Human Rights and Prisons - Rethinking Crime and Punishment

2. The Cultural and Legal Context
Reflecting on the cultural framework of punishment is vital to an
understanding of human rights and prison issues. Here, New Zealand has
shown glimmers of a liberal approach (seen, for example, in how New
Zealand engages in restorative practices with a range of different offenders)
however the dominant response to the problem of „crime‟ has been one of
penal populism.
Professor John Pratt (2007, 2008) has charted the rise of the current punitive
approach to offenders and punishment in New Zealand. Among other
aspects, his work has built on the ideas that economic restructuring and
depleted welfare provisions, the lack of egalitarianism and declining trust in
criminal justice „experts‟ have all led to more punitive and exclusionary
attitudes to those who break the law. Penal populism can be identified in
approaches that: overemphasise or distort crime and punishment in media
reporting; make political capital out of law and order; build new policy on the
basis of ad hoc, albeit concerning, cases of victimisation; exclude or „monster‟
offenders; or, harden responses to offenders so much so that imprisonment
appears as the only option.
In New Zealand, these approaches may be observed at many levels.
Numerous examples may be found of fearful accounts of prisoner escapes,
perceived „unjust‟ early releases, prisoners continuing to offend within prison,
and so on. These accounts, that overwhelmingly cast prisoners as continually
threatening the „rest of us‟, perpetuate notions of exclusion. At the same time,
commentators regularly question the conditions under which prisoners are
kept – emphasising that prisoners enjoy „hotel conditions‟ or that prisoners
should not have access to heating or televisions. The public discourse about
„crime‟ and offending behaviour has resulted in a rather skewed public sense
of what constitutes the „crime problem‟. Public awareness studies in New
Zealand have shown that the public has an inaccurate and negative view of
crime rates, including the general belief that the crime rate is rising rapidly and
that a high percentage of crime involves violence (see Paulin et al, 2003).
Public commentators and campaigners can also approach rights as a finite
resource – proposing that if offenders have rights, then victims do not; or, that
if victims‟ rights are to be secured, then offenders must forfeit their rights (see
Jenkins, nd). These ideas have also been picked up by politicians. For
example, in response to the Taunoa decision that certain prisoners were not
treated with humanity or respect and should be compensated, then Minister
Phil Goff stated that he found the case to be „personally offensive‟ (Dye and
NZPA, 2004). This case, in which prisoners attempted to assert their rights
faced serious political opposition and, ultimately, led to the implementation of
the Prisoners‟ and Victims‟ Claims Act 2005 that restricts access to
compensation for prisoners who have been harmed in prison. Within this
approach, of course, is a distancing from the fact that offenders and prisoners
can also be victims.
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