The staggering ethnic disparity in our criminal justice system speaks to generations of disadvantage in a range of factors, including socioeconomic status, drug and alcohol abuse, inter-generational trauma, cultural dispossession and ethnic bias.
The simple fact is we have a criminal justice system that that is sick with institutional racism. This is not just my conclusion, or the conclusion of Maori advocacy groups – this is the conclusion of the Department of Corrections itself.
New Zealand has the 2nd largest prison population relative to its size in the western world, second only to the United States. It is 84% higher than the advanced economy average.
While Maori make up just 15% of the general population, Maori men account for 50% of the male prison population and Maori women account for 57% of the female prison population.
For young Maori the statistics are even worse – of all prisoners under the age of 20, Maori account for 65%. When it comes to re-offending things don’t get any better – there is an 80% likelihood of a Maori prisoner being reconvicted, compared to 67% for non-Maori.
Overall, 40% of Maori men over the age of 15 have done prison time or a community sentence.
These statistics are truly shocking, but what is worse is that they are not particularly new. In many ways they are very well known, in fact so common they have become normalised as part of our natural social environment. This must change.
Key to understanding this is acknowledging the fact that although Maori are over-represented in this area for a variety of reasons, they are most certainly over-represented due to the very fact that they are Maori. Socioeconomic status, past offences, gender, drug and alcohol use all play their contributory roles. But if we forget that ethnicity itself is a risk factor, then we lose the wood for the trees.
Don’t just take my word for it. In 2008 the Department of Corrections compiled a report entitled “Over-Representation of Maori in the Criminal Justice System”. In it they referred to the idea of “Bias and Amplification”:
“It is generally understood that each stage of the criminal justice system, from apprehension through to sentencing, contains a significant degree of built-in discretion with respect to decision-making.”
These stages would include the judgment of officers “on the beat”, the decision after apprehension of whether to arrest a person, the decision whether to proceed to prosecution, the decision of the court to then convict or not convict, and once convicted the decision of the judge regarding appropriate sentencing options.
This process continues on even after sentencing. Parole Boards make decisions with respect to those imprisoned, for instance if part of the sentence can be served as Home Detention or whether an early release may be granted. Probation Officers supervising community-based sentences and orders also exercise discretion in notifying breaches of conditions or whether recall-to-prison proceedings should be initiated. The report states that
“The explanation inherent to justice system “amplification” is that systemic factors exist at one or more of these step in the process, which serve to increase the likelihood that, relative to non-Maori, Maori will progress further into the justice system and be dealt with more severely…the result of such influences would be that Maori “accumulate” in the system in disproportionate numbers.”
The report thus defines the method by which any perceived bias could occur. It is not dissimilar to the “Swiss-cheese” model of risk known to most medical professionals, which postulates that a succession of small errors is much more common in the production of adverse events than any single large one.
When it comes to apprehension an important point raised was the extent to which the detained person cooperates with the Police officer. Perceptions of bias among Maori and Pacific Islanders were very common and studies have demonstrated Maori hold relatively negative attitudes towards police. The report admits that:
“It is conceivable that this negativity may motivate hostile and uncooperative responses when in direct contact with the Police…such behaviour could in turn increase the likelihood that the Police take the matter further.”
There is also evidence that in individuals with a history of family violence, police sanctions “more often result in criminal acts of defiance than deterrence.”
Turning to prosecution, the data clearly illustrates that Maori are moderately more likely than Europeans to be prosecuted, and are prosecuted in higher numbers than the number of apprehensions might suggest. The report lists one of the most important factors involved in this as a history of previous offending.
With regards to sentencing, the report admits that “on the scale of severity, fines are typically regarded as at the less severe end.” A review of all persons sentenced between 1996-2004 revealed Maori typically received a fine less frequently than did Europeans or other sections of the total population. The report states that:
“It seems likely…that ability to pay, an obvious consideration of whether a fine is imposed, reduces the probability that Maori would receive monetary penalties, given the well-documented disparities in annual income between Maori and non-Maori.”
