Futurelearning

Restorative justice answers to grim prison stats

“New Zealand, with its global ethical reputation and strong institutional foundation in ethics, should not sit between Saudi Arabia and Columbia in the international rankings when it comes to imprisonment – and yet it does,” Victoria University of Wellington’s Brian Picot Chair in Ethical Leadership, Professor Karin Lasthuizen, told a University-organised conference on restorative and Māori justice approaches to the country’s prison crisis. 

According to World Prison Brief data, New Zealand has 220 prisoners per 100,000 of national population, compared with 197 for Saudi Arabia and 226 for Columbia. The figure puts New Zealand at 35th worst out of 167 countries, the worst being the United States with 698 prisoners. 

The conference, co-hosted by the University’s Diana Unwin Chair in Restorative Justice, Professor Chris Marshall, and Lasthuizen, brought together New Zealand and international scholars, restorative and other justice practitioners, and former prisoners (some of whom are themselves now scholars or practitioners). 

Among participants were criminologists from three of the better performing countries in the World Prison Brief table: the Netherlands (59 prisoners per 100,000 of national population), Northern Ireland (77) and Germany (78). 

The Dutch prison rate has nearly halved over the past 50 years, to the point where it has announced the closure of 30 prisons and is using spare capacity to house prisoners from Belgium and Norway, said Miranda Boone, Professor of Criminology at Leiden University in the Netherlands. 

Present throughout the conference was Chester Borrows, the former National Party MP and Courts Minister who is chairing the advisory group for the Government’s Te Uepū Hāpai I te Ora: Safe and Effective Justice reform programme, which aims to reduce the prison population by 30 percent over 15 years. 

The conference gave Borrows a sense of “hope and support and encouragement” for the programme, he said at the end of its two days. 

“The restorative process is something that has an ongoing and enduring benefit and it’s not just for the individuals in the room but it is for whānau and it is for the community. And so I see then, and I think it’s being reinforced all the time, that we need to make significant changes.

"It needs to move from individual to whānau and to the community, it needs to move from punitive responses to educative and restorative responses, and it needs to be taken away from something the state does to you to something the community does with you.” 

The conference explored alternative practices that might reduce our prison rates, which particularly impact Māori, who make up around half of the prison population of more than 10,000. 

Along with restorative justice, strategies proven successful in Europe include prison as a last resort, sentences as short as possible, non-custodial sentences for property crime, abolition of three-strikes and other increased sentences for repeat offenders, and regular release after half or two-thirds of a sentence (compared with New Zealand’s average of 70–80 percent of a sentence served before parole). 

“It’s not a risk for society, because we know earlier release doesn’t have a negative impact [if combined with sufficiently supported through-care by the probation and aftercare services and the community],” said Emeritus Professor Frieder Dünkel, of the University of Greifswald in Germany and a past president of the European Society of Criminology. 

“If you want to reduce the prison population,” he said, “you have to look at who is going to prison and who can maybe be decarcerated.” 

Lasthuizen identified a strong link between ethical leadership and restorative and Māori justice. 

“Because ethics starts with the question, ‘What’s the right thing to do?’ At the heart of ethical leadership are the values we hold dear and share with our societies and our communities.

"Values such as justice, fairness, respect, and compassion and empathy. And because incarceration is the greatest measure of coercion a state can exercise over human beings, it is especially how we treat those in prison that holds a mirror up to us.

"How we live up to those values and how important we really find them. Most New Zealanders would agree with me that the current situation, with high prison population rates and disproportionately high incarceration of Māori men and women, is not right.” 

Aphra Green, General Manager of the Strategy, Evidence and Investment Group in the Ministry of Justice, and Ben Clark, Acting National Commissioner in the Department of Corrections (one of the conference’s sponsors), outlined the progress of fresh thinking and initiatives in their departments. 

“There is a massive challenge ahead,” said Clark, but he hoped that “through our actions rather than our words” it would be clear Corrections is “interested in how we can partner differently and how we can take different approaches to get the kind of results and the goals for our people that we all want to see, which are safe communities and people being able to fulfil their potential”. 

Green conceded “there are many people in this room who have seen many more reform programmes come and go than I have seen in my 10 years in the justice sector, and there have been many and varied attempts at criminal justice reform over the past 30 to 40 years, some successful, some less so, some led by government and some led, recommended and advocated by others. 

“A quick review of the past criminal justice transformation efforts will tell you that here in New Zealand we are great at starting new initiatives and not so great at following through. Now I want to be clear that none of what I’m going to say today is a criticism of past reforms. They were of a time and place and were right for that time and place. Many have resulted in significant shifts in New Zealand penal policy over the past 30 years and as government officials we are lucky to be able to build on the successes and lessons, some hard learned, of those reforms.

