Limiting the Rush to Punish - Rethinking Crime and Punishment

Politics and Punitiveness – Limiting the Rush to Punish
Kim Workman
Executive Director
Rethinking Crime and Punishment
A paper presented at the Australian & New Zealand Association of Psychiatry,
Psychology and Law (ANZAPPL New Zealand) and The Royal Australian & New
Zealand College of Psychiatrists (Faculty of Forensic Psychiatry) Conference “The
Rising Punitiveness”, 17 – 19 November 2011 Wellington , New Zealand.
When Dr Mark Earthrowl invited me to speak I accepted with some trepidation, for I
have neither medical nor criminological qualifications. This is the second time I have
spoken at the same conference as Professor John Pratt on this issue, and given that
he is an international authority on penal populism, 1 it’s a daunting prospect. The
rate of change in penological thinking is mutually incoherent and bewildering. How I
wish I could provide you with a theoretical framework, and close with three points
which if followed would lead us out of the current confusion.
I have instead, chosen to tell stories, and to provide an archaeological foundation
which helps to explain why we have become a nation second only to the United
States in the developed world, in our penchant for punitiveness. Secondly, I will
focus on the last sixty years, and track the changes in culture which have shaped
attitudes to punishment. I will consider the opportunities, barriers and strategies
that will enable us to move away from imprisonment as the preferred option for
offenders, toward an appreciation of crime policy as part of a broader social
development strategy that seeks to encourage unity and social cohesion.
Part 1: Setting the Ground
John Pratt makes the first important point, i.e., that New Zealand has historically
been demonstrably punitive and intolerant in our reaction to criminal behaviour,
1 John Pratt, Penal Populism, (Abingdon, Oxon: Routledge, 2007).

with imprisonment rates that have consistently been higher than other comparable
countries. As outlined by Pratt: 2
Amongst the few acknowledgements that there have been of this other New
Zealand characteristic, Laing et al (1933: 50) complained that ‘New Zealand
has on the whole very little serious crime. 3 Its prisons, nonetheless, are
always full to overflowing and there is daily on an average, a prison
population more than three times as great, in proportion to the general
population, as that of England and Wales.’ In 1933, the Howard League
stated that ‘on a general population basis, New Zealand should have had in
the year 1931-2, compared with Queensland less than 450 daily prisoners;
compared with South Australia less than 1000; and compared with New South
Wales and Victoria, less than 1200; while the number that she actually did
have was over 1600’ (quoted in Burdon 1965: 311). 4 The Department of
Justice (1954: 3) noted that ‘in relation to population, we have 50% more
people in our prisons daily than they have in England and Wales.’ 5
From the mid to the latter part of the 19 th Century we were, according to Fairburn,
an ‘atomized’ society, characterised by a high number of single, transient men, and
high levels of drunkenness and interpersonal violence. Vagrancy was the third
highest crime in the 1870’s. 6 Drunkenness made up a third of convictions in the
1870’s. 7 Even up to the 1960’s drunkenness and breaches of the liquor laws
constituted 20% of all convictions. 8 Drunkenness tailed off in the early part of the
20 th Century, and with the impact of increased social solidarity and homogeneity one
would have expected a drop in the crime rate. However, the combination of very
high policing levels, and a high rate of prosecutions for petty crime and drunkenness,
led in turn to a rate of imprisonment that was excessive.
2
John Pratt, “The Dark Side of Paradise. Explaining New Zealand’s history of high imprisonment,”
British Journal of Criminology 46 (2006), 541-560.
3
R. M. Laing, F. de la Mare, and B. Baughan, “The Penal System of New Zealand,” Howard Journal of
Penology and Crime Prevention 3, no. 4 (1933), 48-54.
4
R. Burdon, The New Dominion (Wellington: A.H. and A.W. Reed, 1965).
5
Department of Justice, A Penal Policy for New Zealand. (Wellington: Government Printer, 1954).
6
M. Fairburn, The Ideal Society and its Enemies (Auckland: Auckland University Press, 1989).
7
Supra, 248
8
Department of Justice, Crime in New Zealand (Wellington: Government Printer, 1968).
2

A distinguishing feature of New Zealand culture is that we imprison more people for
minor offences. In 1930, it was reported that ‘34% of the total number of persons
committed to prison were serving terms of less than one month, 58% for terms of
less than three months and 73% … sentenced to imprisonment were for terms of less
than six months. 9 The proportion of serious crime was however, relatively small.
Even today, seventy percent of all offenders in prison will be released within seven
months. 10
Why are we so punitive?
Why have we historically been, and continue to be more punitive than other
comparative countries? John Pratt 11 in his article “The Dark Side of Paradise” argues
9 Report of the Under Secretary of Prisons (Wellington: AJHR H20, 1930).
10 Ministry of Justice, (Wellington, 2011). Personal communication.
11 John Pratt, “The Dark Side of Paradise. Explaining New Zealand’s history of high imprisonment,”
British Journal of Criminology 46 (2006), 541-560.
3

that our “rush to punish” has much to do with the way in which predominant
cultural values have evolved in New Zealand. 12
Pratt argues that the friendliness and egalitarianism that was very much a feature of
early New Zealand society and culture also included other characteristics such as
social cohesion, homogeneity, security and conformity, and which cumulatively were
instrumental in New Zealand regularly being described as a ‘paradise.’ Friendliness
and the punitiveness are two sides of the same coin - natural products of an
homogeneous society striving to maintain its own perfection, and vigilant against the
dangers which it thinks threaten it.
Pratt points out that the desire to defend paradise led to a marked intolerance for
those who threatened its social cohesion. Hence the ferocious anti-vagrancy and
prostitution legislation that was passed in the 1870s. Our treatment of
conscientious objectors was much more punitive and harsh than other
commonwealth countries. Just as the strong central state was there to bolster
stability and security, so it was also there to police morals and conduct fervently.
Homogeneity was hallowed, diversity was discouraged. Outsiders were not welcome
– dissent was frowned on – and paradise had to be preserved at all costs.
Māori and Māori Crime
Māori did not feature to any great degree in these early statistics in the 19 th century
– Europeans made up the bulk of prisoners. In 1872, Māori constituted only 2.3
percent of the prisoners received; by 1902, 2.8 percent; 1912, 3.1 percent; by 1934,
8.9 percent. 13 For much of the 19 th century and well into the 20 th , Māori had been
praised by residential Magistrates for their conduct; but as Māori society began to
12 ‘Cultural Values’ refers to ‘all those conceptions and values, categories and distinctions, frameworks
of ideas and systems of belief which human beings use to construe their world and render it orderly
and meaningful. It thus covers the whole range of mental phenomena, high and low, elaborated and
unarticulated, so that philosophies, sciences and theologies are included alongside traditional
cosmologies, folk prejudices and ‘plain common sense.’
13 Statistics of New Zealand 1872, 1902, 1912. See also: F. Lingard, Prison Labour in New Zealand
(Wellington: Government Printer 1936), 55.
4

disintegrate the system increasingly mopped up those who had least, and were
deemed a public nuisance — Māori “lads” were sent off to borstal “in their own
interests” because they were judged to have come from bad surroundings – a
practice since taken over by youth justice institutions. 14 Prison sucked up all types of
offenders from the lower strata of society: the habituals, drunks, vagrants, the
mentally ill, and so on. Prison provided social benefits: it hid them from view; it
allowed politicians and the courts to maintain public credibility; it assuaged public
indignation at the idea of people being “let off”. But “out of sight, out of mind” is
incapacitation personified. In addition, the recidivist nature of these low-level
offenders guaranteed the long term maintenance of the prison estate.
If I were to look for a theorist to describe the 19 th century and the early part of the
20 th , it would have to be Michael Foucault, who argued that the punishment system
was developed for the purposes of ensuring effective control and regulation of the
lives of the populace by the State – despite what it might profess to the contrary. 15
The Criminalisation of Māori Resistance
Against a background of a gradual increase in Māori offending, due to the process of
assimilation, there were according to Bull, four important episodes in the history of
Māori “crime”: the mid-1860’s, 1881, 1897 and 1911. 16
a) The 1860’s: the Waikato War, Pai Marire, and the criminalization of rebellion
b) 1879 – 1881: Parihaka
c) 1890’s: the Dog Tax laws of 1989, and Parihaka revisited
d) 1911: The beginning of the trend toward increasing Māori imprisonment.
Characteristic of the period 1860 – 1900 was Māori resistance to land
encroachment, Māori challenge to Crown sovereignty, which led to passive
resistance and in some cases to aggressive confrontation. In turn this led to the
14
John Pratt, Punishment in a Perfect Society – The New Zealand Penal System 1840-1939
(Wellington: Victoria University Press, 1992), 245
15
Michael Foucault, Discipline and Punish (London: Allen Lane, 1977).
16
Simone Bull, ‘The Land of Murder, Cannabilism, and all kinds of Atrocious Crimes: Maori and Crime
in New Zealand 1853 – 1919’ British Journal of Criminology 44 (2004), 496-519.
5

