Tuesday 1 July 2014

Seven Sharp and Penal Policy – Let’s Do the Time Warp Again

By Kim Workman

This last week has been taken up with the launch of Justspeak’s report “Unlocking Prisons”  which provides an evidence based examination of the prison system and makes recommendations for its reform.  The 158 page report is divided into three parts.  The first part looks at why we send offenders to prison and whether sending offenders to prison achieves  these legislative purposes.  Part Two sets out the evolution of prisons from the late 1700s, and argues against the transfer of the state’s monopoly on the use of force over citizens to the private sector.  It goes on to analyse the make-up of the prison population and offers insights into the life of a prisoner.  Part Three looks at the future direction of prisons in New Zealand and successful initiatives that are currently in operation.  It calls for better data on which programmes are working and the wider application of those programmes. 

The report was well reported by the media, with a number of the key issues covered by journalists.   Waatea News discussed the increased difficulty for the prisoners of whanāu , given the impact of increased frequency of lock downs and increased security measures.  TV One  interviewed Dr Paul Woods former life prisoner who  about the benefits of home detention over imprisonment, and the constraints imposed on prisoners making choices and decisions while in prison;  a dilemma in that it is only through exercising options and choices that prisoners learn to be accountable  and responsible.   Manu Korihi News   spoke with  Peter Williams QC  about the over-representation of Māori within the system.  Te Ati Awa leader Neville Baker  joined in the discussion,   recommending that money could be invested by allowing prisoners to take up education rather than going to prison.  He proposed that trade training could arm prisoners with new skills and help them to stay away from the justice system.  Radio New Zealand  News  interviewed Lydia Nobbs of Justspeak and Garth McVicar.  Garth  took the view that drug and alcohol treatment should happen earlier, and before offenders were sent to prison.  Rethinking agreed with Garth , and expanded on   that point in  a subsequent media release.  

It didn’t stop there.  On the same day the report was launched, the Minister of Corrections issued her own media statement, promoting the effectiveness of in-prison rehabilitation.    At the launch, Professor Warren Brookbanks,   announced to those at the book launch, "I intend to use this report as a text for my University course.  It is outstanding."

The launch itself was a great night, with about 230 (mostly) young people in attendance, and invited guests including MP’s and aspiring MP’s, criminal justice professionals , lawyers and Auckland dignitaries. 
I reported on the  event in Rethinking’s latest newsletterand  commented on the current climate for debating law and order issues; 

It's a different debate than that of a decade ago, when the discussion was dominated by the 'tough on crime' polemic that labelled disputants as “soft lefties”, ''liberal loonies',  and the such. …….It is not only prisons that have been unlocked, but ideas;   and those ideas are generating a new wave of discussion………What has happened? It is clear that when the public mood  shifted away from the 'tough on crime' rhetoric, something else had to replace it. More and more, the debate has centred around a different question “Is what we are doing working?” This is not just a discussion for elitist academics or criminal justice professionals – the wider community has a stake in the outcome – and more people are having their say.  As that discussion occurs, the gap between competing opinions has closed – we discover things we can agree on, rather than focus on the things that set us apart.

The media reflected that perspective.  They spoke to a number of different  people, all with a different perspective,  and left listeners with something to think about.  That was a rarity ten years ago.  The public debate is maturing, and growing in depth and insight.
Enter Seven Sharp – “Let’s Do the  Time Warp Again’

However, my optimism took a battering when I watched  Seven Sharp’sMike Hosking and side-kick Heather du Plessis-Allan interview Lydia Nobbs, Justspeak’sCoordinator, (at 6 min 12 secs) 

As I listened to Mike Hosking expound his views, the words from  a Rocky Horror Show song came flooding back.
In another dimension
With voyeuristic intention.
Well secluded I see all...
(Chorus) Let's do the Time Warp again.
Let's do the Time Warp again.
‘The Time Warp’ Words by Richard O'Brien

More Imprisonment - Less Crime

Mike Hosking came to the interview with two key ideas.  First, he proposed that ‘some people’  argue the high imprisonment rate is the reason why the crime rate is low.  When people offend, why don’t we put people in prison for ten years, and if they re-offend, put them back for another ten.  By the end of the interview the view had moved from being that of ‘some people’ to a personal one.  “ Really” he said, “This report couldn’t have come at a worse time – when crime rates are coming down, and with high imprisonment rates.  You’ve got to add two and two together.

The Public Desire to Put People in Prison

His second idea was that the public have a ‘general desire’ to want to put people in prison, have tougher sentences, and have Judges ‘beat them up’. 

