If prisons actually worked we wouldn't need them

Crime and justice have been framed as a serious and worsening crisis during this election season, but much of what we’ve been persuaded to believe about criminal justice isn’t based on good evidence, and the different parties’ policies on how to address these problems aren’t either.

From a criminological point of view, statistics about the incidence of crime are notoriously unreliable measurements for the actual incidence of crime. Crime is deviance, and deviance is concealed, so crime statistics better reflect where policing agencies choose to focus their attention than they do the actual incidence of crime.

If every corporate boardroom and accountant’s office had a police officer with a calculator peering over everybody's shoulders, we would be talking about crime as a rich, white, male problem. But police focus on poor and non-white people, who are perceived as the main perpetrators of crime.

In the past four years’ reporting period, the number of violent crimes reported to the police has fluctuated but shows only a moderate increase, excluding during lockdown in which they naturally plummeted. Theft has increased, which is unsurprising in a society as unequal as ours. But if this is a social problem we want to solve, we’ll need to recognise it as a problem originating in society, rather than ‘those people’s’ problem.

If you believe the major parties, though, we need to go for the gangs.

The National Party is proposing to criminalise the wearing of gang patches in public. The prison system enacted similar bans in the past, so incarcerated gang members started tattooing themselves to express their gang identity, which deepened rather than weakened gang members’ identification with their gangs, turning a removable patch into a lasting inscription in the flesh.

NZ First aims to designate gangs as “terrorist entities” under the Terrorism Suppression Act 2022. This may have been a typo, but no such act exists – it probably means 2002. Typos aside, a terrorist entity is defined in law as acting “(a) to intimidate a population; or (b) to coerce or to force a government or an international organisation to do or abstain from doing any act”.

The New Zealand government has already famously tried and failed to use anti-terrorism laws to solve non-terrorist problems, with the Operation 8 raids and subsequent trial of Tūhoe sovereignty activists in 2007. The defendants were acquitted of all terrorism charges. I’m no fan of the Mongrel Mob, but it’s not a terrorist organisation. Such a designation would fold under the slightest judicial scrutiny.

Both New Zealand First and National would make gang membership an automatic aggravating factor in any sentencing. Fine – but membership is already an aggravating factor for any offence in which that membership is relevant. Both parties would also want anyone in a gang sentenced more harshly any time they were before the courts for any reason, including driving offences and petty theft.

NZ First outdoes itself (and all the other parties) on gangs with a policy that calls for the construction of a specialty gang members-only prison. This would result in the imprisonment of upwards of 2000 people in a single facility. It would have to be about twice as large as the country’s present largest prison and require transferring about a quarter of the country’s prison population away from their support networks outside, severing whānau ties.

It would need to be run as an entirely maximum-security facility because it would put every feuding gang in the country in proximity. Nothing like this has ever been tried in New Zealand, because nobody has ever put so little thought into a criminal justice policy before.

There are some more sensible policies on crime from the left bloc. Labour and Te Pāti Māori are both proposing measures that would reduce the role of police as first responders to situations like mental health crises, supporting a multi-agency response in which social and health workers would take the lead, with a police officer attending only as backup.

Police respond to tens of thousands of mental health crises in a year, and frequently admit they aren’t capable of handling them. One in 10 incidents in which police use force are against somebody in mental health crisis or attempting suicide. The Green Party also supports reducing the role of police as first responders, with funding for Māori and Pacific Wardens. Te Pāti Māori is calling for an independent Māori Justice Authority replacing police, courts, prisons and the so-called ‘youth justice’ system.

And then there is sentencing, and the courts …

Labour would introduce measures aimed at increasing the prison terms of those convicted of ram raiding. Given half of people who leave a prison are back inside one within three years, it’s unclear how this would help anyone.

The Greens and Te Pāti Māori would expand the use of youth, rangatahi, Pacific and drug courts as a way of increasing the number of non-custodial community sentences which could potentially reduce the recidivism associated with prison terms.

Te Pāti Māori, aware that the prison population is increasingly made up of people held on remand awaiting trial, would repeal the Bail Amendment Act 2013.

This Act reversed the burden of proof for some accused, who are required to argue that they should be allowed to await sentencing in the community rather than the Crown being required to demonstrate that they shouldn’t. This has led to a massive increase in the remand population, who are on track to outnumber sentenced prisoners.

Like NZ First, the Act Party is also promising new prison construction, earmarking $1 billion to spend building capacity to incarcerate a further 500 people. Given the prison population is currently below its recent historical peak, Act evidently foresees a massively expanded prison population if it won a term in office.

The irony is extreme. Act promises to defend the liberty and freedom of the individual yet will shovel poor people into prison cells at a rate unseen in this country’s history in an apparent attempt to do so.

National is suggesting the expansion of rehabilitative programmes into remand facilities. At present, people remanded into custody have little access to these programmes, most waiting for trial or sentencing in conditions akin to maximum security.

In a rare alignment with National, Te Pāti Māori is also calling for increased provision of rehabilitative services. Act would require participation in these programmes as a condition of parole, but the main obstacle to this is a lack of rehabilitative programmes. Funding for these would need to be hugely expanded, which I can’t see happening under a government involving Act.

The Greens are calling for more transitional housing for people leaving prison; Alice Mills, from the University of Auckland, has demonstrated that stable housing is crucial if we want to reduce rates of recidivism.

Te Pāti Māori is arguing for the outright abolition of prisons by 2040, which aligns with my own position on prisons – how many generations are we going to lock up before we admit that if prisons were going to fix things, they’d have done so by now?

Even as a criminologist, familiar with the politicking of crime, Act’s position on child imprisonment shocked me. Act would build more child prisons to hold up to 200 more incarcerated children and give responsibility for running them to the Department of Corrections. It would use ankle monitors on children as young as 11 and allow 17-year-olds to be put in adult prisons.

National says it would send children to military-style bootcamps, returning to the borstal system in which this country once imprisoned children. The Royal Commission of Inquiry into Abuse in State Care has lasted half a decade and found that more than 250,000 children were raped, tortured or abused in borstals just like these.

If such policies were implemented, we would find ourselves sitting down in a generation’s time for another commission of inquiry. Labour, not much better, proposes the construction of two new child prison facilities, increased searches of imprisoned children and their visitors, and increased use of solitary confinement in the case that child prisoners riot.

The Green Party, in contrast, would move to ban the imprisonment of children in adult prisons. Given the current closure of one of our two youth wings, this is actually a timely proposal. Te Pāti Māori would raise the age of criminal responsibility from 10 to 16, which would help to divert young people away from the justice system. Both measures would help to avoid the negative consequences of incarceration at a young age.

Most stridently, Te Pāti Māori would abolish so-called ‘youth justice residences’ by 2030. This is more practical than its prison abolitionist proposal; there would be a relatively smaller population to be wrapped around by other social services.

I have always been interested in criminal justice because of how these policies represent a microcosm of wider structural social problems. All the bleak horror of capitalism in a nutshell. This election season, we have been invited to gaze into that nutshell and decide if we want to do anything about it or if we want to brutalise poor people instead.

Dumping untold thousands of people into prison is much easier than solving any of our social problems, but it won’t work. Future generations deserve better than this.