So Maori, owing to pre-existing economic disadvantage, are barred from receiving what is widely considered punishment that is at the “less severe end.”
A similar trend is apparent in the most severe penalty, namely imprisonment.
“Maori were more likely to receive a prison sentence. Between 11% and 13% of convicted Maori receives sentences of imprisonment, as opposed to 7-9% of Europeans, a statistically significant degree.”
In its summary report makes explicit reference to non-ethnic factors contributing to the above disparities:
“Much of this apparent ethnic difference is able to be shown to be related to other factors which validly apply, equally, to all ethnicities – factors such as previous offending history.”
But it then continues:
“However…a number of studies have shown evidence of some greater likelihood, associated only with ethnicity, for Maori offenders to:
- have police contact
- be charged
- lack legal representation
- not be granted bail
- plead guilty
- be convicted
- be sentenced to non-monetary penalties
- be denied release to Home Detention
Finally it makes a rather categorical admission:
“There appears to be sufficient evidence to conclude that ethnicity, in and of itself, plays some small but tangible role at key decision making points, in ways that are not intended by the justice system.”
Remember that this is a government commissioned report, conducted by the Department of Corrections which concludes that racial bias does in fact exist within the criminal justice system. Also remember that this was in 2008.
For those stubborn individuals in our society and political realm that continue to deny that ethnicity plays a role in disadvantage, that statement, my friends, is what they call a coup de grace. There is no debate on this issue anymore – there is only disingenuous political sentiment and ignorance.
If we establish that being Maori, in and of itself, is important then we need to think about why that is. It is easy to consider it from the perspective of unconscious (or conscious) bias on behalf of those involved in the system, for example police officers or judges. While this may be true, what is likely to lead to more fruitful ideas is recognising what justice actually means for Maori, and how traditional Maori concepts around justice are ignored in the current system.
Unfortunately the focus of law, policy, media and research involved with criminal justice focuses too much on factors such as poverty, alcohol, lack of education, solo parenting, employment or physical and mental health, while ignoring Maori ethnic and cultural identity directly. It then ignores what is a crucial factor – the intergenerational effect of the trauma of surviving colonisation.
There is abundant evidence from Maori scholars such as Mason Durie and Moana Jackson that engagement with a secure and healthy Maori identity is central to addressing the vicious cycle of poverty and harm. A healthy identity is one where people may access their language, cultural norms and practises. It is also one where these are validated and endorsed by society at large.
So what are some of the concepts of justice in Maori society?
Tikanga Maori and the Justice System
The structural framework of Maori society is based upon whakapapa, or genealogical connection. Personal identification starts with membership of larger groupings, such as the whanau, hapu, or iwi, and individuality is secondary to the collective.
The key dynamic of tikanga is to maintain equilibrium between parts of the human and non-human world. This is achieved by utu, meaning balance or reciprocity. Social and legal factors are controlled through the complementary principles of tapu and noa.
Tapu means a person, place or thing is ‘off-limits’ unless certain protocols are followed. Notably, there is an inherent tapu attached to all human beings. Noa means that a person, place or thing is ‘safe’ to use or access. Essentially, tapu and noa designate what is lawful and what is not. To break the tapu of a person or resource is an offence, or hara.
Another important concept is mana, or a person’s reputation, charisma or influence. Mana may derive from many factors, such as mana atua (birthright), mana tangata (gained via deeds or actions) and mana whenua (in accordance with the geographical location of the tribe, i.e. citizenship).
The basic principle of offending in Maori society is the breach of tapu through commission of hara, which affects mana and requires utu. The aim of dispute resolution was therefore to restore balance, and the mana of the parties involved.
Owing to the collective nature of society, an insult by one member of a hapu against a member of a different hapu was viewed as an offence of the first hapu against the second. This kind of collective responsibility could be more functional than individual culpability as recompense may be more possible when it is shared amongst many rather than applied to a single person. There were consequences for the individual also, mainly whakama or shame. The fact that the whole hapu could be injured by an individual’s actions would work as a powerful deterrent.
