Dr Liz Gordon: Making progress on justice

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I want to begin by acknowledging the immense work that Andrew Little did as Minister of Justice over the past three years, considering and beginning the immense amount of work needed to reform the justice system. I expect, and hope, that new Minster Kris Faafoi will continue those reforms apace – no slowing down, no looking back.

With various elections around the world, and the surging Covid situation, I have not written about justice reforms for a while (gosh, it has been months!), so I decided it was time. As both members of my avid readers society will attest, supporting the overthrow of the current justice system, in favour some thing more positive, passionate and life-enhancing, is at the centre of my heart and mind.

The Waitangi Tribunal is currently considering whether to hear a claim (WAI 3008) against the 2013 Bail Amendment Act, which caused a very large increase in the number of people, mainly Māori, held in our prisons prior to being put on trial. This process is known as ‘remand’. How it goes is as follows: a person is arrested for a crime.  They spend a night or two in police cells, get some advice, appear in court and (usually) make a plea and are remanded ‘in custody’ or ‘on bail’ until their case can be heard.

Christie Marceau was murdered by her stalker ex-friend who had a very severe mental illness yet was allowed out on bail.  It was a serious and fatal error.  The resulting moral panic led to the 2013 Act, which massively expanded the number of people that would have to be held on remand.

The injustice here is that, with long delays in trials, people are held for months and years to such an extent that more than half of remand prisoners never spend a day as a sentenced prisoner, but are released on ‘time served’.

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Hundreds of remand people are also found not guilty yet have their lives ruined, jobs lost, families split up etc as a result of being held before trial in prison. Many people turn to gang membership while on remand.

Around 40% of those currently in prison are on remand.  The growth in pre-trial detention has particularly increased further the number of Māori in the prison system.  The burden falls disproportionately on Māori and also on women, whose numbers have been increasing while sentenced numbers go down.

The remand population is the primary driver of the increase in prison numbers over the past few years.  Without high remand figures, prison numbers would be reducing across the board.

It is a sign of tinpot dictatorships when the numbers of people held without trial increase substantially.  Remand is much worse than a sentenced term of imprisonment.  Remand prisoners can’t be put on work or therapeutic programmes for legal reasons. They are mainly just held, until the court system eventually comes around to giving them a trial.

So the claim WAI 3008 argues that the 2013 Act is unfair and unjust, the burden falls mainly on Māori, the justice effects are harsh and unforgiving, prison itself can be violent and is always alienating, and the cost to the public is high.

There are many so-called ‘kaupapa’ claims currently in front of the Waitangi Tribunal.  These are huge, multilateral claims based on broad policies areas, such as the kaupapa health inquiry (WAI 2575).  The list of the 13 kaupapa inquiries can be found on the internet.  Justice is number 12 on that list of 13 and has not yet commenced.

This means that it might be a decade before the Waitangi Tribunal begins to examine the claim that the Crown has breached the Treaty of Waitangi by making the burden of the justice system fall heavily and unjustly on Māori.  At the heart of this claim is the pattern of everyday unfairness, bias and discrimination that Māori face.

The claim that the 2013 Act has breached the Treaty in and of itself has the potential to allow the tribunal to examine some of the core issues facing Māori in the justice system without having to wait for the hearing of the larger claim, and to consider, urgently and within a contained framework, one of the largest injustices that still impact on Māori in the justice system.

The person leading the claim is a young criminology graduate at Victoria University, who was herself held for a over a year on remand in prison, Awatea Mita.  Many others are supporting the claim for a separate hearing, and under urgency. I hope the hearing goes ahead.  

In the meantime, there are many other reform issues in justice that the new minister can work on. There is the opportunity in this term of government to turn the juggernaut of a punitive and vindictive justice system around, and find new measures of justice for a happy and peaceful society.  I wish the new Minister good luck, and don’t forget to eat your greens and take your vitamins, as sustained energy will be needed.

 

Dr Liz Gordon is a researcher and a barrister, with interests in destroying neo-liberalism in all its forms and moving towards a socially just society.  She usually blogs on justice, social welfare and education topics.

15 COMMENTS

  1. Yes, but would be reducing much more if remand numbers had not surged. You have an interesting view of crime – perhaps that there is a finite group of people who are criminals and who should be locked up (OMG, could they be brown, by any chance?). This is not, of course, the case. People who commit crime are ‘made’, not ‘born’. Incidentally, there is an interesting article on Awatea Mita in Newsroom today.