imprisonment of Māori men, women and children, deportation to the Chatham
Islands, suspension of the right of fair trial, threats of the death penalty, and
confiscation of land. Prisoners were not recorded in the official statistics, and many
were imprisoned illegally. Political protestors who fenced their land in protest were
jailed indefinitely.
The Dog Tax Law of 1898 was the first attempt to directly tax the country’s dog
owners. It was resented by Māori and non-Maori alike; but in the light of the events
of previous 30 years, was seen as an oppressive symbol of Pakeha dominance. 17
How Māori resistance to state encroachment of basic human rights became defined
as “Māori” crime can be described in more than one way. 18 Bull suggests that Vold’s
group-conflict theory provides a useful theoretical backdrop to describe the
criminalization of Māori independence. 19 The theory holds that a considerable
amount of crime is intimately related to the conflict of groups constantly competing
against one another in order to maintain or improve their place in society. One
forum for conflict is the state’s legislature; those who oppose new and oppressive
laws are more likely to violate them, if they defend interests and purposes that are in
conflict with their own. 20 It is true that Māori were increasingly arrested and
imprisoned as they came into conflict with legislation that had been passed in the
interests of colonizers.
It is also true that the unequal distribution of power is causally related to crime.
Modern Marxist theory goes one step further, and focuses on the “harmfulness of
the behaviours of the ruling class in their pursuit of economic self-interest”. At its
worst, the state can behave in a soulless way, simply to demonstrate its pre-eminent
power. Undoubtedly the most spectacular demonization of Māori resistance was
17 R. S. Hill, “The Colonial Frontier Tamed, New Zealand Police in Transition, 1867 – 1886” in The
History of Policing in New Zealand, Vol. 2 (Wellington: GP Books and the Historical Branch,
Department of Internal Affairs, 1989).
18 S. Bull, 498
19 G.B. Vold, T.J. Bernard, and J.B. Snipes, Theoretical Criminology. 5 th Ed. (New York: Oxford
University Press, 2002).
20 G.B. Vold, Ibid., 229-30
6

the 1916 raid on Rua Kenana’s Wairua Tapu movement at Maungapohatu, in which
the gathered faith community was depicted as criminal by government officials. 21
The recent Tuhoe raids, and the treatment of Tuhoe women and children serve as a
modern parallel.
In terms of a rate per 100,000, the number of charges against Māori increased from
15 in 1906, to 35 in 1921, a 130% increase in 15 years.
Part 2: Post-War Developments
Inside Outsiders – the Impact of Māori Urbanisation
John Pratt’s view of how New Zealander’s have responded historically to outsiders,
took me back to my early policing days – the late 1950’s and early sixties. I
witnessed the impact of Māori urbanisation and the steady flow of Māori families
into the cities from the 1950’s onwards. The Māori population changed from being
80% rural in 1940, to some 80% urban by 1986. 22 An urban drift was experienced
worldwide due to changing labour demands, but for Māori it was compounded by
the loss of land and status. It was an inextricable drift, painful to witness. Māori
whanau slipped through the inadequate caring networks provided by the state –
they were strangers in the new world, disconnected from the old.
Sir Taihakurei Durie, (a former Justice of the High Court) describes the urbanization
of Māori in this way:
They shifted from extended to nuclear families (government pepper-
potting prevented Māori aggregations), from support networks to
relative isolation, from family bonds to bonds with disaffected others,
from a secure place in a community to a place that could be hostile to
brown faces, from a place where one was a leader to a place where one
worked for `the boss', from a place where community values were
21 J. Binney, G. Chaplin and C. Wallace, The Prophet Rua Kenana and his Community at
Maungapohatu, (Wellington: Oxford University Press, 1979)
22 Ian Pool, Te iwi Māori (Auckland: Auckland University Press, 1991), 123, 154, 182, 197
7

internalised to a place where all sanctions came from outside and were
enforced by police. 23
Empirical evidence suggests that Māori offending can be linked to both economic
disadvantage, as well as the ongoing effects of the colonial process. Māori
psychiatrist Sir Mason Durie refers to the complex interaction between historical
identity factors and socioeconomic profiles and offending. He states that “while
incarceration is the most visible form of imprisonment, an equally pernicious type of
imprisonment is to be found in lifestyles from which there is no escape.” 24 Durie
identifies loss of access to Te Ao Māori 25 , through loss of land, language and tikanga
as the historical processes that have framed modern Māori identity. 26
Prior to the 1950’s, Māori offending occurred at a similar rate to non-Māori.
Between 1954 and 1958, Māori youth offending rose by 50%. 27 It occurs to me that
one of the factors that caused an increase in crime related not to how Māori
behaved in this strange and new urban world — it had as much to do with how they
were treated by non-Māori. John Pratt describes a mindset, which if applied to
Māori urban migrants, would see them perceived as a threat to uniformity and
homogeneity, and treated as a potentially dangerous underclass.
As Pratt points out, “The very qualities that brought stability and social cohesion also
brought about a crushing conformity, enforced by intense levels of formal and
informal social control and fear of appearing different, a fear of not belonging to and
fear of being rejected by a tightly drawn homogeneous community.” 28
23
Hon Eddie Taihakurei Durie, “The Study of Maori Offending,” A paper presented to the NZ Parole
Board Conference, 23 July 2007
24
M. Durie Nga Tai Matatu: Tides of Maori Endurance (Melbourne: Oxford University Press, 2005) 62.
25 The Maori world
26 Ibid., ch. 4.
27 J.K.Hunn J K Report on Department of Māori Affairs: With statistical supplement
(Wellington: Government Printer, 1961) 64.
28 Pratt, 10
8

Neo-liberalism, the Market Society and the Growth of Penal Populism
By the early 1980s, New Zealand’s economic and social characteristics were no
longer sustainable: government debt was bringing the country into serious economic
crisis. 6 After 1984, a massive social and economic restructuring was engineered by
successive Labour and National governments pursuing a neo-liberal reform program.
Almost overnight, New Zealand moved from being one of the most regulated to one
of the most deregulated Western democracies.
It has since become a much more heterogeneous and pluralistic society. Earlier
values have had to compete with a range of new ones. Individualism competed with
collectivism, meritocracy with egalitarianism, choice with uniformity, indulgence
with frugality. Claims for wide ranging ethnic rights by Māori disrupted the
prevailing view that New Zealand’s race relations were second to none. The price for
plurality was a permanent degree of disjunction and social divergence, resulting in a
coalescence of populist forces around crime and punishment issues, and the rise of
penal populism. It manifested in a number of different ways.
Scottish criminologist David Garland argues that at this point the politics and policies
of welfarism were overtaken by a combination of free-market liberalism and social
conservatism. 29 While neo-liberalism maximized economic freedom, promoted anti-
union legislation, deregulation, privatization, and the reduction of welfare benefits,
the concurrent resurgence of neo-conservatism promoted tighter controls on social
order. Crime was no longer an indicator of deprivation and need; its primary
function was to signal indiscipline and inadequate controls. Offenders were no
longer seen as the product of social influence or psychological inadequacy but as
rational calculators who could be priced out of criminal activity through the
manipulation of disincentives. Crime was treated as a problem out of control, which
could only be dealt with by resort to measures of incapacitation, “three strikes” laws,
29 D. Garland, The Culture of Control: Crime and Social Order in Contemporary Society (Oxford: Oxford
University Press, 2001) 75
9