The essential difference between the Maori system of justice and that of European society is that, owing to a worldview predicated on harmony and balance, reparation is of far more importance than punishment. Maori society also made it imperative that the victim be included in this process in order to ensure a stable and enduring outcome. The emphasis on the future also prioritises reintegration of the offender into society and the healing of the victim.
Moana Jackson sums up the system very well:
“The rights of individuals, or the hurts they may suffer when their rights were abused, were indivisible from the welfare of the whanau, the hapu, the iwi. Each had reciprocal obligations found in shared genealogy, and a set of behavioural precedents established by common tipuna. They were based too on the specific belief that all people had an inherent tapu that must not be abused, and on the general perception that society could only function if all things, physical and spiritual, were held in balance.”
The common law system introduced by European settlers imposed many concepts alien to Maori ideas of justice – including the notion of an atomised individual (as opposed to collective), a materialistic focus, the exclusion of the victim from the process and the lack of focus on reparation. It is also sadly ironic that Maori had no concept for that European penalty known as imprisonment.
All of this explicitly breached the principles of Article Two of the Treaty of Waitangi – namely tino rangatiratanga, or Maori sovereignty over Maori affairs.
Maori psychiatrist and scholar Mason Durie identifies loss of access to Te Ao Maori, through loss of land, language and tikanga, as the historical events that define modern Maori identity. The material, physical and psychological damage perpetuated on Maori by ‘assimilationist’ policies, including the loss of land and resources, and the trauma of surviving violence and illness that decimated entire generations, should not be underestimated.
The resulting disadvantage Maori found themselves in also helps to entrench the institutional racism via under-representation of Maori as legislators, judges, lawyers and jurors. There is a clear sense among many Maori that the legal system is not shaped in any way by Maori, which directly contributes to Maori distrust of this system.
For example, historically Maori were not allowed to sit on juries for trials of non-Maori defendants until 1962. To this day there remains concerns about Maori representation on juries – the current law provides that potential jurors must be over 18 years of age, registered on the electoral roll, live within 30km of the court and have no disqualifying convictions. Many Maori do not meet these criteria – owing to a predominance in rural areas and previous convictions, or transportation/childcare barriers.
Another problem is the ability of “peremptory challenges” to allow the Crown and defence to dismiss jurors without cause. Evidence has shown that prosecutors often view Maori as anti-police an anti-Crown, while being empathetic to defendants. The research showed that Crown counsel were twice as likely to challenge Maori as non-Maori in High Court, and three times as likely in District Court.
So much for being judged by a “jury of one’s peers.”
It is an interesting fact that prior to European contact, Maori women had a legal standing in their society that was superior to Pakeha women’s standing in theirs. They had their own separate legal rights and could own and dispense property. They retained their own name and family connections upon marriage, which could also be dissolved without prejudice to her reputation or consequence to her assets.
Simply put, the colonial system and the imposition of European law reduced the status of Maori woman and was a disaster for them.
Much commentary has been made upon the change from the extended whanau to the nuclear family unit, where Maori women lost much support from this network and became isolated in individual households with full responsibility. In Maori society there was no clear distinction between a public and private sphere, which arguably lessened the likelihood of domestic abuse, which appeared largely absent in Maori society and if present was visible and dealt with in a very straightforward way.
Today young Maori women are more likely to be the victims of violent crime than any other group in New Zealand and the most likely to be repeat victims of violence. Much of the violence perpetrated against Maori women is at the hands of Maori men.
Policy for the Drivers of Crime
The Opportunities Party policy on Criminal Justice is part of a combination of policies that seek to address the drivers of economic inequality, a variable that is consistently identified as being directly correlated to the incidence of crime.
