People Against Prisons Aotearoa is strongly opposed to all aspects of this Bill. This Bill will intensify the existing harms of the prison system and dramatically increase the prison population. It will fail to achieve the stated purpose of the Bill, fail to reduce serious offending and will fail to “ensure offenders take personal responsibility for the harm they cause”. We strongly recommend that the committee reject the Bill in its entirety.
Our firm opposition to the Bill is based around two key points:
- Longer sentences are more harmful, but no more effective in deterring crime or reducing recidivism than the status quo;
- Alternatives to the regressive sentencing reforms in this Bill, particularly programs and policy changes that address the drivers of serious offending, would be more effective, more humane, and would improve public safety.
Our submission discusses these points in more detail.
The impact of longer sentences
Recidivism and deterrence
There is no sound evidence that longer prison sentences make people less likely to reoffend. A number of studies have investigated the connection between sentence length and recidivism, but there is no consensus among them on whether longer sentences increase, reduce or make no difference to recidivism rates. There is a consensus that if longer sentences do have any impact, whether to increase or decrease or recidivism, it is small.
There is also no evidence to suggest that the threat of harsher sentences deters offending. The inefficacy of the Three Strikes regime in reducing offending or victimisation in Aotearoa provides local evidence of this, in addition to the wider body of evidence and research.
Lengthier sentences for young people
The evidence is conclusive on the impact of harsher sentences for young people. The threat of harsher sentences does not deter youth offending, while lengthier incarceration of young people increases their likelihood of reoffending.
In addition to this, many young people entering the justice system carry trauma from their early life experiences. Many are also neurodivergent, with cognitive impairments, fetal alcohol spectrum disorders, autism and/or ADHD, or barriers to learning. Young people, people with trauma, and people with some neurodivergent traits, often do not have the self-regulation skills, future planning ability and other rational decision-making faculties that are assumed by this Bill.
Put simply, the young people entering our justice system do not carefully and rationally weigh up the consequences when they offend. This Bill means that harsher and lengthier sentences will become an inevitability for young people in the justice system, reinforcing the prison pipeline and creating a generation of life-long offenders.
The Bill fails to acknowledge any of this evidence. It is based on flawed, inadequate, grossly populist rhetoric rather than on any kind of rational analysis of what will improve our justice system. This Bill will fail to reduce offending, fail to help people to reform, and will not stop people from causing further harm once they are released. In many cases this Bill will increase offending and lead to further victimisations in the future.
Lengthier sentences for containment, as a public safety measure
The effectiveness of this Bill to improve public safety therefore rests entirely on the idea that people will not be able to cause harm for the period that they are incarcerated. For the purpose of this submission we will refer to this as a “containment” approach to public safety.
There are two problems with a containment approach. The first is that people do not stop offending or causing harm while they are in prison. Prisons are violent, dangerous places where people are frequently victimised, both by Corrections staff as well as other incarcerated people. This is exacerbated greatly by the ongoing practice of double bunking in our prisons. Locking people in prison does not reduce harm, it simply concentrates harm in one place. Any suggestion that this is acceptable, because people in prison may have caused harm themself and therefore “deserve” this punishment, is both morally repugnant and an indirect violation of human rights.
The other problem with a containment approach to public safety is that only a tiny proportion of the people who cause serious harm are ever sentenced, and will be captured by this Bill. The New Zealand Crime and Victims Survey shows that every year the number of victims of serious crimes like sexual assault are in the hundreds of thousands. As a society we do not have the capacity to contain all of the people who have caused serious harm, because this would involve imprisoning tens or even hundreds of thousands of people. One researcher estimated that if we did imprison everyone who committed just sexual violence, among all the serious offences, around 15% of the population would be in prison at any one time and Corrections’ budget would need to be about 25% of the country’s GDP.
This shows clearly how the approach to harm reduction taken by this Bill is simply inadequate. We need to look at alternatives to make any inroads into reducing the amount of harm that happens every day. Instead, this Bill pours hundreds of millions of dollars into containing only a fraction of a percent of the people who cause serious harm.
Of greatest concern to us in this approach is that the people who do end up imprisoned, and who will be most impacted by this Bill regardless of the actual numbers of people offending, are disproportionately Māori.
Violation of the Crown’s obligations under Te Tiriti o Waitangi
Māori make up more than half of the prison population in Aotearoa, and are imprisoned at a rate 6.4 times higher than Pākehā. This is in part because the justice system is biassed against Māori.
At all levels of the justice system, Māori face harsher responses for the same offending. For the same offending, Māori are more likely to: be apprehended by police, face charges, struggle to find legal representation, be denied bail, plead guilty, be convicted, face harsher sentencing, and be denied home detention.
The limits on sentence reductions in this Bill will also make it harder for Māori to access kaupapa Māori resolution pathways and restorative practice processes. This is because community-based options will not be available without greater sentence reductions.
This will be severely compounded by the recent removal of legal aid funding for reports under Section 27 of the Sentencing Act (2002). In the past these have helped to mitigate some of the bias that Māori face in the justice system, but are now unaffordable for many.