"On that note, it is intended the reforms recently commenced are right for this time and place. And that they are sustained in a way previous reforms have not been”. 

One focus of the “broad public conversation” the reform programme is conducting with “people who have been affected by the system, victims of crime, Māori, children and young people, academics, NGOs, the private sector, philanthropists and New Zealand and international experts” is to fill a gap from which everything else arises, said Green. 

“Our current criminal justice system does not have at its core a clearly articulated purpose. One need only look at the principles of the Sentencing Act, which articulates eight different purposes of sentencing and then goes on to state that none of those principles are more important than others.

"The system tries to be and do a little bit of everything. And without a central purpose the criminal justice system has gravitated to the control of risk.” 

Coupled with this, the range of available responses to risk has not expanded, said Green. 

“The system has tended to contain people rather than look at how it can better manage their risk by addressing their needs,” she said. 

“In short, the system has evolved to be responsive to the worst cases not the largest number of people and their needs.” 

Successful overseas systems like those in the Netherlands and Germany are organised around central tenets of rehabilitation and community-based interventions and restoration, said Green. 

Tim Chapman is a visiting lecturer in restorative justice at the University of Ulster in Northern Ireland, who spent 25 years in the country’s probation service and has contributed to restorative justice practice in its community and statutory sectors (including the prison service). He is chair of the board of the European Forum for Restorative Justice

Chapman told the conference,

“This is a quotation we use a lot. It comes from Australia. ‘The person is not the problem, the problem is the problem.’ If we could just really get that. There are so many politicians in my country who talk about getting tough on crime. They don’t mean it. They have no intention of getting tough on crime. What it means when you translate it is, ‘I’m going to get tough on people.’ That’s what everybody understands by that. If only they would get tough on crime – the injustice of crime and also the injustices that cause crime. Then that would be toughness. But politicians in my view don’t have any intention of doing that. They want to get tough on people, because that makes them look good in some way.” 

It is important, said Chapman, not to see a prisoner “as a collection of risks to be managed or a carrier of problems such as drugs and mental health, but as a person whose actions have incurred obligations of debts to victims, to their community, to their family and to themselves, which they must address during their sentence. But also society must address the injustices that have occurred in their lives, so they can be empowered to do the right thing to the people they have hurt”. 

He said, “We train our students when they’re listening to the perpetrator or to the victim to listen for the emotion that comes from the harm. This is so simple you probably think it’s ridiculous. So if there’s a harm of anger, there’s a need for justice to be restored. If the harm concerns fear, they need safety restored. If it’s shame, it’s respect they want. If it’s anxiety, they need to restore control over their lives. This, interestingly enough in our experience, applies equally to victims and perpetrators. The same needs arise from both parties.” 

Chapman ended with a quote from the late actor and UNICEF Goodwill Ambassador Audrey Hepburn: “People more than things have to be restored, renewed, revived, reclaimed and redeemed. Never throw out anyone.” 

Janine Carroll is director of Restorative Now, which provides restorative practice training, implementation and facilitation, and a 30-year veteran of restorative practice across criminal justice, education, police, family social work, housing and community agencies in New Zealand and the UK. She sits on the expert advisory group of the UK’s Restorative Justice Council

Carroll asked, “What is the task of the Department of Corrections? Correcting what exactly?” 

Harmful behaviours, she said, “are driven by unmet needs, neurological damage, poverty of so much, historical trauma, adverse childhood experiences. Surely these are way beyond the scope of one department.  

“Individuals’ damaged psychological states and the impact of societal inequalities are political public health issues. Restorative practice evidences that the healing lies in connection rather than punishment.

Punishment is about ‘Othering’ and is violent. Restorative practitioners, in having witnessed the power of dialogue and healing, must call for a shift in focus related to harmful behaviour. It is time to recognise that the ritualised shaming that is punishment is just additional layers of violence and compounding of existing neurological trauma. 

“In my practice, in the facilitating of over 800 restorative practice conferences, I have never once heard a victim state that they needed the perpetrator of harm punished. It is third parties, bystanders and the state who seek to punish. And as for the perpetrator of that harm, the wounded self must be healed before being in a position to atone for the hurt of the other. Because it is harmed people who cause harm. 

“In 2018, our challenge is surely to move beyond the remedy of cages, ostracism, labels, punishment and shaming, to the response of healing dialogue, a recognition of human dignity, of wrapping around, and of lifting up.” 

Prison population rates are not fate, said Dünkel. “They are the consequence or result of political decisions and judicial practices. So it is up to you, up to society, to decide how many prisoners you want.” 

Next week, Future Thinking will report on Dr Moana Jackson’s and Dr Kim Workman’s Māori perspectives at the conference. 

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