These policies include Tax Reform, Thriving Families Unconditional Basic Income, Real Deal Cannabis and Real Action on Alcohol policies, Education policy, Rental policy and the Unconditional Basic Income for 18-23 year olds.
Taken together, they seek to address the various factors associated with crime, with the evidence suggesting they would result in lower crime and lower criminal justice costs. TOP identifies that despite this problem being obvious for decades, Establishment Parties such as Labour and National have failed to fix it.
Underlying this is the ‘worm at the core’ of these kinds of parties – the need to appease the “vociferous segment of the public who demand simplistic retribution”. Those who just want to “lock ‘em up”. It is another example of Establishment parties betraying the evidence in pursuit of votes.
Tikanga Maori Policy
The Opportunities Party’s policies to address the socioeconomic drivers is all well and good, but this entire piece has been about the fact that being Maori, in and of itself, is associated with poorer outcomes in the criminal justice system. So what are they doing to address that?
Fortunately, as a cornerstone of their policy they champion an increase in funding and support for the Restorative Justice system. As we’ve seen, the traditional Maori concept of justice placed much more emphasis upon reparation and victim support than punishment. It is therefore a policy that is in accordance with tikanga Maori.
It’s also a policy that works – reoffending rates for those who participated in restorative justice were 15% lower after a year than comparable offenders who did not participate.
They also note that the traditional arena of European justice is the providence of judges, public servants and other experts and is often viewed as very “elite.” They describe how Restorative Justice “can be thought of as a state-provided space where citizens meet each other, in this case, offenders and victims, to heal their relationship” and that “this can be done in line with tikanga Maori if that is what the participants choose.”
People often speak of the wisdom of indigenous peoples, sometimes correctly and sometimes not. But it is interesting that the European system of justice, which appears to be failing on all reasonable indices, will have to turn back to the principles of a justice system that it considered primitive and sought to supplant. Restorative Justice is tikanga Maori through and through, but its application would benefit all members of New Zealand society equally.
The Opportunities Party also propose raising the age of the Youth Court from 17 to 20. They cite evidence that since 2011 the Youth Court has overseen a 48% reduction in youth offending. Maori are, on average, younger than non-Maori in population terms, and would benefit from such a change.
Liberals and The Death of Policy
For all those who consider themselves in favour of Maori rights and correcting Maori disadvantage, there seems to be a conspicuous absence of outrage at the disgrace that is our criminal justice system.
This is both a personal failure, and a predictable outcome of allegiance to Establishment Parties, both Labour and National, who are evidently aware of this untenable state of affairs, and more evidently unperturbed by it.
I grow weary of seeing my liberal friends continuing to throw support behind a party, namely Labour, who have shown no willingness to really address this problem. I understand that everyone has the right to vote for whom they wish, on whatever grounds they wish, and I understand that very often people vote for a personality or in response to a feeling. This is all part of politics.
But if we are happy to ignore sound policy to rectify this extremely concerning issue, then we should be honest with others and ourselves that fixing Maori disadvantage, and therefore institutional racism, is just not a high priority for us. And personally I think that makes a mockery of our professed liberal values – because what could be more repugnantly illiberal than a racially biased state that disproportionately incarcerates its ethnic population?
Lastly I think ignoring this is an abdication of one’s duty as a New Zealand citizen. Our founding document is a beautiful and unique one that stipulates a shared duty-of-care between Maori and non-Maori. We are failing to honour it, to our severe detriment.
Maori over-representation in crime statistics and incarceration is an issue that sits at the crossroads between income inequality and racial prejudice. To address it properly we need bold policies that will right both of these terrible wrongs. The Opportunities Party’s policies are the best chance we’ve ever had of doing that.
So y’know, let’s actually do this.
‘Over-Representation of Maori in the Criminal Justice system – Department of Corrections, May 2008
This piece is also heavily indebted to – Chapter 12 – Maori and the criminal justice system in New Zealand, Criminal Justice in New Zealand, Tolmie and Brookbanks, 2007