indeterminate sentencing, and the transfer of judicial discretion to the police and
parliament.
Garland also talks about schizoid criminology, in which he distinguishes between the
“criminology of the self” and the “criminology of the other”. 30 The criminology of
the self is predicated on the idea of a rational, calculating offender; the criminology
of the other portrays the criminal as “the threatening outcast, the fearsome
stranger, the excluded and the embittered”. Put simply, we construct responses to
crime on the basis that offenders are like ourselves; rational thinking beings, capable
of determining the consequences of our actions and making decisions on that basis.
Anyone who fails to behave in that manner is clearly a deviant who deserves the
greatest possible punishment. This belief system has the great political advantage of
excluding any possibility that the offender may be disadvantaged, poorly socialized,
or marginalised as a result of the government’s social and economic policies –
remedial action of that kind is conveniently ruled out.
The solution therefore lay in the imposition of more controls, and a ‘zero tolerance’
approach to offending. It manifested itself in a number of ways.
Tough on Crime – Tough on the Causes of Crime
One of the most visible indications was the “tough on crime” slogan – but New
Zealand did not invent it. Social democratic and left-leaning political parties
worldwide promised to be tough on law and order, in order to out-flank the right
wing. Bill Clinton came up with the slogan in 1992 and again in 1996 when he won
the United States presidency. Bob Carr used it in New South Wales in 1995, during
the state election. Tony Blair and New Labour repeated it in 1997, and the New
Zealand Labour Party did the same in 2002 and 2005.
Political slogans of this kind can tell us no more than how those in power seek to
represent, and sell their policies. Interestingly, close analysis of policy documents
30 Garland, 137
10

eveal very little commitment to addressing the causes of crime, in contrast to
significant investment in control and punishment. The National Party in this year’s
election, still talks about being tough on crime, but makes no mention of what it will
do with the causes. Commitment to the Drivers of Crime Strategy, aimed at
addressing the causes of crime, may wilt post-election.
Tough on Crime – Tough on Criminals
Being ‘tough on crime’ soon took on another dimension. If it was OK to be tough on
crime it was also OK to be tough on criminals. When three prisoners severely beaten
by a large number of prison officers at Hawkes Bay Prison subsequently sought
compensation, the case was referred to by the Minister of Justice, as an “alleged
assault”, and the victims were publicly labelled as a “bunch of scum bags”. 31 In 2005,
the Prisoners and Victims Claims Bill became another expression of state
vindictiveness. It was prompted by public consternation and outrage toward a case
where six prisoners were awarded relatively modest damages for ill-treatment by
the prison authorities (over a period of years in one case).
The Prisoners' and Victims' Claims Act was introduced to prevent future claims for
monetary compensation by prisoners for breaches of the Bill of Rights. The
legislation made it clear that seeking compensation was to be a last resort measure,
and that if compensation was granted, the prisoner would not be entitled to it.
Instead, it would be paid into a fund, which could be accessed by the victims of
crime, for payment of their expenses.
In explaining the legislation, the Justice Minister emphatically rejected the notion
that anyone “pays their debt to society” while in jail: “it costs us $NZ50000 a year to
keep someone in prison … that is a cost to society, not the repayment of a debt …
you don’t repay your debt to the victim by being in prison”. 32
31 “Lawyer finds anti-torture action hollow,” NZ Herald, 19 Oct 2000.
32 The Dominion Post, 8 January 2005, E3
11

Going to prison was no longer enough punishment; punishment could continue
following the release of offenders from prison. Offenders, by reason of their status,
were no longer entitled to be treated with respect or decency; nor were they to have
the same rights as other citizens who were victims of brutality or violence.
Part Three: 1989 – 2009: The Changing Penal System
“Where the liberating dynamic of late modernity emphasised freedom,
openness, mobility, and tolerance, the reactionary culture of the end of the
century stresses control, closure, confinement and condemnation.”
David Garland
Implicit in the political messages is that there are two classes of citizens in New
Zealand; those who offend, and those who stay within the law. For those who
offend, punishment may well continue beyond the prison wall, and abusive and
violent treatment may well be condoned within it. It is not surprising that during this
period there were two major inquiries into the treatment of prisoners; the
behavioural management regime at Paremoremo, and the ‘Goon Squad’ incident at
Christchurch Prison.
Most commentators agree that over the last two decades, the modern penal system
has undergone rapid and significant change. 33 34 35 36 As sentencing law and practice
gave greater priority to retributive, incapacitative and deterrent aims, prison
personnel responded by behaving differently. Prisons became more punitive, and
more security-minded. Prisoners became less eligible for such privileges as release
to work and family visits, and more likely to be described in official reports as
culpable, deserving of punishment and sometimes dangerous. They were no longer
clients in need of support, but risks to be carefully managed. Instead of emphasizing
33 P. O’Malley, ‘Volatile and Contradictory Punishment’, Theoretical Criminology 3 (1999), 175 – 96.
34
J. Pratt, “Emotive and Ostentatious Punishment: Its Decline and Resurgence in Modern Society’,
Punishment and Society, 2/4 (2000), 417-39
35
J. Pratt, Punishment and Civilization: Penal Tolerance and Intolerance in Modern Society (London:
Sage, 2002).
36
D. Garland, Culture of Control: Crime and Social Order in Contemporary Society, (Oxford: Clarendon
Press, 2001).
12

ehabilitative methods that met offender’s needs, the system emphasizes effective
controls that minimized costs and maximized security. Prisoners became objects
rather than subjects. Probation represented itself increasingly as ensuring compliant
behaviour in the community, rather than the provision of social accountability and
support. Close monitoring of released offenders became the priority, which
inevitably leads to more frequent return of offenders to custody.
Garland and others have argued that in recent years the forms, functions and
significance of punishment in modern society reach well beyond its ability to “reduce
reoffending” or “preserve public safety”. The way we run prisons, and the values
that underlie their management, communicate meaning about the nation’s attitude
to power, authority, legitimacy, normalcy, morality, personhood, and social
relations. 37 38 Garland argues that part of the function of the prison is “the pursuit of
values such as justice, tolerance, decency, humanity and civility” and that these
things should be “intrinsic and constitutive aspects of its role” rather than a diversion
from its “real” goals or an inhibition on its capacity to be “effective”. The role of the
prison is both moral and symbolic.. Garland suggests that the social and economic
determinants of “the outside world” affect the conduct of penal agents (police
officers, judges, prison officials, etc) but they do so indirectly, through the gradual
reshaping of the rules of thought and action in a field that has relative autonomy.
The restructuring of the public sector in the 1980’s facilitated the political formation
of a more conservative political regime. There had been growing opposition to
policies that appear to benefit the “undeserving poor,” increased cynicism about
welfare, and growing support for more aggressive controls for an underclass that is
perceived to be disorderly, drug-prone, violent and dangerous. There was more
emphasis on responding to public clamour than upon the expertise of criminal
justice professionals and empirical research.
37 D. Garland Punishment and Modern Society, (Oxford: Clarendon Press, 1990) 252.
38 Michael Ignatieff, A Just Measure of Pain: The Penitentiary in the Industrial Revolution 1750 – 1850,
(London: Macmillan, 1978).
13

According to Workman (2008b), 39 during this period the wider criminal justice
system was facing rising prison muster levels, strained resources, and the loss of
public confidence. The Department of Corrections responded by emulating reform
patterns found in other areas of public administration. The development of offender
management systems, provided for a greater measure of central planning and
control. The management of offenders was to become characterized not by
commitment to relationships, but rather as a technical process, best governed by
expert knowledge, and implemented by public servants.
The 2002 legislation confirmed a range of measures which extended prisoners’
sentences and restricted parole. To accommodate this increasing population, the
Government invested close to one billion dollars constructing four new prisons and
increasing capacity on existing sites.
The rate of imprisonment in New Zealand grew from 91 per 100,000 population in
1987 to 200 per 100,000 in 2010, in the face of a stable crime rate. Probation was
represented as punishment in the community, not as a social work alternative to
conviction. Its priority became the close monitoring of released offenders, which
led to the more frequent return of offenders to custody. Imprisonment became
more punitive, and more security-minded. Prisoners became less eligible for such
privileges as release to work and family visits, and more likely to be described in
official reports as culpable, deserving of punishment and sometimes dangerous.
They are no longer clients in need of support, but risks to be carefully managed.
Instead of emphasizing rehabilitative methods that met offender’s needs, the
system emphasizes effective controls that minimize costs and maximize security.
Prisoners have become objects rather than subjects.
It has also affected the way we talk about offenders. The sympathy evoked by
political rhetoric centres exclusively on the victims and the fearful public, rather
than the offender.
39 Kim Workman, “The Future of Restorative Justice,” a paper presented to the Annual Conference of
Restorative Justice Aotearoa, at Hamilton, September 2008.
14