  2. They need to get the balance right but currently don’t especially for Maori.

    This happened to a friend. They were not guilty of a serious crime but told unless they pleaded guilty they would be held in jail. They pleaded guilty just to escape remand. They were Maori.

    When they were sentenced, the probation presented a criminal record that was someone else’s with a substantial criminal record which was not the person’s but had the same first name and surname. This is much easier to do with Maori names. The wrong record was only picked up because a whole lot of people started taking interest in the case. If this had not happened then it is possible the person would have gone to prison for a non violent, pretty much trumped up crime, they pleaded guilty to, just to avoid remand.

    Apparently it’s a common occurrence that that criminal records are mixed up if you have the same name, and probation makes recommendations based on the wrong criminal record of the person. Unbelievable!

    When held on parole the person was told they had breached because the parole officers went to the wrong house and that was not true.

    When sentencing the person noticed that another person who was charged at the same time as them but with a different crime was still awaiting sentencing in Jail. That other person was a teenager and it seemed incredible they were held in jail for months when they had not been convicted and they were so young. Apparently he was very frightened to be held in jail.

    It made my friend relieved to have pleaded guilty, but his charges seemed trumped up and if the person had pleaded not guilty, I would have imagined a reasonable lawyer would have got the charges lessoned, possibly even dropped. My friend was not very educated and vulnerable to a system that likes to prosecute easier targets.

    My guess is people on remand are pleading guilty straight away to avoid remand, but later may have charges which are not true or should be lower on their criminal record.

    Seriously just a little taste of the injustice and incompetence of our justice system has left me knowing something is VERY wrong and unjust in our ‘justice’ system.

    The sad part is, that being in jail or getting a criminal conviction follows someone around for the rest of their lives and it seems like they are being handed out cart blanche in our justice system to people who don’t deserve them (and not enough sentencing to people that do deserve them) and for crimes blown out of proportion to not very worldly people being pushed into pleading guilty by police.

    Once charged, not much effort seems to be given in getting the information right about previous offending, the parole system is incompetent and youth including teenagers who have not been convicted are being held for months in jail.

    No wonder our prison rate is going up while our crime rate is static.

    I support reform, (within reason), and also that youth under 24 are charged in a youth court, given extensive therapy and never see a real prison until after that age.

    I also feel it is unfair that many migrants get their charges dropped without conviction because they use the excuse it might effect residency application, and if they are convicted they can get a 30% reduction in sentence due to ‘cultural issues’.

    We have thousands of Aussie/NZ criminals coming back – time to try and reduce migrant criminals hitting our shores and send them back sooner rather than later, because we already have quite a few from OZ hitting our shores that we can’t reject.

    With Pokies and Meth at record highs, time to get a bit more serious about looking after and rehabilitation to locals, not filling our justice system up with more and more inter country criminals that we can say no thanks, to early on.

    I also have no idea why Maori don’t get discounts for cultural reasons or why the book is often thrown at them in our justice system.

    • All these injustice stories are bad, but if an innocent person is advised to plead guilty by their lawyer, I would fault the lawyer; as an officer of the court their job is to uphold the law – not be party to what looks like a bit like perjury, and morally unfair.

      I have a common Anglo- Saxon surname, and have had the wrong patients’ notes produced in a public hospital twice, including a nurse asking me whether I was I sure that I was not somebody with a different middle name and a different address, and likely a different dob, in the eye dept of a teaching hospital. Incompetence – from the records dept providing the files.

      • Applewood: “….if an innocent person is advised to plead guilty by their lawyer, I would fault the lawyer; as an officer of the court their job is to uphold the law – not be party to what looks like a bit like perjury, and morally unfair.”

        For the reasons you adduce here, I’m very sceptical about the veracity of stories such as that given us by saveNZ. I’ve heard this sort of thing many times over the years: anecdote, not evidence.

        I’ve also known lawyers – in my extended family, even – and those individuals were models of rectitude. That accusation is a helluva trip to put on all lawyers, especially given that in my view, it’s likely that none behave like that.

        And those claiming that this sort of thing happens, need to produce evidence of it.

        • My account is true people, and yes the lawyer was part of the problem and those who use free legal aid, get whoever is on duty at that time. Most legal aid is fine, some are not.

