Crime and safety in NZ: This debate is going round and round in circles - Max Harris

The Herald is looking at the state of crime in our country and the solutions available to address in the latest instalment of our series The New New Zealand: Rebuilding Better. Here, lawyer and writer Max Harris looks at our history of dealing with crime and what we need to do to break the cycle

ANALYSIS

As a society we like to think we’re better than going round and round in circles.

History is not a story of linear progress. Countries lurch backwards in understanding or make leaps of insight.

But the hope is each new generation gains understanding – and moves society forward.

In debates about crime and safety, though, I worry we’re going round and round in circles.

Where we’ve come from on criminal justice

In the 1980s and 1990s, countries we often compare ourselves with – like the UK and US – cut social services, reduced progressive taxation, slashed benefits and attacked trade unions. This was followed by an expansion of the prison population, coupled with intensified “tough-on-crime” rhetoric.

New Zealand followed suit. From the late 1980s onwards following Rogernomics, criminal sentencing became more punitive. Politicians ignored landmark reports like Moana Jackson’s He Whaipanga Hou on the need to connect Māori experiences in the criminal justice system to a broader historical, social, and economic context. Māori continued to be over-policed and over-criminalised.

Centrist “Third Way” governments, which claimed they were focused “what works” rather than ideology, doubled down on “tough-on-crime” politics from the mid-1990s to the late 2000s. After a 1999 citizens-initiated referendum on a harsher approach to criminal justice, the Fifth Labour Government in New Zealand continued punitive policies. That government made bail more restrictive and extended maximum sentences. When National came to power in 2008, double-bunking and three-strikes legislation were introduced.

The late 2000s and early 2010s were a torrid time for criminal justice debate, dominated by the Sensible Sentencing Trust insisting on longer prison sentences and narrow policy solutions in response to tragic events.

The tide starts to turn

In the early years of the John Key-led government, public debate on crime and safety started to change. The 2008 Global Financial Crisis and worldwide Occupy movement created unprecedented upheaval and a renewed focus on inequality, resulting in greater attention to mass incarceration in countries like the United States. In 2009 Chief Justice Sian Elias gave a speech that caused some political discomfort in which she asked what turned “blameless babes” into people committing offences.

In 2011 a group of us, supported by Kim Workman of Rethinking Crime and Punishment, set up JustSpeak, an organisation to campaign for a different criminal justice system. Our first monthly forum was on boot camps, then proposed by the government. We hosted meetings combining lived experience and academic voices, on topics like gangs and drugs.

In that same year, Deputy Prime Minister Bill English called prisons “a moral and fiscal failure”.

In 2011 Deputy Prime Minister Bill English called prisons “a moral and fiscal failure". Photo / Mark Mitchell

The Sensible Sentencing Trust faded from view. A group called No Pride in Prisons sought to block police from marching in the 2015 Auckland Pride parade, later becoming People Against Prisons Aotearoa (PAPA).

The 2016 Black Lives Matter protests, along with ongoing Māori advocacy in Aotearoa, led to greater focus on racism in New Zealand criminal justice.

The Labour-led government elected in 2017 promised reforms to criminal justice. A mega-prison in Waikeria was blocked, and in mid-2018 the Safe and Effective Justice Advisory Group / Te Uepū Hāpai i te Ora was set up.

An emerging consensus?

Criminal justice policy did not move only in the direction of reform and rehabilitation. Labour’s coalition partner New Zealand First blocked the repeal of three strikes legislation. But especially under Bill English’s leadership of National from 2016 to 2018, there seemed some widespread agreement that New Zealand needed a different approach to public safety.

It seemed more widely acknowledged that prisons are an ineffective site of rehabilitation – and do damage to families on the outside as well as the minds and hopes of those inside. There appeared a growing awareness that to reduce social harm, more resourcing is needed for family violence, sexual violence, mental health – deeper drivers of offending.

After the prison population more than doubled from 4495 in 1995 to 10,435 in 2018 (with the female prison population more than doubling too), the prison population began to decline. There was greater public focus on punitive police tactics, with the police’s Armed Response Team trial dumped due to public opposition in 2020, following campaigns by People Against Prisons Aotearoa and others.

The Labour-led government did maintain double-bunking in prisons. The Hōkai Rangi strategy introduced in 2019 to improve Department of Corrections practice, and to reduce disproportionate Māori imprisonment, also appears to have led to questionable results. But there was a partial, hard-fought consensus at this time, built up over 10 years.

National opposition leaders, including Christopher Luxon, have resorted to “tough-on-crime” rhetoric. Photo / Alex Burton

That consensus now seems to be slipping away. National opposition leaders Simon Bridges, Judith Collins, and now Christopher Luxon have resorted to “tough-on-crime” rhetoric, and have revived failed past policy, such as boot camps, and bans on gang insignias. Despite strong public opposition to arming the police in 2020, the police introduced the “Tactical Response Model” in 2021, supported by Cabinet funding, which appeared to make armed capabilities more available to police.

There are several possible reasons for this ruptured consensus. The Labour-led government may have been insufficiently vocal about the value of a different approach to justice grounded in care and support, missing the opportunity to mobilise a stronger majority for progressive criminal justice policy. Labour’s quiet, discreet approach to criminal justice reform may have left a space to be filled by voices wanting longer sentences and harsher responses. As well, economic inequality caused by Covid-19 has resulted in some retail crime in recent years, and around the world retail crime has received significant attention and prompted collective concern or anxiety.