The Minister of Corrections was staunch in her defence of the new regime.
We want to introduce double bunking to our prisons to ensure we don’t have
to keep dangerous prisoners in police vans as the last government did. Yet we
face opposition from people who are concerned that prisoners will not enjoy
sharing a cell. (Collins, 2009a) 40
Minister of Corrections, Hon Judith Collins
Within days of the Minister’s comment a prisoner, who had been repeatedly
raped in a double bunked cell, hanged himself. Seriously traumatized by the
rapes, he had unsuccessfully sought ACC funded counselling for sexual abuse. The
prospect of his offender returning to Christchurch Prison was sufficient to cause
him to take his life.
The Political Exploitation of Victims’ Rights
Probably the most influential social movement internationally advocating for the
increased punishment of offenders, has been the takeover of the victim’s rights
movement by the law and order lobby. 41 The movement developed two prongs: one
focused on victim rights, the other on victim support. 42 As far back as 1990, Elias
claimed that the US victim rights movement lost its status as a social movement, so
completely had it been taken over by right-wing political forces. 43 Ten years later,
Crawford commented that the UK victim rights movement had so successfully
40 th
Hon Judith Collins, Address to the Sensible Sentencing Trust, 19 September 2009.
41
Heather Strang, Repair or Revenge: Victims and Restorative Justice, (New York: Oxford University
Press, 2002)
42
A. Frank and M. Fuentes, “Ten theses on social movements” in World Development Volume 17,
Issue 2, February 1989, Pages 179-191;
43
R. Elias, The Politics of Victimization: Victims, Victimology and Human Rights (New York: Oxford
University Press, 1986)
15

secured a place at the centre of government policy that other victims groups such as
Victim Support and Rape Crisis had been marginalised. 44
In its early American development, the victim movement drew inspiration from the
civil rights movement, and was inspired by progressive, humanitarian ideals. 45
However, its success in improving the treatment of defendants in the criminal justice
system was perceived as further disadvantaging the interests of victims. Those on
the political right portrayed these developments as moves in a zero-sum equation
where any protection of offender’s rights assumed a diminution in the rights of the
victim. 46 Reeves and Mulley described how political campaigners for tough
sentencing co-opted statements made by individual victims of crime or a particular
class of victims, e.g., the families of murder victims, as if they represented the views
of “all” crime victims. Both then and now, victim’s views on sentencing are as varied
as those of any other cross-section of the general public. 47
Strang comments that “just as the racist vengeance of ethnic division can be
captured and magnified by power-hungry leaders, the vengeance of crime victims
has sometimes been captured by politicians with their own retributive agendas.” 48
The fundamental basis of the power of the worldwide victim rights movement flows
from the public and political perception that these are “good people” who have
suffered at the hands of “bad” people. That view renders the cause politically
irresistible, but it also works to support a narrow punitive focus. In the USA it argued
successfully for increased use of the death penalty; in New Zealand the ACT Party
and the Sensible Sentencing Trust successfully introduced three strikes legislation.
44 A. Crawford, ‘Salient Themes Towards a Victim Perspective and the Limitations of Restorative
Justice: Some Concluding Comments, in A. Crawford and J. Goodey (eds) Integrating a Victim
Perspective within Criminal Justice (Aldereshot: Ashgate, 2000).
45 E. Viano, ‘Victims’ Rights and the Constitution’, Crime and Delinquency 33 (1987), 438- 451.
46 R. Elias, supra
47 H. Reeves and K. Mulley, “The New Status of Victims in the UK: Opportunities and Threats” in A.
Crawford and J. Goodey, eds. Integrating a Victim Perspective within Criminal Justice (Aldershot:
Ashgate, 2000).
48 H. Strang, p.27
16

The Sensible Sentencing Trust (SST) takes this delineation further, by making it clear
who it will not support. SST supports about 100 or so victims of serious crime. But it
will not support people who have committed crime, or who are members of crime
families. However, it will support a citizen who chases, stabs, and kills a graffiti
artist, or shoots and kills an intruder – such people are re-classified as victims. A
Mongrel Mob whanau whose child is shot in a drive by does not, however, qualify for
support. It is a neat delineation, which on the basis of the known demographics
limits its potential clients to a handful every year.
The Influence of the Sensible Sentencing Trust – or the World according to Garth
Bartlett’s analysis of the SST, its attributes, and methodology demonstrates how it
was highly effective in drawing policy making influence away from the “liberals”
responsible for the deterioration of New Zealand society, a situation in which all New
Zealanders are portrayed as victims or potential victims. 49 The SST’s mission is:
To obtain a large base of community support, and ensure safety for all New
Zealanders from violent and criminal offending, through education,
development of effective penal policies, and the promotion of responsible
behaviour, accountable parenting, and respect for each other at all levels of
society.
The Sensible Sentencing Trust’s objectives focus on what is believed to be the
‘sensible’ sentencing of offenders: sentences which would involve the harsh
treatment of “violent offenders,” a category of offenders whose crimes include
graffiti, car conversion, sexual offences, rape and murder. 50 The goals set out by the
Trust include:
the requirement of life in prison to “mean life” for all violent offenders;
49 Tess Bartlett, The Power of Penal Populism: Public Influences on Penal and Sentencing Policy from
1999 to 2008. A thesis submitted in fulfilment of an MA degree. School of Social and Cultural Studies,
University of Victoria (Wellington: June, 2009).
50 G. McVicar, “Message from Garth McVicar,” *Newsletter], No. 6 (2002), p. 1. Retrieved 18 Dec,
2008, from http://www.safenz.org.nz/Newsletters/newssix.htm
17

the enactment of legislation which ensures that parole is only granted to
offenders in exceptional circumstances;
the assurance that serious violent offenders receive maximum penalties;
the assurance that victims of violent crime and their families have more of an
input into court proceedings; the allowance of juries to recommend
sentencing to judges;
the promotion of cumulative sentences for repeat offenders 51
In a bid to gain penal power, SST uses a variety of grassroots initiatives to promote
their ideas: it distributes newsletters and media releases, makes contributions on
talkback radio, and holds public meetings and conferences. 52 Ippolito and Walker
note that if groups are able to move citizens to “write individual, rational letters to
government officeholders in large numbers,” they are likely to be effective.
Grassroots lobbying allows the Trust to apply strong public pressure on governments
in the hope that “such a show of strength from the people will convince the decision
makers to act in accordance with [their] preferences.”
This supposed assurance of safety has managed to draw a wide net of support for
the Trust, especially from elderly members of society. 53 The formation of the SST in
2000 has since given the public a significant voice in penal policymaking – at least
articulated through the Trust’s spokespeople. This has seen it become an attractive
source for the media; no in-depth research is needed to generate the “screaming
headlines” to help sell newspapers. Because of the Trust’s eagerness to approach
the mass media to gain attention for its cause, it has become a common source of
“expert” opinion, despite its own denunciation of expert knowledge. In effect, the
Trust and its spokespeople have become new kinds of experts, whose knowledge is
based not on formal learning and research, but on anecdote, common sense and
51
Sensible Sentencing Trust, Goals, vision statement and mission (2008), Para 26. Retrieved 2 Dec,
2008, from http://www.safenz.org.nz/goals.htm
52
G. McVicar (2002), “Let the ‘Hard Yards’ Begin,” *Newsletter] No. 8, p. 1. Retrieved 24 Feb, 2009,
from http://www.safenz.org.nz/Newsletters/newseight.htm
53
G. McVicar (2007), Speech delivered at Victoria University of Wellington.
18