          My friend was not ‘innocent’ but the charges given by police were on the extreme side. Like many honest people they freely admitted what happened but what my friend was charged with, was too extreme for what they did and the circumstances around it.

          Statistics for Maori do not agree with D’Esterre, Applewood views of NZ’s wonderful lawyers. Innocent but not very worldly people who also plead guilty to more crimes that they did, but are later found it was impossible to have done some of the crimes and are often Maori.

          • Police don’t lay charges unless there’s enough evidence to secure a conviction in a court of law. Some offences are not even recorded, for the same reason. This formed part of a complaint I made to the police, about the police.

            However, it also makes sense not to waste time and tax payers money,
            by charging people for offences which can’t be proven. Hence sometimes original charges may be modified, or dropped once legal proceedings are under way.

            If the NZ Police routinely charged innocent people for unprovable offences, they would be rightly criticised by the judiciary for doing so.

            I did not say that New Zealand lawyers are wonderful, you did. The duty solicitors may be a mixed bunch, but often they are young eager beavers keen to do a good job, and sometimes established senior criminal lawyers, giving back to the community.

            Where lawyers are found to be corrupt, eg laundering gang money, they are very hard on their own – they have their own professional standards to uphold just like the NZ Police do, but both are constantly victims of urban myth, perhaps perpetrated by persons with other agendas.

            If a defendant tells her lawyer that she is innocent, then the lawyer proceeds on that basis. If a lawyer advises an innocent person to plead guilty, then that lawyer should be reported to the Law Society.

  3. Faafoi has 2 really difficult portfolios justice and immigration why has Jacinda given him these for fuck sake he is far too soft. The justice one requires someone with thick skin it need major reforms. I would have preferred Andrew Little to keep justice. Immigration is so important with covid ravaging every man and his dog wants to come here. In the meantime we don’t have enough houses and our infrastructure is buckling at the seams. And then we have Kelvin Davis letting out prisoners some that should never get out cause they are murderers with many violent offences to their name. And some should be released but not all. And while he’s letting them out the police and courts are busy locking more up. The justice system needs an overhaul can’t say I have much confidence in the selection but since I voted for Labour I really hope they aren’t going to let me and the many others who voted for them down. People want action and we want it now. Some of us have been waiting for change for a very long time and not incremental change we want major reforms. I looked at the RMA and it has not prevented our TOW from being crapped on. Now I am keen to support our Taranaki whanau whose whanau member/s have sold their whanau Shelly Bay land for blankets and muskets by todays standards. Having been born in Whanganui A Tara and raised out the Hutt I just love our windy city. Yes we are all moaning cause we want action and we want it now as I said we are sick of waiting.

  4. Who is not being convicted in NZ…
    Man acquitted of NZ murder on trial in Netherlands after torture chamber found

    https://www.nzherald.co.nz/nz/crime/man-acquitted-of-nz-murder-on-trial-in-netherlands-after-torture-chamber-found/JU76UEUUTZOPKXX4S3ZWSYJYMY/

    More justice time tying up NZ courts, causing remand to fill.

    Killer Dunedin doctor Venod Skantha appealing in Wellington against his conviction for murdering teenager Amber-Rose Rush
    https://www.nzherald.co.nz/nz/killer-dunedin-doctor-venod-skantha-appealing-in-wellington-against-his-conviction-for-murdering-teenager-amber-rose-rush/XRJ5IA457K5YG2MVKLNAVYLK5A/

    • saveNZ: “Who is not being convicted in NZ…”

      In the first case to which you refer, that man was acquitted in a jury trial.

      In the second case, he’s appealing his conviction for murder. Not a snowball’s chance in Hell that he’ll be successful, I’d have thought, given the facts of the case at his trial.

  5. The issue about the two women prisoners having to be gassed to be forced to leave there cell raises a few issues for me. Why have they been put in isolation for so long. If you put a dog on a chain for a few days it will bark become vicious and exert bad and violent behaviour. This is what has happened with these two women. Also why have these women not had extensive counselling and good strong cultural support to prevent them from needing to be put in segregation in the first place and to prevent any anger or behavioral issues they may have. And if the above hasn’t worked we need to find something or someone that does. Two wrongs don’t make a right and the poor inhuman treatment of these two women has actually exacerbated the matter. Segregation is bad enough but for four months that is disgusting. Why are we continuing with practises that do not work. How can we ever expect someone to reintegrate when we do stuff like this.

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