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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.   

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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.  

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