This was the sort of interview that dominated the airwaves 10 years ago –Mike Hosking was clearly functioning within a time warp.  How disappointing that an opportunity to explore new ideas was hijacked, by an interviewer who sounded as though he had come fresh from talkback.  I am sure that some listeners would believe that his views are empirically sound, and supported by research.  As a result,  viewers were left  with two 
ideas which are demonstrably wrong. 

 Not only are they wrong, but most of the world have accepted they are wrong, including the conservative right.  In the USA, the conservative justice reform  think tank Right on Crime  has come out swinging  on both issues.  Let’s take a closer look. 

The Correlation between the Crime Rate and the Imprisonment Rate

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's a measure of the consumption of punishment.

According to a recent UK National Audit OfficeReport;(1) report countries fall into four categories:

·         Countries where crime has gone down, as the prison population has increased: namely, England and Wales, Scotland, Northern Ireland, United States, Australia, Canada and France;

·         Countries where crime has increased, as the prison population has increased: the Republic of Ireland and New Zealand;

·         States where crime has gone down as the incarceration rate has gone down: the Netherlands and California; and

·         Finland, where crime is up but the incarceration rate is down.

Perhaps the clearest examples are nations that share a similar crime rate but have significant differences in imprisonment levels. In North America, both the USA and Canada have had a falling crime rate for the last twenty years.  The USA has an imprisonment rate of 715 per 100,000, and Canada is currently at 111 per 100,000, just under a sixth of the US rate. (2)   

The Right on Crime movement in an article   ‘Prison Reform a Smart Way for States to save Money and Lives’, gives  lie to the idea that an increase in imprisonment results in a reduced crime rate.  

“Some people attribute the nation's recent drop in crime to more people being locked up. But the facts show otherwise. While crime fell in nearly every state over the past seven years,  some of those with the largest reductions in crime have also lowered their prison population. Compare Florida and New York. Over the past seven years, Florida's incarceration rate has increased 16 percent, while New York's decreased 16 percent. Yet the crime rate in New York has fallen twice as much as Florida's. Put another way, although New York spent less on its prisons, it delivered better public safety.”  

Closer to home, the NSW imprisonment rate is virtually double that of Victoria (204/100,000 of population, compared with 104/100,000 of population) The NSW Bureau of CrimeStatistics and Research.(3) attributes the higher NSW imprisonment rate to four factors:
  •  A higher court appearance rate (3196.8/100,000 pop. compared with 2,542.1 per   100,000 pop. in Victoria
  •   A higher likelihood of conviction (85.7%, compared with 79% in Victoria),
  •   Greater use of imprisonment (7.5% of convicted offenders sent to prison, compared with 5.4% in Victoria) and;
  •  A much higher rate of remand (47.3 per 100,000 pop on remand, compared with 19.3 per 100,000 pop. in Victoria).
What about New Zealand ?  The graph below helps to explain:

The crime rate remained relatively static until 1950, when the crime rate began to rise, as did the imprisonment rate.  That continued for 40 years until 1990, when New Zealand and similar  western nations experienced a steady decline in the crime rate .  In New Zealand however, the imprisonment rate continued to rise.  The 2012 UK National Audit Office 
 in its comparative study of nations, concluded that with the exception of the US, New Zealand  compared unfavourably with similar nations, for the following reasons;

·         We imprison offenders at a rate 25% higher than England and Wales, and 33% higher than Australia.
·         In NZ, between 2005 and 2009, and in the face of a stable crime rate, the rate of imprisonment rose by 15%, while the % rate of people sent to prison increased by 25%,
·         Offenders were sent to prison for very short sentences. Currently, 70% of all offenders in prison will be out in six months.
·         We remand offenders in custody at a rate of 43 per 100,000, compared to 30 per 100,000 in Australia, and 25 per 100,000 in the UK.
·         Māori are 6 times more likely to be imprisoned than non-Māori, and 11 times more likely to be remanded in custody.
·         We imprison people of ethnicity more disproportionately than almost anywhere in the world.

Interestingly, there is a correlation between a rising crime rate and policing levels.  Since the 1950’s, the per capita number of sworn Police has more than doubled.    More Police, more reported crime.  But the media don’t seem too keen to talk about that.  Incidentally, the sudden rise in Police numbers in 1992, was the result of merging the Department of Transport traffic officers into the Police.

Want the latest word?  Here’s the Conservatives again.  On June 20, In their co-authored article for Washington Post, Right on Crime signatories Ken Cuccinelli and Deborah Daniels discussed how less incarceration could lead to less crime, and an increase in public safety.

