GUEST BLOG: Chester Borrows – Prison in the 21st Century

A bit of history

I remember going in to a kindergarten as a police-officer to read stories to the kids. The teacher pointed to three or four young boys and said, “These are the ones that will be your problem in years to come.” And she was right. This is a common story, and for many years we have only reacted to this knowledge with numb resignation. The nodding head and the clicking tongue of government agents who only took satisfaction in knowing they were right all along but huge frustration that they couldn’t effect change.  It has only been in recent years that we have bothered to examine data intricately enough to now be able to know the names and addresses, ages and occupations, lead care-givers, neighbours, schools and predilections of the kids and their families, who will end up in jail if we do nothing. Fifty years after we landed a man on the moon, ten years after we put space craft on Mars, we care enough to use knowledge – that we have always had – to get ahead of the game with vulnerable people.

With all that knowledge it is a shame that many still think prisons are the only answer.

It seems there has not been a time when the prison system as we know it in New Zealand has ever worked, (unless ones view of ‘working’ is as a holding pen only). Prisons didn’t exist pre-colonisation so the lack of a need for prisons could be something we aspire back to. Not such a radical thought, maybe, considering a the concentration in those days on what we call ‘restorative conferencing’ these days. Pre-prisons, getting on, past, or through tense situations was a priority for people who realised that neighbours and communities had to live alongside one another and continual feuding was not viable.  Offences and infractions were negotiated through and, resolutions were made, and recompense was provided.

Post the Treaty of Waitangi, laws were imported and so was the machinery of punishment. Many remote rural communities remained unpoliced except by traditional methods because they were too far from Armed Constabulary for any action to be taken. Where local police were posted they were often prosecutor, judge, and jury all rolled in to one and so with the law at the end of his tongue, the local cop could do a lot, very little, or nothing at all. It is no wonder that Maori were vastly under-represented in crime statistics for decades, because crimes were handled in the same old way, there was little offending in any event especially amongst Maori due to concepts of communal ownership and responsibility. What did occur was frequently unreported to authorities and when it was it was frequently under investigated and offenders never located or brought before the court.

But with the advent of prisons, came a contracting out of the responsibility to work things through as neighbours and communities, but a preference for prosecution and litigation. It’s odd that with the liberalisation of society, has come an increasing reliance on prison as a punishment. Sentences are getting longer, bail and parole harder to get, and that suits many people just fine until it is their child, workmate, neighbour or relative who offends. Then they cry that the law is an ass, the system unwieldly, expensive, the sentences unfair, and prison is a joke. These are often people hitherto unaffected by the justice system and their loved ones are those most likely to spend a great deal of money on representation or defence. Imagine how the system feels to someone who cannot pay for the options of choosing their own counsel, the court they appear in, for reports which may dissuade a judge from certain sentence provisions and neither did their brothers, parents, or uncles. Prison becomes an expectation.

Present day

Some recent study by the Ministry of Justice shows us that of the cohort of all New Zealand Children born in 1978, a quarter have a conviction for a criminal offence. This includes a third of all males and half of all Maori and Pacifica males. And the stats for other years around the same time are the same and the stats in similar jurisdictions are the same, pretty much. What that tells us that criminal offending is not unusual, not necessary abhorrent and that ‘criminals’ are all around us. So, it is about sorting wheat and chaff. It means there are some we need to be aware of and protected from, but that does not apply to all offenders.

Funnily enough those who argue for more prisons and a higher prison population, more punitive laws and harsher treatment for offenders, also believe prisons are ineffective and policies are unsafe.

Some parts of the justice system work against others. Police, Corrections, Courts, Oranga Tamariki often have competing policies or delivery and that is not an effective way of operating.

As we are well in to the 21st century, we need to be thinking a few years further down the track before deciding what prison might mean in the mid-late 21st century.

Prison in the future

Prisons should be safe and effective; just like the rest of the justice system. There is little point in sending somebody to jail in desperate need of reform, rehabilitation, therapy and assistance, only to release them back on to the street with none of those interventions taking place. To phrase it another way, people must come out of prison in better shape than when they went in. If we have a prison population with high ratios of mental health diagnosis, illiteracy, substance dependence, and brain injury, and we hold them for a year or so and then release them with no intervention, that is not safe. Not safe for the offender, their victims or the public in which they live. If recidivism runs at about 60 per cent, that is not effective.

So, a safer more effective prison system would undoubtedly recognise the characteristics of offenders cumulatively and individually and seek to deal with those negative traits before the inmate is released back into society. One would think that access would be granted to therapies as and when required and that resources would meet demand. An offender should not have to wait for a certain arbitrary period to elapse before they are eligible for treatment, and because you can lead a horse to water but can’t make it drink, incentives would be provided to participate.

A 21st century prison would recognise that the prevalence of offending is not truly reflected in the prison population. People only go to prison who are convicted, and the guilty get off sometimes and occasionally the innocent slip through filters in the justice system. It would recognise that offending doesn’t occur in a vacuum and that triggers for offending, and studies show that serious offenders have many common factors. These factors can be articulated and understood, and so prison conditions and policies should not be predicated on rhetoric and political idealism.

For generations people have said the punishment should fit the crime, but what does that mean?  Murderers should be killed; rapists should sexually assaulted; thieves should have their pockets picked; arsonists should be set on fire? Surely a modern prison should provide treatment that understand the triggers for offending and recognise the damage done by that offending. The inmate should be confronted with their offending, preferably by their victim or if that is undesirable, by a person standing in place of the victim. Restorative Conferencing allows a victim to articulate the impact of offending to the perpetrator of the crime against them. It gives an opportunity for the offender to fully understand the ramifications of their offending and explain, as well as they can, what circumstances lay behind their crimes. Studies show that restorative conferencing leads to big reductions in recidivism and an enhanced feeling of justice and fairness on behalf of victims.

I think the most urgent need is for a 21st century prison system is to be based around policies we know from research works. The biggest barrier to this is the appetite media and commentators have for putting up emotionally charged victims responses against dispassionate research.

We can all sympathise with victims because we have been victimised ourselves or we recognise that “..there, but for the grace of God, go [us all]…”.  But emotions, regardless of how justifiable and understandable, do not make good legislation or good policy.

The ignorant like to describe prisons as holiday camps. Being locked up in a cell, probably with somebody to you don’t know, or hate, or are desperately afraid or of at least have zero feeling for, in a small space no bigger than most domestic bathrooms, is no holiday. The table you eat at or write at folds down over an open toilet where you cellmate had a crap 10 minutes ago. The hours spent in this cell may range from ten to twenty-three hours per day. Movement is severely limited as is the use of communications and reading and writing materials. Therapy and treatment are sporadic, and leisure-time is virtually nil. These critics must have some interesting holiday experiences.

Future prison populations will be radically reduced from where they are today, because social policy will deal with the obvious health, education, work and welfare disparities which are indicative if not determinative of future offending and incarceration. Sentences will probably be shorter because they will be resourced well enough to provide effective interventions that will dissuade and rehabilitate offenders sufficiently to live crime free post-release. Many sentences will be completed outside of prison in communities. Prisons will be much smaller and involve the public much more than presently, who will take some responsibility for effective reintegration on release. Prisoners will from from custody to freedom by staged transitional accommodation, employment, supervision and mentoring.

Prisons in the future must be much better than they are today. They must be safer and effective, much enhanced-on today’s results of incarceration, or we will have no right to claim we live in a civilised society.

Chester Borrows is a former National Party MP, he has been appointed as chair of Justice Minister’s new criminal justice advisory panel.