister of Justice’s office, where it has stayed. 

Robson Hanan’s Shadow Report  to CERD

In its Shadow Report to CERD,   the Robson Hanan Trust submitted that  government agencies had researched the adverse early-life social and environmental factors which result in Māori over-representation, and developed culturally appropriate programmes and services for Māori. What they had avoided doing, was to address the long standing concerns about the existence of  personal racism and structural discrimination within the criminal justice system. 

The UPR Process – Round Two

As part of the Universal Periodic Review into Human Rights, member countries have the opportunity to make recommendations, which the subject country can either accept or decline.  The following recommendations relating to structural discrimination within the criminal justice system were made by member countries:

81. Step up efforts, in consultation with Māori and Pasifika communities, to address and prevent discrimination against members of the Māori and Pasifika communities in the criminal justice system and, in particular, the high rate of incarceration (Ireland);
82.  Continue its search for creative and integrated solutions to the root causes that lead to disproportionate incarceration rates of the Māori population (Cabo Verde);
83.  Set targets for increasing Māori participation in policing, the judiciary and the penal system (Canada);
84.  Continue its efforts to address the situation, of half the prison population in the country being Māori, through, among other things, its “Drivers of Crime “ initiative and Youth Crime Action Plan recently launched (Thailand);
133. Establish appropriate national strategies with the aim to identify and address structural discrimination in the justice system (Iran (Islamic Republic of))
The Response to the UPR Periodic Review

New Zealand responded on 1 June 2014.  Once again however, as it has done since at least 2007, it avoided the issue of structural discrimination in the criminal justice system.  It responded in this way:   
Recommendations 81, 82, 83, 84, 133:New Zealand will continue a focus on Māori and Pasifika groups in the context of work to reduce crime, including their over-representation in the justice system. New Zealand is committed to increasing Māori participation in the police force.  New Zealand will continue a focus on Māori and Pasifika groups in the context of work to reduce crime, including their over-representation in the justice system. New Zealand is committed to increasing Māori participation in the police force.

But wait there’s More.  The United Nations Working Group on Arbitrary Detention
While the UPR process was in train, the United Nations Working Group on Arbitrary Detention conducted a country visit to New Zealand from 24 March to 7 April 2014, following an invitation from the Government. The delegation was composed of the Chair-Rapporteur of the Working Group, Mr. Mads Andenas, and a member of the Working Group, Mr. Roberto Garretón. They were accompanied by two members of the Working Group’s Secretariat at the Office of the United Nations High Commissioner for Human Rights.
A full report on the visit is expected in October 2014, but a statement issued at   the end of the visit gives an indication of what we can expect. 

As well as covering issues around over-incarceration and detention of asylum seekers and refugees, persons with mental or intellectual disabilities, children and young persons, the Working Group had a particular focus on institutional racism in the criminal justice system and recommended:

"that a review be undertaken of the degree of inconsistencies and systemic bias against Māori at all the different levels of the criminal justice system, including the possible impact of recent legislative reforms. Incarceration that is the outcome of such bias constitutes arbitrary detention in violation of international law."

The Chair Mr Mads Andenas was interviewed on Checkpoint  about the inconsistencies in the criminal justice system. 

A Recent Example

The Robson Hanan Trust has very little research capacity but one doesn’t have to look far for evidence of structural discrimination.  In the course of preparing a submission on the Bail Amendment Bill 2012 we examined whether Māori offenders were treated differently from non-Māori . 

When we examined Serious Class A Drug Offences (Class A) and Serious Violent and Sexual Offences (SVSO) we expected that the gap between bail decisions for Māori and non-Māori would narrow.  This did occur for Serious Class A Drug Offences, where Māori were only 1.31 times more  likely than Europeans to be remanded in custody at some time.(1) However, Māori who appeared before the Court on serious violence and sexual offences were almost twice more likely to be remanded in custody than Europeans.  Australia, unlike New Zealand, is doing solid research in this area, where the rate of bail refusal is nearly three times higher than the proportion of non-Indigenous people.  Australian research shows that Aboriginal defendants are likely to have more restrictive (and often unrealistic) bail conditions imposed, leading to higher rates of bail breaches in comparison to ethnic-­majority defendants.(2) We suspect a similar situation exists in New Zealand – but there has been no research in this area since the 1950’s.

It’s Not Smart on Crime to Ignore Structural Discrimination

For Māori males born in 1975, it is estimated that 22 percent had a Corrections managed sentence before their 20th birthday, and 44 percent had a Corrections managed sentence by the age of 35. Māori are being imprisoned at a rate six times that of non-Māori; and that punishment quickly extends to their whānau and communities.  Imagine the impact we could make on the crime rate, if systemic bias was analysed and addressed over the next decade. 

Rethinking’s main response has been to share resources as widely as we can, mostly through preparing discussion papers on the issue of structural discrimination.  You can download some of these at the end of this blog. 

What More Can Be Done?
Rethinking Crime and Punishment’s position is clear.  While Māori are over-represented in the criminal justice system to the extent that they are, New Zealand cannot claim to be a world leader in human rights.  That  title can only be earned through a determined effort to address the issue of Māori over-representation in the criminal justice system, including systemic bias against Māori.
It may be that over time, the nation’s sense of honour will awaken.  When five member countries all point to our inadequate response, it must count for something.  Unfavourable comparisons with other societies, shame and ridicule, and criticism from more civilized nations, are sharp moral motivators.  When a highly immoral or deplorable practice becomes sufficiently repugnant in the eyes of a sufficient number of people, there will be a mood swing against it.  
(1)   This figure is statistically significant (95% CI 1.106 – 1.555)
(2)  Blagg, H, Morgan, N, Cunneen, C and Ferrante, A (2005) Systematic racism as a factor in the over-­representation of Aboriginal people in the Victorian criminal justice system. Melbourne: Equal Opportunity Commission and Aboriginal Justice Forum.

Key Resources
1.  The Human Rights Commission Discussion Paper on Structural Discrimination  Structural (often referred to as systemic) discrimination occurs when an entire network of rules and practices disadvantages less empowered groups while serving at the same time to advantage the dominant group.
Structural Discrimination Have Anything to Do with It?  
This paper explores the existence of structural discrimination and personal racism within the criminal justice system, and proposes a way forward.

3.  You Have to Face it to Fix it - Fairness 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. Racial Impact Statements are one way of engaging in a pro-active assessment of how to address these issues in a constructive way.

The wellbeing of a nation is measured not by the absence of disorder, but by the presence of justice. “

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Overlooking structural discrimination within the criminal justice system is a perilous oversight, with consequences reverberating throughout society. The collateral damage of systemic bias affects marginalized communities disproportionately. Addressing this issue isn't just a moral imperative; it's a crucial step towards fostering a truly equitable and just legal landscape. Ignoring these structural flaws perpetuates inequality and erodes the foundation of a fair and impartial system. It's time to confront these challenges head-on, fostering reform that ensures justice is blind and accessible to all.

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