What’s not clear is that crime, or retail crime, or ram raids, are at any all-time high despite undoubted concern. Crime statistics are notoriously fuzzy: reporting fluctuates with changes in public concern and police practices. (In 2019 police set up a new firearms data collection system, Operation Gun Safe, which made it seem we were suddenly awash with illegal guns, when reporting had simply been improved.)

But even with those caveats, while there was a spike in ram raids reported in August 2022 (with 115 recorded) according to data from Official Information Act requests, there’s been a decline since December 2022 (with 73 incidents recorded in December, 55 in January, and 31 in February – albeit with recorded incidents reportedly increasing back up to 68 in April). An attempt by police to catalogue incidents since 2014, though the category ”ram raid” is new, suggests August and September 2016 saw a greater number of comparable incidents than last year’s spike.

Next steps for criminal justice policy

It’s up to politicians to decide whether they will allow debate on criminal justice to swing back to rhetoric I remember from the 2000s and early 2010s, which demonised young people and dog-whistled about Māori. As members of the public, to whom politicians are accountable, we decide whether we want to allow that backsliding.

We can continue to take social harm and accountability seriously, while recognising the failure of prison sentences that remove people from families and communities and leave them no more capable of addressing the root causes of offending.

There are still multiple urgent priorities.

Māori continue to comprise 53 per cent of the prison population. 37 per cent of Māori were victims of crime in 2018. In the health sector, longstanding failings in services to Māori prompted a rethink, and greater self-determination for Māori through a Māori Health Authority, which also may uphold obligations to honour tino rangatiratanga under Te Tiriti o Waitangi. Justice policy requires a similar rethink, drawing on reports like Turuki! Turuki! and Ināia Tonu Nei.

March 2023 figures reveal a shocking 44 per cent of people in prison are on remand: they’re people in prison who have not yet been convicted of a crime. Compare that with a 17 per cent remand population in England and Wales. This is closely tied to the housing crisis: the absence of available accommodation means people have nowhere to stay on bail. There are reports of poor conditions for remand prisoners, and all inmates: an absence of rehabilitation programmes, limited staff support, and inadequate medical care.

Max Harris is the author of the book, The New Zealand Project. Photo / Alex Burton

Another overdue area of action is drug law reform. The referendum on legalising cannabis failed in 2020 but there are reasons for a future government to revisit drug regulation. The introduction of greater police discretion in prosecuting drug-related crimes in 2019 continues to be used disproportionately against Māori. Legalisation and resourcing of drug-checking is an undoubted positive, but drug offending still makes up almost 1 in 10 of people in prison.

In 2018, while living in Europe, I travelled to Portugal to understand its approach to drug decriminalisation. People with less than a 10-day personal supply of any drugs receive administrative sanctions, which result in a referral to a community panel that can order treatment (with the user’s consent), community service, or fines. Portugal’s “drug czar”, Dr Joao Goulao, told me that when Portugal decriminalised drugs in 2001, people feared the country “would become a paradise” for drug users from around the world.

Almost the opposite happened: there have been declines in recent users; in 2017 Portugal had the second lowest overdose deaths in Europe; and reduced stigma led to more treatment demand. The system isn’t perfect: state funding for therapeutic centres has stuttered, migrants (often from Portugal’s former colonies) still face racial profiling, and there remains a drug black market, albeit one more limited than in other places.

Now, closer to home, the Australian Capital Territory has decriminalised drug possession for most drugs. Recent documentaries by Paddy Gower and Guyon Espiner examine the ACT experience and conclude that decriminalisation is the way forward for New Zealand, with support voiced for decriminalisation in ACT from police, among others.

Portugal’s drug czar told me one of the key prompts for change was the tragic death of the Minister of Justice’s daughter. We should not have to wait for the public death of the child of a prominent minister to prompt an overhaul of the Misuse of Drugs Act. Not just because no individual should have to give up the privacy of their family in this way, not just because we might be waiting too long for change, but because our political system shouldn’t only take up overdue reforms when politicians themselves – or their families – are affected. Our politics should be better than that.

Harm reduction as a minimum

One of the places I visited in Portugal was the “GAT Harm Reduction Centre”, which provided clean injection and smoking materials, safely deposited used syringes, and linked drug users to social services, with a focus on relationship-building.

Despite the success of these centres in Portugal and in places where drugs are not fully decriminalised (including Australia), New Zealand has no overdose prevention centre. This is a stark omission in a country where (as of 2021) overdose fatalities exceed fatalities from drowning, and where overdose deaths rose by 54 per cent between 2017 and 2021. The NZ Drug Foundation has proposed a trial of a centre in Auckland, drawing on evidence showing supervised drug spaces improve safety, reduce harm, and prevent drug overdoses and deaths. Key to the success of such spaces are specialist staff with medical training, and the availability of drugs like naloxone to reverse overdose effects. A trial of an overdose prevention centre would require a simple Order in Council to permit an overdose prevention centre to operate legally. With the risk of overdoses increasing – due to changing patterns of drug use and greater frequency of drug contamination – any government serious about reducing social harm should offer its support to a trial like this.

Maintaining our precarious consensus on criminal justice requires resources and political will. But it’s worth it. For a society that addresses and unroots decades of harm caused by colonisation. For a society that understands and tackles drivers of offending, including sexual and family violence. For a society that centres care and support, and believes people who make even significant mistakes in their lives are still deserving of love. For a society that does more than go round and round in circles.

Max Harris has worked in law, economic policy, campaigns, and academia. He is the author of the book, The New Zealand Project, and now splits his time between legal research and campaign work for ActionStation. He was the campaign manager for Efeso Collins’ mayoral campaign.