The result is that this Bill violates all three articles of Te Tiriti o Waitangi. By ignoring abundant evidence that the approach taken by this Bill will not work, the Bill fails to meet the standards of good governance promised by Article 1. By denying Māori tino rangatiratanga, especially in preventing access to kaupapa Māori approaches to justice, the Bill violates Article 2. And by worsening the treatment of Māori compared to Pākeha for the same offending, this Bill fails to uphold the promise in Article 3 to extend Māori and Pākehā the same rights.
Broader harms of carceral justice
The harms that people experience in prison reflect the purpose and history of prisons as tools of violence and suppression by the state, particularly against Māori. Prisons were first established in Aotearoa to crush Māori resistance to colonisation. Prisons, and the imposition of the English justice system, were key to colonial theft and expropriation of Māori land and resources, and to the destruction of Māori social and economic systems. This purpose is alive and well today, with substantial harms done to society by our prison system, particularly to hapori Māori.
These harms begin with the people who are incarcerated. In order to survive in dangerous and violent environments of prison, people often learn maladaptive strategies for responding to conflict and interpersonal problems. Common disciplinary strategies in prison, like the use of pepper spray or solitary confinement, are a form of torture that leave people deeply traumatised. Even people who avoid these common, inhumane disciplinary processes are left harmed by the isolation of their prison experience. Meanwhile we have already discussed the unsanctioned abuse suffered by the people in our prisons at the hands of Corrections staff and other incarcerated people, especially double bunked cellmates.
Meanwhile institutionalisation is of concern with any prison sentence, but particularly with lengthier sentences introduced by this Bill. Institutionalisation diminishes peoples’ ability to function outside of prison, and is recognised as a form of chronic health condition. Along with institutionalisation, the stigma of having been in prison follows people on release, where they struggle to find accommodation, work and community connections.
Institutionalisation, the trauma and stigma of prison experience all pose barriers to peoples’ reintegration into communities on release. Along with a lack of effective healthcare and treatment options in prisons, people often relapse into addiction or have other untreated health problems that are worse on release, creating further difficulties.
Many of these harms are worse for young people than for adults. Incarceration leaves young people with trauma, or retraumatises them given that the young people entering our justice system are already likely to have early childhood trauma.
Time in prison or youth justice facilities disrupts the formation of positive social relationships with family, peers and community members. These are crucial developmental years, so the impact of this disruption is life-long. Incarceration also creates barriers to education or workforce training, again during crucial developmental years.
The result is that young people who have been incarcerated are left with negative impacts on their mental and physical health for the rest of their life.
Beyond just those who are incarcerated, prisons cause harm to the whānau and communities from which people are taken. Incarceration places a heavy financial, social and emotional burden on the immediate family. The children of people in prison are particularly harmed, with research showing that they suffer lower educational outcomes, worse physical and mental health, and higher rates of poverty. Meanwhile the violence and harms of prisons discussed above all flows back into communities when people are released.
It is no surprise that even the best rehabilitation programs in our prisons result in only an 8% reduction in recidivism, and most rehabilitation programs are a far cry from this gold standard. Prisons are simply not effective environments for rehabilitation. Compared to alternatives, any prison sentence is criminogenic.
Alternatives
There are alternatives to the approach taken by this Bill. Instead of the ongoing costs of incarceration, as well as the flow-on costs once people are released, these alternatives represent a much more effective and more efficient use of the funding that government will have to allocate to Corrections as a result of this Bill.
Alternatives to prison
Kaupapa Māori approaches to justice are shown to be much more effective in reducing future offending than incarceration. This is because they provide an opportunity to address broader systemic failures that have contributed to offending. They also help to build capacities within whānau and hapori Māori such as stronger relationships; conflict resolution skills; awareness of services, supports, entitlements; and knowledge of how to navigate government and justice systems.
Kaupapa Māori approaches also empower victims, placing them in active roles in addressing the harm that was caused. This is a meaningful improvement over the treatment of victims in the current justice system, and goes well beyond the minor improvements made by this Bill.
Other restorative justice approaches show similar effectiveness in reducing particularly violent reoffending, but also other recidivism. Rather than focusing on finding a sufficiently harsh punishment for breaking the law, restorative justice is an umbrella term for processes that aim to repair the harm that was caused. This usually involves offenders being accountable to the person or people they have harmed, all stakeholders being engaged in cooperative processes that address and repair that harm, and the supported reintegration of offenders into the community.
Addressing the drivers of crime
The alternatives described above are still merely an ambulance at the bottom of a cliff. In many cases, particularly depending on the nature of harm that has been caused, restorative justice may not be appropriate or safe. In other cases, the nature of harm that someone has caused might be so serious that there is no pathway for their safe reintegration into a community.
That is why many justice experts advocate for what is known as a transformative approach to justice. Transformative justice takes a holistic approach to crime and offending that often involves restorative justice processes, but also looks to transform the underlying structures and systems that contribute to offending.
These drivers of crime are well understood. They include things like poverty and inequality; alienation; harms from drug and alcohol dependence or misuse; barriers to participation in communities, the workforce or education; inadequate and precarious accommodation; and poor access to healthcare, particularly mental health services. The most effective way to reduce offending and improve safety is to address these drivers of crime. This prevents people from being victimised in the first place, rather than merely waiting until someone has been harmed and then trying to find the best way to respond.