newspaper headlines: a form of expertise that suits the newsmaking requirements of
the contemporary media.
McVicar paints himself as the “ordinary” citizen who does not get heard. Instead,
the views of the Trust are used increasingly for “expert” advice on criminal justice
issues. In contrast, criminal justice professionals and elites who are highly
knowledgeable in this area are overlooked as they do not offer populist attitudes.
Sensible Sentencing - Advocacy Strategies
The Sensible Sentencing Trust employs a series of strategies to advocate for victims’
rights and the harsh treatment of offenders.
Challenging power elites
The Trust actively opposes persons of influence whose sentiments do not agree with
its own views; Judges, senior public servants, and so on. Its spokespeople claim that
“we do not need academics, criminologists or psychologists to tell us the simple
truth that if you reward bad behaviour you will get more of it!” The Trust has
criticised judges who, in one instance, awarded prisoners compensation for an abuse
of human rights while in prison.
The use of the victim
Rather than drawing on evidence-based research and analysis, the SST uses personal
accounts of human suffering as evidence that legislative changes are needed. Using
accounts such as these is a way for the Trust to illustrate that “ordinary” citizens are
suffering due to the government’s lack of policy action.
The use of victims to evoke sympathy is a technique used worldwide by
organisations hoping to gain public awareness and support. 54 However, unlike
organisations which use, for example, the disaster victim or the victimisation of
54 L. Henderson, “The wrongs of victim's rights,” in E. Fattah, ed., Towards a critical victimology (pp.
100192). (London: MacMillan, 1992). Stanford Law Review, Vol. 37, No. 4, Apr., 1985,
19

women to generate public support, the Trust uses the murder victim to further
attract feelings of anger and revulsion at criminals and those power elites who have
allowed their obsession with the wellbeing of criminals to override any concern for
their victims – or the safety of innocent members of society.
The rhetoric used above in which the “victims’ needs are neglected,” while those of
the offender are favoured, runs throughout the Trust’s newsletters and publicly
available information. The comparison also demonstrates how victims and offenders
have been typified using a “good guy … bad guy” theme. 55 Common assumptions
about crime victims – that they are all ‘outraged’ and want revenge and harsher law
enforcement – have come to underpin victims’ rights rhetoric. 56 For example, the
SST and the press frequently note the ‘anger’ and ‘outrage’ victims and supporters of
the Trust feel towards government and the criminal justice system. 57 Apart from the
fact that no quantification is ever given to their supposed public sentiments
(something that, again, McVicar is never challenged on by journalists), anger and its
manifestations are indeed normal responses to violent crime, but they are not
necessarily tied to the desire or need to retaliate. 58 Thus, victims may experience
anger as their initial impulse, but after the initial shock has passed, victims’ emotions
and reactions may vary considerably “from physical retaliation to withdrawal, to
efforts to prevent future harms, to forgiveness of the offender.” 59 The Trust chooses
to bypass the fact that many victims are remarkably forgiving – a contradiction that
goes completely unnoticed by the New Zealand media. Instead, anger towards
offenders is a common reaction held by supporters of the Trust.
55 D. Claster, Bad guys and good guys: Moral polarization and crime (Westport, CT: Greenwood Press,
1992).
56 L. Henderson, 102.
57 R. Berry, “Victims must be told of prisoners' compo.” The New Zealand Herald (16 Dec 2004).
Retrieved 16 Dec, 2008.
58 Henderson, 128
59 Fattah, E. “Victims and victimology: The facts and the rhetoric”, in E. Fattah, ed., Towards a critical
victimology. (London: MacMillan, 1992), 2956 49
20

A simplified framework of knowledge
The Sensible Sentencing Trust lobbies for harsh sentencing policies uses a framework
of knowledgethat is not robust enough to meet the standards of psychological and
scholarly professionals. The Trust’s “common sense” arguments have become a
main source of information. As Fattah notes “pressure groups, by nature and by
choice, lack the neutrality and impartiality necessary for sound, objective
scholarship.” 60 The SST uses simplified arguments to put forward its policies, offering
little by way of ‘objective scholarship’. In these respects, it typifies victims of crime,
failing to acknowledge the complex relationship that exists between offender and
victim. In doing so, the Trust ignores the fact that for most victims, particularly
victims of violent and sexual crimes, the offender is an acquaintance whom they
know, and not an ‘evil’ predator roaming the street. 61
Violent Crims vs Upright Citizens
It is in this context that the joint sponsorship by ACT, National, and Labour of the
2010 Sensible Sentencing Trust Conference, “Violent Crims versus Upright Citizens”
needs to be understood. It happened at a time when the Justice and Electoral Select
Committee was managing a consultation process in advance of introducing victims’
rights legislation.
In her speech to the Conference, Minister Judith Collins proposed that those who
chose to work with offenders, implicitly condoned their criminal activity, or had an
investment in the status quo:
“We face opposition from people who put the rights of criminals before the
safety of the police and public. There are people out there who would rather
look out for the country’s burglars, thieves, rapists and killers than those who
put their lives on the line to uphold the law”.
60 Fattah, E. (1992b). Victims and victimology: The facts and the rhetoric. In E. Fattah (Ed.), Towards a
critical victimology (pp. 2956). London: The MacMillan Press Ltd.49
61 R. Elias, The politics of victimization: Victims, victimology and human rights, (Oxford: Oxford
University Press, 1986).
21

She went on to say:
“those who promote this ‘strange morality’ can be counted on to speak out in
opposition whenever reforms are made to the justice system so it better
serves victims rather than offenders.”
Given that the speech was delivered to a group of seriously violated and traumatised
victims, the tactic turns from being simply a political gambit, to one that represents
an effort to convince victims that they have enemies “out there” who have no
interest in their well being.
The idea that every time you acknowledge the human rights of offenders and
observe due process in their treatment you take something of value away from
victims, is fundamentally flawed and exists in a moral vacuum.
Workman responded a month later, in a speech to the Victim Support Conference:
If there is one message I want to get across this morning, it is that we must
actively resist this idea that you are either for offenders, or for victims. We
must reject any proposition that potentially divides us. Some of us deal with
offenders, some with victims, and many work with both. To rate one activity
above the other is unhelpful and counter-productive for those of us working
with victims, it is a small step from taking an anti-offender stance, to
conveying those feelings to victims. The first calls for justice from victims may
in fact be calls for vengeance or punishment. Such feelings are legitimate, but
giving them immediate satisfaction may not further the healing process. . 62
Tony Paine, CEO of Victim Support, an organisation which meets the needs of around
70,000 victims annually, puts it this way:
It is very easy to talk about victims and offenders as if they were two quite
separate groups (both demographically and morally). Of course the world is
62 Kim Workman, Address to ‘Manaaki Tangata’ Victim Support Conference, 16 – 18 October 2009
22

not that black and white. The New Zealand Crime and Safety Survey 63 tells us
that 50% of all victimizations are experienced by only 6% of New Zealanders
and that the social and demographic indicators that identify those who are
most likely to be victimized are identical to the markers for those likely to be
offenders. The life stories and cultural contexts that weave victims and
offenders together (often within the same person) make any artificial
separation between offenders and victims just that: an artifice that
oversimplifies our complex world. 64
Proposals that advocate people working together to reduce harm, do not suit a
political agenda which has as its purpose, to instil fear and division. Miroslav Volf, a
Croatian theologian who experienced the deep divisiveness of crime during the
Croatian-Serbian conflict, [and is now a chaired professor at Yale University] arrived
at a somewhat disturbing place:
From a distance, the world may appear neatly divided into guilty perpetrators
and innocent victims. The closer we get, however, the more the line between
guilty and innocent blurs and we see an intractable maze of small and large
hatreds, dishonesties, manipulations, and brutalities, each reinforcing the
other. … Intertwined through the wrongdoing committed and suffered, the
victim and violator are bound in the tragic and self-perpetuating solidarity of
sin. 65
Eugenics Revisited
The above factors have served to resurrect ideas which sustained the eugenics
movement, prominent in New Zealand in the first half of the last century. In the
broadest terms, eugenics was about:
a) the labeling and defining of the ‘unfit’
63
P. Mayhew and J. Reilly, The New Zealand Crime and Safety Survey 2006. Ministry of Justice,
(Wellington, New Zealand, 2007), 46.
64
Tony Paine, “Victim Support, Victims’ Rights: an agenda for prevention” an address delivered at
Addressing the underlying causes of offending; What is the evidence? - Thursday 26 and Friday 27
February, Institute of Policy Studies, Victoria University
65
Miroslav Volf, 1996, Exclusion and Embrace (Nashville: Abingdon, 1996) 81-82.
23