“As conservatives with backgrounds in law enforcement, we embraced the orthodoxy that more incarceration invariably meant less crime, no matter the offense or the danger posed by its perpetrator. But crime rates have been falling since the early 1990s, and a growing body of research combined with the compelling results of reforms in many states prove it is time to adjust our approach.”

Hardly consistent with a ‘tough on crime’ approach; but certainly qualifies as being ‘Smart on Crime’ 

The Public Desire to Lock People Up

Mike Hosking’s  second idea was that there was a widespread public appetite for imprisonment and harsh punishment.  That view is not supported by the evidence (although there is not much of it).  A 2013  ColmarBrunton Survey, commissioned by the Ministry of Justice into Public Perceptions of Crime , showed that only 5% of respondents agreed that prisons deterred people from committing crime, with the same number advocating for harsher treatment, mostly in the form of longer sentences. Only 6% considered that increasing rehabilitation in prisons would increase their confidence in the justice system, while twice that number (11%) favoured community based rehabilitation. The public taste for punishment is waning.

In the US, the story is much the same.  ThePew Centre  has conducted a number of public safety surveys over recent years, and noted a significant shift in public response. 

In summary:
  •             Voters are concerned first and foremost with keeping communities and people safe.
  •          Voters want a strong public safety system where criminals are held accountable and there are consequences for illegal activities.
  •          Voters believe a strong public safety system is possible while reducing the size and cost of the prison system.
What was happening a decade ago? 

If Mike Hosking had made his observations a decade ago, he would have been in touch with public opinion. There was an almost insatiable appetite for punishment – and the media played a major role in promoting that view.  As Anthony Giddens reminds us, it is a characteristic of late modern society that most people get most of their information about law and order issues from the mass media, and particularly from talkback and television.(6)   

The influence of the media in shaping public opinion was affected by  the changes to the structure of the media that have taken place since the late 1980s. First, there was the arrival of private and satellite television, made possible by the deregulation of state broadcasting. Second, the development of new media technologies has meant that news reporting has become more simplified, more competitive and more readily available. We now have twenty-four hours-a-day news services that require a constant supply of material.(7)  This means that while viewers have become more aware of crime and punishment issues,  their   framework of understanding has been shaped by the media.  When Seven Sharp makes ‘authoritative’ statements about prisons, punishment and public opinion – the public takes them at face value. 

The formation of the Sensible Sentencing Trust in 2000, and its eagerness  to court the mass media to gain support for its policies, gave the Trust a significant voice in penal policymaking.  It also become an attractive source for the media; no in-depth   research was needed to generate ‘screaming headlines’ which sold media products.  Because of the Trust’s pro-active relationship with the media, it quickly became  a common source of ‘expert’ opinion, despite its own denunciation of expert knowledge. In effect, the Trust and its spokespeople became new kinds of experts, whose knowledge was based not on book learning and research, but on anecdote, common sense, slogans and  catchy ‘headliners’: a form of expertise that suited the news making  requirements of the contemporary media.(8) In contrast, criminal justice professionals and elites who are highly knowledgeable in this area were overlooked as they did not offer the populist attitudes the media sought for a personal and ‘newsworthy’ story.
How much influence did Sensible Sentencing exercise in 2004?   A  Victoria University survey of criminal justice groups mentioned by the Dominion Post and the NZ Herald in 2004 found that the highest number of mentions went to the Sensible Sentencing Trust at 57, with Victim  Support trailing well behind at 33; even though  Victim Support had a great deal of expertise and knowledge around support for victims, and dealt with 60,000 victims a year, compared to the Sensible Sentencing Trust’s 100 or so murder victims.  Prisoners Aid and Rehabilitation were mentioned 14 times, Howard League 10, and Rape Crisis five times.  (8)

How influential was this populist rhetoric  on political thinking?  In the same year , in a law and order speech given by then leader of the National Party, Don Brash,  to an audience of Sensible Sentencing Trust members he said  ‘I don’t intend to recite a lot of statistics to make my case. We all know that New Zealand has a terrible record’ (9) He then went on to outline a series of ‘horrendous’ crimes that New Zealanders had been  'exposed to every day’ in the media.  When a top economist suggests that crime levels should be judged not on quantifiable data, which at that point indicated that crime had been in decline since  the late 1990s,  but on his own knowledge gained from the media, it gives an indication of the power exercised by the media when it talks about crime and punishment.(10)

2006:  The Turning Point

By 2006,  the high prison numbers achieved by the ‘tough on crime’ rhetoric was   celebrated by the Labour Government in parliamentary debates as proof that it had satisfied public expectations to ‘get tough’ on violent offenders.  However, as the prisons became overcrowded and their management untenable, public opinion started to shift.  