For Māori, many of these factors are coextensive with ongoing processes of colonisation that have seen them disconnected from their whakapapa, culture and history; railroaded into low wage jobs; and denied fair treatment in the education, health and justice systems. More broadly, many of the social problems that we seek to address by incarcerating people, including with legislative changes like this Bill, arise from breaches of Te Tiriti.
By upholding Te Tiriti, and enabling genuine tino rangatiratanga and mana motuhake, we can most effectively address these social issues for Māori. This will require considerable work on the part of the Crown, including constitutional changes and addressing historical breaches of Te Tiriti, which are extensive.
However it is not just Māori who offend, despite racist popular perceptions, and common portrayals in media. In order to genuinely reduce the number of people who are harmed by serious offending each year we need to address the drivers of offending for everyone in Aotearoa.
This would mean a commitment by the government to provide high quality education, housing, healthcare and dignified, well-paying jobs. More specific changes could involve the decriminalisation of drug use and the treatment of drug harm as a health issue; taking a harm minimisation approach to alcohol licencing and advertising; or addressing homelessness by enacting Duty to Assist legislation similar to what has been recently passed in Wales.
The Turuki! Turuki! Transforming our criminal justice system report by Te Uepū Hāpai i te Ora Safe and Effective Justice Advisory Group details a range of other options for transformative justice that the committee could consider instead of this Bill. However it is worth noting that this report is out of date, and does not necessarily reflect current best practice or approaches. It would be well worth undertaking a new report on transformative justice in Aotearoa.
Alternatives for young people
For young people, all evidence suggests that interventions that avoid youth justice facilities and exit young people from the prison pipeline are most effective. It is deeply concerning to see this Bill doubling down on an approach that all available evidence suggests will have the opposite of the intended effect.
Alternatives for young people can involve family group conferences, the use of diversions, and other wrap-around supports. Programmes like Kotahi te Whakaaro and He Poutama Rangatahi have shown promise but need vastly more resourcing.
Like adults, the most effective alternatives for young people is to address the drivers of youth offending. In many cases these are connected; the same drivers of offending by adults have negative impacts on young people that lead some of them to offend.
We covered this extensively in our submission to this committee on the Ram Raid Offending and Related Measures Amendment Bill (2023), and so have reproduced the relevant section here. It required only minor edits to ensure it was relevant to this Bill as well, which is a troubling indication of how poorly-informed this Bill is by the abundant evidence that has been presented to this government.
For young people currently in the youth justice system, as well as for young people who are at risk of engaging in dangerous or criminal risk-taking behaviours, reducing offending starts with their environment. Experts have commented that a significant problem for many young people already in the justice system is that they get out and the environment they return to, which prompted them to offend in the first place, is usually still there and unchanged.
It is also important to understand what individual factors can lead to young people engaging in criminal offending. Factors like economic stress, poor mental health and boredom all contribute to the kind of risk-seeking behaviour that is involved in much offending.
Solutions must address both individual and environmental factors. We need to ensure young people have opportunities to engage in society, have a voice in their community, and that they have healthy and supportive relationships with the people in their lives. Having a stable family life, as well as broader social stability, economic stability, and positive connections to the community, such as through a church or sports club, are all known to reduce the chances that a young person will offend.
Appropriate resourcing is therefore needed for parents, schools and communities to engage with and support young people. Programmes specifically aimed at supporting parents to have more consistent, positive interactions and greater emotional communication with their children help to reduce the chances of children offending as teenagers. More broadly, reducing the economic and social stressors on parents will ensure all families are positive, supportive environments that nurture healthy young people.
Finally, support and resourcing is needed for schools and teachers to implement positive behaviour management plans, focused on ensuring regular attendance and avoiding stand-downs, which are both known to contribute to youth offending.
Truancy measures should involve building trusting and supportive partnerships between whānau and schools, and identifying any barriers to regular attendance. Truancy measures cannot merely rely on fines or punishments for parents, because these act only to further disadvantage students.
Avoiding stand-downs involves supporting positive behaviour and engagement with learning before any significant harm is caused. Accessing the existing support for students at risk of these behaviours is currently a long process that involves burdensome amounts of teacher and school leadership time. The kind of full, wrap-around support that is needed for continuity between home and school in some cases remains unavailable. Many schools also need support to implement restorative justice programmes, which can avoid stand-downs by helping to address harmful behaviour before it escalates.
Schools also need more resourcing and support to address young people’s increasingly complex learning, social and emotional needs, to ensure that all young people experience success. Success at school is associated with a raft of positive outcomes that reduce offending.
Conclusion and recommendations
The overwhelming weight of evidence and experience of people involved in the justice system suggests that this Bill will cause significant harm, and achieve none of its aims. We recommend that the committee reject the Bill in its entirety and instead undertake to update the Turuki! Turuki! report on transformative justice in Aotearoa. This would provide a roadmap to a genuinely effective justice system, and more broadly to a society that prioritises peoples’ health, safety and happiness.