) the elimination/exclusion of the unfit;
c) the enhancement of the fit.
In his 1903 publication The Fertility of the Unfit, Chapple argued that the declining
birth rate of the “better classes” in comparison to the prolific breeding conduct of
our worst citizens, who inherited criminal tendencies, called for sterilization of the
“born criminal.” 66
The idea of the born criminal and genetic unfitness was revived in the Minister of
Corrections’ speech at the 2009 Sensible Sentencing Trust conference:
Some of these prisoners are simply born bad, and nothing anyone can do will
prevent them forging a career in crime and spending much of their lives
behind bars. 67
Hon Judith Collins
Earlier that year, columnist Michael Laws, took the eugenics argument to a whole
new level. In a column headed, “Child abuse symptom of human race evolving into
them and us”. 68 He made the following statements:
... Being born to an underclass family, especially if you are Māori, increases
the risk of child abuse and child murder by an exponential degree. … Again we
will hear excuses and blame-shifting from the liberal apologists the Kiros,
Bradfords and Trotters all of whom will deny that the problem is specifically
amongst a group who are devolving themselves from the human race. But the
truth is that British evolutionary biologist Oliver Curry is right. Humankind is
evolving along two distinct tracks and that genetic gap is growing with each
child born … humankind is indeed diverging and dividing. … it is evolving as
quickly and dramatically as climate change. And that it is no longer
compressed or conformed by any social order, be it derived from the law or
66 W. Chapple, Fertility of the Unfit (Wellington: Whitcombe and Tombs, 1903) 118.
67 Hon Judith Collins, Address to launch of Prisoner Skills and Employment Strategy, Auckland Region
Women's Corrections Facility, Manukau City, 7 October 2009.
68 Michael Laws, “Child abuse symptom of human race evolving into them and us”, Sunday Star Times,
4 Jan 2009
24

eligion... Those of us who have lived half a century or more already accept
this thesis.
Michael Laws closes by referring to Oliver Curry as “the true prophet of 2008”. By
way of clarification, Curry, is actually a political economist, not a biologist. The
article he wrote in 2006 and referred to by Laws, was featured in the tabloid Sun
under the heading, “All men will have big willies.” It has since been refuted as bad
science.
Michael Law’s article recalled ideas that were foundational to the formation of Nazi
Germany’s crime policy, between 1933 and 1938, in which the underclass were
referred to in this way: “There is a fearful chaos of wild, uninhibited passions,
nameless destructiveness, ... all that bear a human face are not equal. Woe to him
who forgets it.”
Laws’ identification of Māori as “genetically unfit” is not new in our history, as Dr
Sherryl Smith notes:
Indigenous Peoples are not written directly into the history of eugenics. In
much of the literature there is an absence of any mention of Indigenous
Peoples, or there are occasional side references. However Indigenous Peoples
were clearly part of the ‘unfit’ during the last 500 years of colonising.
Colonisation was in itself an assertion of eugenics, in that power was
asserted over ‘unfit’ populations. … [I]ndigeneity has been cast historically as
an ‘unfit’ category, either by colonisers, by states, by traders, by missionaries,
by educators, by courts and many other configurations of dominant and
subordinate groups. It is also clear that state policies did result in
extermination, sterilisation and segregation of Indigenous peoples through
history but these policies and actions were rarely named ‘eugenics’. Rather
they have either been invisibilised within official histories or more recently
25

they are being written about more recently under the broad heading of
colonisation. 69
And further:
Others, including New Zealand and Australian writers, have been clear that
eugenics is not just about the genetically unfit but also the socially unfit. The
groups most commonly targeted have been the poor, immigrants, physically
and mentally disabled, ethnic groupings, Indigenous, women, children, gay,
lesbian, transgender and others. Each of these groups has produced
extensive literature about how they have been defined as unfit and the
marginalisation that has occurred as a consequence. 70
Dr Paul Reynolds, a Māori analyst of biotechnologies, has critiqued eugenics more
broadly as it is located culturally within a Western scientific paradigm: 71
Put simply, eugenics is any measure that has an aim of ‘eliminating difference
/ abnormality,’ has an aim of ‘standardising,’ and/or aims to ‘improve’
something. In each one of these areas a subjective judgement is made by
someone(s) to determine what is ‘different,’ ‘abnormal,’ ‘standard,’ or needs
‘improvement.’
Part Four: The Last Three Years: Period 2009 – 2011:
The last three years have seen a range of responses to the issues of punitiveness and
penality. Firstly, there has been a government-led increase in criminal justice
legislation, aimed to increase the extent to which offenders and prisoners are
punished. Secondly, there has been a concerted effort both to increase the level of
punitiveness within the prison system, and at the same time increase prison-based
rehabilitation, and state controlled prisoner reintegration. Thirdly, state
commitment to welfare and support is increasingly characterized by measures which
69 Sherryl Smith, “The Eugenics Report,” unpublished draft report, 2011.2
70 Ibid.
71 Smith, 13
26

control and punish, rather than support, families and whanau of poverty, and those
who live within marginalized communities.
Increased Punitiveness in Legislation
The period 2009 – 2011 was characterized by the introduction of “get tough”
legislation, or pre-election promises to introduce “get tough” measures, which either
increased sentence length for offenders, impacted on their basic human rights, set
them apart as a class of people distinguishable from victims, or led to a deterioration
in the conditions of custodial care. Legislative and administrative measures were
introduced which:
(a) Address the fictional imbalance between offender’s rights and victim’s rights;
e.g. introduction of the Victim’s Rights Bill (concerning Victim Impact
statements) 72 , and the Prisoners and Victims Compensation Claims Bill 73 ;
(b) Increase the length of sentences for prisoners, or make it more difficult for
74 75
them to be released, or granted bail;
(c) Reduce access to legal aid; 76
(d) Reduce ACC funding for victims of sexual abuse (subsequently reversed); 77
(e) Breach offender’s basic human rights 78
72 Victims of Crime Reform Bill 2011.
http://www.legislation.govt.nz/bill/government/2011/0319/latest/DLM3942608.html
73 Prisoners' and Victims' Claims (Redirecting Prisoner Compensation) Amendment Bill.
http://www.legislation.govt.nz/bill/government/2011/0328/latest/DLM4021103.html?search=ts_bill_
prisoners'+and+victims'+claims_resel&p=1
74 Sentencing and Parole Reform Act 2010.
http://legislation.govt.nz/act/public/2010/0033/latest/DLM1845314.html
NZ Herald “Government Plans to Tighten Bail Laws,” 27 October 2011
http://www.nzherald.co.nz/news/article.cfm?c_id=1503012&objectid=10761968&ref=imthis
NZ Herald “Collins Talks Tough on Detaining Sex Offenders”
http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10764514
75 John Key, “Law and Order Policy puts Victims First,” 4 November 2011
http://www.johnkey.co.nz/archives/1334-Law-and-order-policy-puts-victims-first.html
76 Legal Assistance (Sustainability) Amendment Bill 2011http://www.parliament.nz/en-
NZ/PB/Legislation/Bills/BillsDigests/4/d/5/49PLLawBD19171-Legal-Assistance-Sustainability-
Amendment-Bill-2011.htm
77 “Mental Health Foundation, “Welcome Decision to reverse cut in ACC funding to sexual abuse
victims” http://www.mentalhealth.org.nz/page/771-2010-media-releases+reversal-of-acc-fundingcuts-for-sexual-abuse-victims-welcome-news-says-foundation
78 Electoral (Disqualification of Convicted Prisoners) Amendment Act
http://www.legislation.govt.nz/bill/member/2010/0117/latest/whole.html
27

