If restorative justice were taken seriously by the criminal justice system and applied more broadly, it could potentially reduce New Zealand's reliance on incarceration, writes Te Herenga Waka—Victoria University of Wellington's Sarah Roth Shank.
New Zealand is often heralded as a world leader in holistic, innovative justice practices. Restorative elements of the family group conference garnered international interest and inspired intentional use of restorative justice at the pre-sentence phase of adult criminal proceedings.
Given these initiatives, one may be surprised to learn of the dichotomy in New Zealand, which also features one of the highest rates of incarceration in the western world. Seemingly innovative policies stand in contrast with the reality of the criminal justice system.
This article aims to present the current tensions in the New Zealand criminal justice system and in doing so provides the backdrop to consider a restorative reorientation of the justice system.
The penal context
In light of a ballooning prison population, Justice Minister Andrew Little has said “New Zealand needs to completely change the way criminal justice works”.
New Zealand incarcerates nearly 206 people per 100,000 of the population, compared with the average of 147 per 100,000 in the Organisation for Economic Cooperation and Development. At this rate, the prison population is expected to increase to more than 12,000 by 2026, well above previous projections and requiring we build a new prison every five years to keep up with demand.
A prison population of roughly 10,000 in a country of 4.9 million people is significant on its own. Such a figure is even more sobering when it means an estimated 20,000 children currently have a parent in prison. This does not bode well for future prison trajectories, as children with a parent in prison are themselves 10 times more likely to end up incarcerated than those without a parent in prison.
While the social costs of New Zealand’s high incarceration rate are significant, the fiscal costs add to its impact. The average cost of incarcerating an individual is roughly $100,000 a year and the operating fees of prisons overall have doubled since 2007.
Moreover, the impact on Māori in the system “is a crisis and in need of urgent attention” (He Waka Roimata/Transforming Our Criminal Justice System, the first report of Te Uepū Hāpai i te Ora/the Safe and Effective Justice Advisory Group, 2019).
Māori make up 51 percent of the male prison population and 63 percent of the female prison population, while comprising only 16 percent of the general population. Incarcerated at a rate of 660 per 100,000 of the general population, Māori are the second highest incarcerated race in the western world. Notably, if Māori were imprisoned at the same rate as non-Māori the prison population would reduce by 44 percent.
Call for change
Acknowledging these realities, in 2017 the current Government committed to reducing the prison population by 30 percent over the following 15 years. Little launched Hāpaitia te Oranga Tangata/the Safe and Effective Justice reform programme in 2018 and created Te Uepū, an independent advisory group charged with eliciting public feedback and reporting recommendations for improving the criminal justice system to the Minister.
Emerging from this work is a sentiment, spanning various interest groups and political preferences, that the current system is not working.
Specifically, New Zealanders are calling for a system that better reflects their values; Māori want to lead solutions for Māori; victims need better support; prevention and rehabilitation initiatives require more attention; community and whānau need to be empowered; and finally the whole system needs urgent transformation (Hāpaitia te Oranga Tangata, 2019).
Consideration of a restorative system
It is in this context New Zealand must now reconsider the function and philosophy of its criminal justice system.
Restorative justice has been included formally in the system since 2002, although at a very specific place in procedure. This model consists of bringing together the responsible party—the offender—and harmed party—the victim—after pre-conferencing with both parties in a facilitated dialogue that addresses the impact of the harm done and identifies possible repair outcomes.
Legislation requires that participation in restorative justice be considered at pre-sentence, and restorative justice outcomes be considered at sentencing, although it is not always pursued.
A restorative approach would broaden its application beyond victim–offender conferencing at the pre-sentence stage.
A broader approach includes applying restorative principles at every point along the justice pipeline: principles of acknowledging wrongdoing, engaging all those impacted by crime—including whānau of both the responsible and harmed parties—and focusing on the needs and obligations resulting from harm; proactive measures aimed at minimising harm; and honouring the dignity and mana of all involved.
Some related diversion initiatives are emerging in the justice sector. The Turning of the Tide strategy and iwi justice panels are New Zealand Police initiatives that give police discretion in considering alternative ways of addressing crime. While both programmes could serve offenders of any demographic, a main goal is to minimise incarceration of Māori.
Like pre-sentence restorative justice conferencing, these initiatives are contained to a single point in the justice process and, to occur, rely heavily on key gatekeepers like police or judicial officials. A restorative approach would fundamentally change the underlying goals and principles of the system from punitive towards a more holistic and reparative direction.
In New Zealand, for instance, if a goal of Hāpaitia te Oranga Tangata is to improve the function of the justice system, addressing the restorative question of ‘what can be done to make things as right as possible?’ at first touch, or even before harm occurs, could theoretically lead to a deeper understanding of the impact of harm and prevent future recurrence.
History has shown a political system is unlikely to change with the same forces that built it. Thus, if the government is to achieve the reform it desires, it may need to avoid tinkering around the edges and consider reorienting its justice compass in a new direction.
Expert recommendations indicate a shift is needed towards an alternative, preventative model, which “requires a broad multi-sector approach that engages other community, cultural and social sector services”(Prime Minister’s Chief Science Advisor Sir Peter Gluckman, 2018).
A multi-layered approach is consistent with other responses to mass incarceration in today’s socio-political climate. Criminologist Professor Katherine Beckett claims western societies heavily reliant on punitive justice measures are not only following trends of mass incarceration but are in themselves becoming the “carceral state”: institutions and systems that stigmatise poor people and minority groups by the expanding reach of the state through violence and perpetuating social inequality.
At its core, restorative justice appears to address the perpetuating cycle of individual and state violence by responding to the impacts of harm and seeking to improve upon the limitations of the western legal system.
Ultimately, restorative justice was not developed as an alternative to prison nor primarily to reduce incarceration. On its own, more restorative conferencing would only ever be a weak contributor to reversing prison figures.
However, if restorative justice were to be taken seriously by the criminal justice system and applied more broadly across the justice pipeline, it could potentially reduce the reliance on incarceration.
Thus, a by-product to further institutionalisation of restorative justice may mean that, as Judge FWM McElrea and barrister Jonathan Eaton observed in a 2003 New Zealand Law Society publication, the “nature of prisons would change significantly”.
The political window of opportunity has cracked open. Now may be the moment to reverse the trajectory of the carceral state.
Considering wider application of restorative options could meet the needs of those directly touched by the tentacles of the criminal justice system and provide a more holistic approach to righting wrongs within the community – bringing the reality of New Zealand justice practices in line with what much of the world already assumed was true.
Sarah Roth Shank is a restorative justice researcher, trainer and practitioner. She is a PhD candidate at the Diana Unwin Chair in Restorative Justice in the School of Government at Te Herenga Waka—Victoria University of Wellington.
This is an edited version of an article that first appeared in Women Talking Politics, a research magazine of the New Zealand Political Studies Association.
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