One particular critic, Judge McElrea ,  had the following to say about the administration of penal policy in New Zealand:

For too long justice has suffered from a sort of auction to find the “toughest” approach to criminals. It has failed to make New Zealand safer: to the contrary it has produced more prisons from which more and more inmates emerge as dangers to the community. Responsible segments of the community must let politicians and the media know that they do not find this conduct acceptable.(11)

Similarly, an authoritative report published by the Salvation Army  in the same year spoke of the tendency of New Zealand politicians to use ‘crime as a political football’:

Good prison policy requires rationality, not rhetoric … Certainly democracy requires debate about justice issues, but this debate needs to be based on evidence and research, not one off criminal cases or distortions of the facts … we need politicians who will show leadership and resist the temptation to buy into popular, but failed, views.(12)

This coincided with increasingly vocal opposition to the growth of imprisonment from penal reform groups, particularly Prison Fellowship New Zealand (PFNZ, which  become an increasingly important player in policy debate. Annually from 2006 to 2008, PFNZ organised a ‘Beyond Retribution’ conference where academics, politicians, volunteers and all those interested in penal policy in New Zealand openly debated penal policy. This gathering of ideas provided   an umbrella under which diverse critics of populism gathered and highlighted the dramatic change in direction penal policy had taken in New Zealand. Collaboration was taking place, as critics of penal populism hoped to change the direction of penal reform.  These groups encouraged politicians to resist penal populism through the use of informed debate. The ‘tough on crime’ environment that had become so engrained in popular rhetoric was being resisted and a new and informed body of knowledge was beginning to emerge.(13)

Howeever, and because of the capability of the media to galvanize public opinion, the government remained very much a hostage to its fortune as it tried to change course and move away from populist influences.  As Ombudsman Mel Smith observed in 2007, the political  climate in New Zealand was making change increasingly difficult:

“Criminal justice has unfortunately reached the stage where rational debate is difficult. When an incident occurs the responses from the public, politicians and the media tend to polarize. The almost inevitable response of “let’s pass or amend the law” is often a fruitless reaction that is piecemeal and probably not effective … The maxim “hard cases make bad law” is particularly appropriate.”(14)

While the Labour government  attempted to reconstruct penal policy through its Effective Interventions strategy , which would have seen a reduction in crime, reoffending, and imprisonment, it was too weak to stay committed to the interventions and resist public pressures for change. It yielded to populist demands, changing laws based on the strength of extraordinary cases to prove it was once again in line with public sentiment and mood.(15)

Fast-tracking to 2014

Over the last decade there has been a steady shift toward a more rational approach.  What has caused the shift?  The government can take some credit .  When, in 2009, the Deputy Prime Minister, the Hon Bill English referred to imprisonment as both a “fiscal and moral failure” he gave politicians, public servants and the public permission to talk about the effectiveness of prison as punishment.

Could you imagine a Minister in 2004, in  foreword  to a report make the following comment:  : 
“This report rejects the political clamour to be the toughest on crime, instead it embraces a resolve to be smart on crime.”

Hon Chester Borrows, Associate Minister of Justice, Youth Crime Action Plan 2013. 

Second, the government’s Better Public Service Reducing Crime and Reoffending Plan  has activated alternative strategies to imprisonment; the establishment of a prisoner reintegration framework, strategies for dealing with low level offenders, an expansion of restorative practise, establishment of Rangatahi courts for young Māori offenders, and drug and alcohol courts for those with dependency issues are just a few examples that have contributed to the shift in public thinking. 

Continuing discussion has increased general awareness of the futility of prisons –and  that there is no evidence that they act as a general deterrence, or reduce reoffending. They are one of the causes of crime.

What is the situation today?  The Sensible Sentencing Trust still outdoes any other contender in the publicity stakes; but there is now a greater number of groups and individuals entering into a more balanced and wider ranging discussion.  Media and blogs are no longer interested in the “tough on crime” diatribe.  They want to discuss the issues in depth.  The quality law and order conversations on blogs, Facebook, social media and Television weren’t happening 10 years ago.  Programmes like Native Affairs, Court Report, Q and A, and Thinktank, have taken the debate to a whole new level.  Rethinking has a speakers bureau of 35 experts and professionals , who engage with the public and service organisation on issues such as  prison, child conduct disorder, drug and alcohol use, Māori over-representation, community based sentencing, youth offending, restorative justice and so on. 