(f) Relax internal control measures around the provision of medical services,
prisoner strip searching, and the use of mechanical restraints (Corrections
Amendment Bill). 79
Increased Punitiveness in Correctional Practice
There was also evidence of increased punitiveness in correctional practice. Prisoner
lockdowns increased, with staff and prisoners reporting routine lockdowns in both
remand and sentence facilities for 20 – 22 hours a day. The department’s actuarial
risk assessment tools were recalibrated, and there was a significant reduction in the
number or prisoners permitted to work on community projects outside the prison,
or be eligible for release to work. The proportion of prisoners allocated to double
bunk cells was increased, and the use of refurbished containers to accommodate
prisoners increased.
Tough on Criminals – Tough on Communities of Crime
Māori are being imprisoned at a rate six times that of non-Māori; and that
punishment quickly extends to their whanau and communities. For Māori males
born in 1975, it is estimated that 22 percent had a Corrections managed sentence
before their 20th birthday, and 44 percent had a Corrections managed sentence by
the age of 35. 80 81 The rush to punish has taken us into a situation of Māori mass
imprisonment.
Mass Imprisonment
“Mass imprisonment” describes a situation where imprisonment rates are far higher
than the comparative and historical norm, and fall disproportionately on particular
(often racial) groups, so that the effects cease to be explicable in terms of individual
offending and involve whole communities. In this situation,
See also: Note: 77: Sentencing and parole Reform Act 2010, Note: 77 Civil Orders for Sex Offenders.
79 Corrections Amendment Bill 2011 http://www.corrections.govt.nz/policy-andlegislation/regulatory-impact-statments/corrections-amendment-bill-2011.html
80 For Māori males born in 1975, it is estimated that 22 percent had a Corrections managed sentence
before their 20th birthday, and 44 percent had a Corrections managed sentence by the age of 35.
81 Ministry of Justice: Personal communication, 5 May 2011
28

Imprisonment becomes part of the socialization process. Every family, every
householder, every individual in these neighbourhoods has direct personal
knowledge of the prison – through a spouse, a child, a parent, a neighbour, a
friend. Imprisonment ceases to be a fate of a few criminal individuals and
becomes a shaping institution for whole sectors of the population. 82
Rose and Clear 83 found that there may be a “tipping point” in certain communities so
that crime increased once incarceration reached a certain level. They argue that,
high rates of imprisonment break down the social and family bonds that
guide individuals away from crime, remove adults who would otherwise
nurture children, deprive communities of income, reduce future income
potential, and engender a deep resentment toward the legal system. As a
result, as communities become less capable of managing social order through
family or social groups, crime rates go up. 84
Punishing Communities of Crime
Punishment, however, is not confined to prisons. The communities from most
offenders come have experienced a reduction in primary health care services;
increased evictions from and ineligibility for, social housing; 85 increased levels of
unemployment; 86 a decline in the level of welfare support; 87 the introduction of
“workfare;” 88 and increased pressure to “behave” without any commensurate
82 D. Garland, ed, Mass Imprisonment: Social Causes and Consequences. London: Sage, 2001).
83
D.R. Rose and T.R. Clear, ‘Incarceration, Social Capital, and Crime: Implications for Social
Disorganization Theory’ Criminology 36: 3 (1998), p. 457
84
D. Stemen Reconsidering Incarceration: New Directions for Reducing Crime (New York: Vera
Institute of Justice, 2007)
85
NZ Herald, “Politicians feel heat over housing project,” 10 Nov 2011.
http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10764993t
86
NZPA, “Labour Hammers Govt over Unemployment Rate,” 5 February 2010
http://www.guide2.co.nz/politics/news/labour-hammers-govt-over-shocking039-unemploymentrate/11/13981
87
Welfare Working Group Executive Summary,
http://img.scoop.co.nz/media/pdfs/1102/WWGFinalRecommendations22February2011.pdf
88
NZ Herald, “Drive to Stem Generations of Welfare Dependency,” 10 August 2011
http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10664895
29

provision of support. 89 In addition, reviews are planned into the way government
responds to child abuse and neglect, 90 and there is also talk of a review into the
administration of the youth justice system. In both cases, the indications are for
“tougher” measures to be taken. There is a growing professional concern that
changes to both systems could lead to a reduction in effectiveness.
What Is Happening?
It is not possible to account for all the policy misfiring, ambiguities and
contradictions which abound in the world of criminal justice, given the absence of a
cohesive and long range criminal justice strategy. On the surface it would seem that
there is some divergence between the increased in punitiveness, and a renewed
interest in therapeutic intervention.
Loic Waquant argues that the hegemony of neoliberal “security-think” hides the fact
that contemporary societies have three main strategies to treat those conditions and
conducts that are deemed undesirable, threatening, or offensive. 91 The first consists
in socializing them, that is, acting at the level of collective structures and
mechanisms that produce and reproduce them – e.g. urban housing renewal,
subsidized housing, stable and secure employment, adequate health services. This
path involves the state in reasserting responsibility and rebuilding the capacities of
the state to deal with increasing poverty and marginalization.
The second is medicalisation – i.e. to consider that a person is committing crime
because of alcohol dependency, or mental illness, and then apply a medical remedy
to a problem on the basis that it is an individual pathology able to be treated by
health professionals. The process of medicalisation can be driven by new evidence
89 (1) NZ Herald: “Housing NZ drops Mob eviction bid,” 1 Sep 2011
http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10748731
NZ Herald, “State Housing Ban for Bad Tenants,” 6 November 2011
http://www.stuff.co.nz/sunday-news/news/5916012/State-house-ban-for-bad-tenants
90 The Green Paper on Vulnerable Children. http://www.childrensactionplan.govt.nz/
91 Lioc Waquant, Punishing the Poor – The Neoliberal Government of Social Insecurity (London: Duke
University Press, 2009) xxi-xxii
30

or theories about conditions, or by developments in social attitudes or economic
considerations, or by the development of new purported treatments. Once a
condition is classed as medical, a medical model of disability tends to be used rather
than a social model.
The third state strategy is penalization: under this scenario it is not a matter of
removing social obstruction or treating individual pathology. The person is instead
labelled as an offender and treated as such. The offender ceases to exist as a citizen
at the point of incarceration, and becomes the recipient of a high level of
punitiveness. Penalisation serves as a technique for the invisibilisation of social
reality. These three strategies occur in any number of combinations, with
medicalisation often serving as a conduit to criminalization at the bottom of the class
structure. In Waquant’s words, “the prison operates as a judicial garbage disposal
into which the human refuse of the market society are thrown.” 92
The current situation in New Zealand lends itself to Waquant’s analysis. Changes in
the levels of social support to marginalized communities and the increased
penalization of the social welfare system, have and will contribute to increased
vulnerability in marginalized communities. In New Zealand, however, the growing
belief in the efficacy of individualised therapeutic intervention, has led to the
proliferation of prison-based treatment, grossly out of proportion to that available
within the within the community. There is a real possibility that more offenders will
be sentenced to prison, in the knowledge that medical treatment available to them
in prison is not available to them in the community. In addition, sentencing
offenders to prison enables the state to transfer its responsibility for the lack of
social development strategies from itself to individual offenders, who are imprisoned
for failing to take responsibility for their actions.
On the Issue of Medicalisation
Increase in Therapeutic Treatment of Prisoners and Community Engagement
92 Supra
31

Garland parallels the decline of penal welfarism with the demise of the rehabilitative
ideal. That may be true elsewhere, but it is not true of New Zealand. Certainly, over
the last decade since the Department of Corrections has invested heavily in the
development of a suite of rehabilitative interventions, primarily based on cognitive
behavioural therapy. Cognitive behavioural therapy, involving techniques such as
cognitive restructuring and social skills training, remains the “treatment of choice” in
the correctional setting.
The last three years has seen a significant investment in drug and alcohol programs,
increasing the number of drug treatment units from five to nine in the last three
years, and enabling up to 1000 prisoners a year to receive treatment. Mental Health
assessments for all prisoners are planned (but not budgeted for) from mid-2012. 93
In the lower half of the North Island there are around 140 residential drug and
alcohol places within the prison, and about 20 places in the community. The whole
thing is out of balance.
It is of growing concern that in the development of its rehabilitative regime, the
department has contributed to the marginalization of offenders, and done so in two
ways. Firstly, the shift in the Department’s clinical resource from direct engagement
in offender treatment to the development of actuarial techniques of risk assessment
and incapacitation has expanded significantly the definition of who is dangerous, and
therefore unfit. 94 Secondly, the department has targeted its scarce resources to
those who are high risk, responsive to treatment, and serving more than two years in
prison. Low-level, recidivist offenders are not treated. The growing perception is
that they are not treated because they are untreatable and therefore ‘unfit’.
Without adequate state intervention and support, that group is destined to become
part of a growing underclass that the state then feels free to punish.
93 (1) Hon Judith Collins, “Minister opens ninth prison drug treatment programme,”
http://www.beehive.govt.nz/release/minister-opens-ninth-prison-drug-treatment-unit
(2) Radio NZ, “Mental Health Checks for all prisoners,”
pdfwww.radionz.co.nz/news/national/90275/mental-health-screening-for-all-new-inmates.
94 R. van Swaaningen, Critical Criminology: Visions from Europe (London: Sage, 1997), 183
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Before concluding, I want to make one more comment on the role of Rehabilitation
in prisons. I know of no other prison system in the world where clinical
psychologists and behavioural psychology has so dominated, particularly where
cognitive behavioural therapy is the treatment of choice. As a layman I keep asking
myself, “is there anything else that works?” That dominance, I believe, has led to an
unhealthy environment in our prison system. Firstly, it has seen the demise of other
professions, and the absence of competing ideologies. Social workers are a thing of
the past, criminologists, sociologists and anthropologists are notably absent. I recall
the late Henry Laing, Secretary of the Treasury, insisting that for every three
economists, he would employ a sociologist, or anthropologist, or political scientist,
to maintain balance. That balance is missing.
Also missing is a robust socially construction around offender rehabilitation and
reintegration. Until very recently, prisoner reintegration was based on the principles
of risk, needs, responsivity, and addressing criminogenic needs. Interventions like
whanau ora, are predicated on working with collectives, with whanau, with
communities, and require a whole different paradigm. We need different and
mutually enriching paradigms, and it doesn’t seem to be happening.
Part Five: Strategies for Survival
Popular punitiveness may be a key feature of contemporary penal politics but it is
not the whole story. There is a very pro-active movement within the Department of
Corrections, firstly in the development of a more community centred approach to
community probation, and secondly, in the development of community partnership
in prisoner reintegration. Both developments are underpinned by an increasing
awareness of the role, not only of service providers, but also of willing volunteers.
In conclusion, we should consider those strategies and responses that can mitigate,
or at least defer, the “rush to punish.” The strategies that might create change in
the future, include:
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Introducing New Interventions
New approaches to prisoner rehabilitation can introduce powerful rivals to more
punitive orthodoxies. Restorative justice can revive rehabilitative tendencies under a
new guise. As Zedner comments:
Where rehabilitation renders the offender the subject of a psycho-social
intervention, restorative justices sets the offender as the author of his own
readmission to civil society. Entirely in accordance with the emphasis on
personal responsibility and individual rationality so central to neo-liberal
philosophy, restorative justice may plausibly be seen as an attempt to revive
rehabilitation for a new political era. 95
Another promising intervention, therapeutic jurisprudence focuses on the law's
distinct impact on emotional life and psychological well-being. It recognizes that the
law itself may function as a therapeutic agent. Using the insights of the social
sciences and embracing a multidisciplinary approach, it examines the effects of rules
of law, legal procedure and the specific roles of legal actors, including counsel and
judges, on the psychological well-being of persons affected by the law. 96
Other interventions of promise include faith-based and cultural interventions,
strengths-based approaches to prisoner rehabilitation, and models of intervention,
which include a strong values base or are based on moral thinking.
Promoting a Public Criminology
We need criminologists to write and conduct studies in a way that engages the
crime/ justice consumer publics (both those who make crime policy and those who
are affected by it). This entails talking to, talking with, and talking about those
95
Lucia Zedner, “Dangers of Dystopia in Penal Theory,” Oxford Journal of Legal Studies 22, No. 2
(2002), 341-366 at 356.
96
B.J. Winick and D.B. Wexler Judging in a Therapeutic Key Therapeutic Jurisprudence and the Courts
(Durham, NC: Carolina Academic Press, 2003).
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publics in the production of criminological scholarship. Public criminologists situate
their work in the so-called real world, and they orient their productivity to the way in
which the “the real world” needs it in order to be able to use it. 97 Social scientists
bring valuable resources to crime and justice policy: honesty about the evidence and
a more thorough understanding of the complexity of the problem. Honesty and
knowledge are, after all, essential elements for an improved public policy regarding
crime. 98
There is a clear link between public knowledge and public attitudes. In general the
least informed members of the public tend to be the most judgemental. Public legal
and criminological education is an important part of any change strategy. Public
attitudes to the sentencing of offenders become less punitive when people are
provided with good information about alternatives to imprisonment, and the full
range of options and strategies. If we can create a better-informed public opinion, it
may have some effect in encouraging politicians to abandon the punitive approach
that has been a central feature of government policies over recent years.
The Rethinking Crime and Punishment website is the vehicle through which the
Robson Hanan Trust informs citizens, the mass media, practitioners, policy-makers
and politicians alike about what works in reducing crime. In the process we hope to
highlight the flaws in quick and dirty research or “off the cuff” responses to new
situations. We do this by emphasizing the value of high quality research and
evaluation, using the best possible methods.
Crime and justice policy should be characterized by a pragmatic, empirical,
humanistic concern to conduct and put to use research that can make the criminal
justice system and prisons effective and decent. If we can make research and expert
opinion available on a wide range of topics through the website, we will encourage
wider debate about what we New Zealanders have to do to create an effective
criminal justice system.
97
Christopher Uggen and Michelle Inderbitzin. ‘Public Criminologies,’ Criminology & Public Policy 9,
No. 4 (2010), 725 - 749.
98
Ian Loader and Richard Sparks, Public Criminology? (New York: Routledge, 2010).
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Pursuing a Human Rights Agenda for Victims and Prisoners
We must do what we can to ensure that the basic rights and protections afforded by
the modern state are not carelessly disregarded. We must seek to address the
growth of police powers, the hyperactive expansion of criminal offences, the spread
of summary justice, and the bypassing of criminal justice protections and democratic
processes. It is only through these processes that we can defend the traditions of
criminal justice in a democratic state.
Develop intermediary mechanisms of advice.
The Independent Advisory Group on Youth Justice, comprising experts on youth
offending and child conduct disorders, was formed to provide independent advice to
sector Ministers on issues of youth offending. A parallel group should be established
to provide advice to relevant Ministers on the broader criminal justice system. Such
mechanisms introduce rational thinking into the development of criminal justice
policy, and sentencing policy; these have a role in developing greater public
consensus on issues of importance, as well as facilitating constructive community
dialogue about criminal justice issues.
Promote a Bi-partisan Approach to Policy Formation
Debate about prison reform should not deteriorate into a right vs. left, liberal vs
conservative, or victim vs. offender paradigm. Issues related to prisoners, victims
and communities are too complex and too important to be dealt with by a simplistic
analysis based on personal preference or prejudice, and selective research.
Conduct a Substantive Review of Criminal Justice Policy
There has not been a substantive review of penal policy in New Zealand for nearly
30 years. Until that happens, questions about its legitimacy and purpose will
continue to be the subject of conflict and conjecture. In 2007, Ombudsman Mel
Smith’s call for such a review went unheeded;
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I accept that the political message, like the practices and processes that the
administration is putting into place, can be seen as containing some degree of
internal contradiction. ‘Protecting the public’ is ‘staying tough’ and suggests
penal populism. ‘Rehabilitating offenders’ is ‘being smarter’ and hints at soft
liberalism.
Nevertheless, these apparently contradictory targets can be achieved. I have
pointed out that there is a need for balance and it seems to me that one way to
assess the range and the depths of the attitudes advanced, as I have
foreshadowed, is to establish a Commission of experienced and appropriately
qualified people to investigate not only the operations of the entire criminal
justice system, but to put forward explicitly the philosophies and values which
should guide its policies and practices into the future. 99
Long Term Strategy
The long-term is more problematic. Ideally, the aims of criminal policy should be
defined so that they accord with the aims of general social policy. That would
include introducing cost-benefit analysis into criminal political thinking. It would
mean making choices between different strategies and means, and an assessment of
the probable policy effects and costs – in the widest possible sense, including also
non-material costs for offenders and victims. Criminal justice policy should be seen
as an inseparable part of general social development policy.
Kim Workman
Executive Director
Rethinking Crime and Punishment
www.rethinking.org.nz
director@rethinking.org.nz
99 Report of Mel Smith, Ombudsman, following a reference by the Prime Minister under Section 13 (5)
of the Ombudsman Act 1975, for an investigation into issues involving the criminal justice sector.
(2007) 136.
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