John Pratt sums up the situation well: 

…… the punitive path that has been taken since the late 1990s is no longer a simple one-way street. Blocks, impediments and challenges have been introduced in recent years. Some sections of the New Zealand media have reported responsibly on what they have seen developing in the penal system. The New Zealand Herald, for example, ran a series, beginning 25 February 2006, under the heading ‘Our Idle Jails’. There were articles on poor prison conditions, lack of work and education for prisoners and a concluding editorial headed ‘Rethink on Failed Jail Policy Vital’. Work reflecting high levels of investigative journalism in this area is still produced, for example, Kirsty Johnston’s ‘Does Sentencing Trust Cross a Line?’, in the Sunday Star Times. Radio New Zealand can still provide in-depth analysis and informative issues on some of its programmes. New initiatives have emerged that provide informed perspectives on the punitive, populist influences on policy in this area – Rethinking Crime and Punishment and JustSpeak, for example. (16)

How has this shift played out for those promoting a more reasoned approach?  Well, judging by the media feedback to the ‘Unlocking Prisons’ report, a change has occurred.  The Gisborne Herald led with an editorial ‘Unlocking Prisons a must-read for everyone involved in the justice system summarising some key points, and commending the report to readers.  A far cry from Heather du Heather du Plessis-Allan’s patronising throwaway, that the report contained ‘nothing new’, or Mike Hoskings comment that “Altruism is all very well, but……”   

The only response to the editorial, was a letter starting with the paragraph; 

“Garth McVicar and his band of overzealous bigots are by far and away one of the major problems New Zealand has as far as our prison population is concerned."   

Not an editorial or a response that was common in 2004,  

Rethinking Crime and Punishment position is 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 highlight the flaws in quick and dirty research, identifies populist measures that have no evidential basis, and identify approaches that will get better results. 

Informed public opinion encourages truth telling and honesty.  That can work to the disadvantage of anyone who makes claims unsupported by evidence. Seven Sharp, it’s time to move out of the 2004 time warp, and show the viewing public more respect.  

In the words of Abraham Lincoln: 


(1)   UK National Audit Office ‘Comparing Internal Criminal Justice Systems’, Briefing for the House of Commons Justice Committee, February 2012
(2)  Zimring, Franklin E.  ‘The Great American Crime Decline’ Oxford University Press (2006)
(3)  Why does NSW have a higher imprisonment rate than Victoria? Crime and Justice Bulletin, Bureau of Crime Statistics and Research. Contemporary Issues in Crime and Justice Number 145 , December 2010
(4)  ‘Public perceptions of Crime’   A Survey Report, prepared by Colmar Brunton for the Ministry of Justice , October 2013
(5)  Bartlett, Tess, The Power of Penal Populism: Public Influences on Penal and Sentencing Policy from 1999 to 2008 pp 49-50.    A thesis submitted to the Victoria University of Wellington in Fulfilment of the Requirements for the Degree of Master of Arts in Criminology (2009)
(6)  Giddens, Anthony, ‘The Consequences of Modernity’, Stanford CA, Stanford University Press (1990)
(7)  Pratt, John, A Punitive Society: Falling Crime and Rising Imprisonment in New Zealand, Bridget William Books (2013) http://www.bwb.co.nz/books/punitive-society
(8)  Bartlett, Tess, p.49
(9)  Brash, D. (2004). Law and order a national priority, An address to the Sensible Sentencing Trust. Ellerslie
(10)                Bartlett, T.  p.53
(11)McElrea, F. (2006). Restorative justice: The long view. In K. Workman (Ed.), Conference proceedings of 'beyond retribution: Advancing the law and order debate' (pp. 171178).Wellington: Prison Fellowship New Zealand. pp 175=176
(12)                Salvation Army (2006). Beyond the holding tank: Pathways to rehabilitative and restorative prison policy. Wellington, N.Z.: Author. Retrieved 25 Mar, 2009, p.72 http://www.salvationarmy.org.nz/uploads/BeyondTheHoldingTank.pdf
(13)                Pratt, p.72
(14)                Smith, M. (2007). Report of Mel Smith, Ombudsman, following a reference by the Prime Minister under section 13(5) of the Ombudsmen Act 1975, for an investigation into issues involving the criminal justice sector. Wellington, N.Z.: Office of the Ombudsmen. Retrieved 25 Mar, 2009, from http://www.ombudsmen.parliament.nz/cms/imagelibrary/100258.pdf
(15)                Bartlett, p.94
(16)                Pratt, p. 54

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