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New report casts spotlight on ‘irredeemably racist’ criminal justice system

24 Nov 2023

| Author: Reweti Kohere

Treat alcohol and drug abuse and addiction as a public health issue. Remove benefit fraud prosecutions from the criminal jurisdictions. Overhaul the legal aid system and invest more in community law centres. Improve access and resourcing to therapy in prisons and increase Pacific service providers working in criminal justice.

More fundamentally, the current criminal justice system (CJS) is “systemically dysfunctional, irredeemably racist, and exhausted beyond its limits”. It must be rejected and replaced with alternative systems built on community, belonging, relationships and collective responsibility and accountability.

These are just some of the possible changes that Pacific people who have experienced New Zealand’s criminal justice system (CJS) recommend in a new report, as researchers advocate for more urgent and comprehensive transformation.

Pacific Peoples and the Criminal Justice System in Aotearoa New Zealand: Past, Present and Future is a two-part research project involving an all-Pacific team led by legal scholar Litia Tuiburelevu. The project received more than $250,000 of funding from the Michael and Suzanne Borrin Foundation.

With a focus on Pacific research methodologies and values emphasising communal relationships, reciprocity and holism, the first report analyses the existing research on Pacific peoples and the justice system. Part two then outlines responses to research questions by “knowledge-holders” – Pacific people who have interacted with the justice system, not just as offenders but as survivors, family members ad legal professionals – and how their perspectives may inform transformative change.

 

Urgent and comprehensive

Described as short to medium-term possibilities for change, the recommendations make up the most dominant ideas presented by the researchers’ knowledge-holders and include:

  • assessing how current liquor licensing laws impact neighbourhoods most populated by Pacific peoples and ensure that any interventions are done with, and by, the affected communities as part of addressing alcohol abuse and addiction as a public health issue;
  • increasing people’s awareness of alternative justice schemes, especially those available for Pacific peoples;
  • mandating court rehearsals for new entrants into the justice system and adopting a “flat” courtroom hierarchy where parties sit on the same level;
  • expanding support measures and investing in culturally appropriate services for survivors to address “the radiating trauma” of being involved in the justice system;
  • extending visitation rights to prisoners and making phone calls free and readily available;
  • increasing transparency of the system by giving independent researchers and journalists access to prisons for reporting purposes on the principle of open justice; and
  • funding therapeutic interventions within communities to address urgent mental health needs, especially for adult Pacific men. Longer-term, the researchers point to existing research that informs their vision of “dismantling the justice system’s mono-legal foundations”, chief among them He Whaipaanga Hou, the seminal work of the late Māori scholar Moana Jackson (Ngāti Porou and Ngāti Kahungunu), and Matike Mai Aotearoa, which advocates for constitutional transformation.

Broadly, the works cited recommend urgently and comprehensively transforming the criminal justice system; rejecting the liberal reformist ideology of making tweaks; affirming tino rangatiratanga and redistributing power from “the current Crown monopoly”; creating a restorative, rehabilitative justice system rather than something adversarial and punitive; abolishing all prisons by 2040 through strategies to progressively reduce prisoner numbers; and reimagining public safety, accountability and punishment through a framework of abolition.

The starting point for transformative change is confronting the drivers of harm, which precede the entry of Pacific peoples into the justice system, the researchers say. This requires prioritising investment in therapeutic responses to address urgent health, education and wellbeing needs in the community, as well as targeted injections into improving the material conditions of the most socio-econmically marginalised people.

“Safe housing is transformative justice. Liveable incomes are transformative justice. Anti-racism is transformative justice. Mutual aid is transformative justice. Education is transformative justice. Quality and affordable healthcare is transformative justice and so on and so,” they say.

 

‘Rather unhappy tale’

Pacific peoples make up just over 8% of all criminal justice proceedings, 9% of sentences and 11% of the prison population. Proportionate to their total population size, Pacific peoples are marginally overrepresented, with the most dominant offences being road violations and low-level assaults. Pacific men under 25 comprise the majority of Pacific peoples’ offenders. Most police proceedings occur in Auckland, concentrated in Counties Manukau where two-thirds of Pacific peoples live.

Most of the 52 knowledge-holders, who shared their experiences through “talanoa”, or mutual exchanges of personal stories, ideas and thinking, were Polynesian (Samoan/Tongan), under 40, and based in Auckland. While their views helped the researchers understand Pacific peoples’ relationship to the criminal justice system, particularly the “problem” of Pacific offending and their overrepresentation, broader engagement is needed to paint a fuller picture, the researchers say.

Nevertheless, the knowledge-holders’ stories describe “a rather unhappy tale” about Pacific peoples’ engagement with the justice system. Offenders said they were often the first in their family to interact with the system, with their most serious offending generally happening in their twenties. Interactions with the police were “overwhelmingly negative” and didn’t improve when dealing with “the ‘brown cops’ who were often described as being “equally bad, if not worse, than the rest”. The court system was “confusing”, “isolating” and “exhausting”.

The stigma of shame also pervades many of their and their families’ experiences. One offender said that, growing up, children never answered their parents back. “They think it’s shameful to talk about whatever’s going on. And they never talked to us about anything so we just thought ‘oh look, we assume that they don’t talk about those things’, we shouldn’t talk about those things…it’s a sign of weakness,” he said. “Undoing it was pretty hard.”

 

Giving back

Of the four family members related to current or former offenders, one said when a child went through the system, “your whole world falls apart”, while another said that trying to stop their child from going to jail meant “that’s our mental wellbeing gone”.

Two survivors – both women and mothers who have survived intimate partner violence – had markedly different experiences of the system. The first knowledge-holder felt like a “silent party”, watching decisions being made by the police, court advisers and lawyers about her life. By comparison, the second survivor said her experience was “really positive”. She was supported by a “really excellent detective” and her lawyer explained the trial process well, including by taking her and her family through the courtroom the week before the trial to help familiarise them with the environment.

While acknowledging the impossibility of drawing any broad conclusions about Pacific survivors from the accounts of two women, the researchers identified that the critical difference in their experiences came down to the police support they received, and how much agency they were afforded.

Among the legal professionals, comprised of defence counsel, Crown prosecutors, court staff, prison officers and social service providers, the theme of tautua (or service) reoccurred throughout their talanoa. “All spoke of their desire to ‘give back to our people’ and their motivation to pursue a career in the law to serve our communities best,” the researchers said. “There was unanimous agreement that the justice system continues to underserve our people, and all recognised that the privilege of a legal education came with a responsibility to give back.”

 

Being the first

To the researchers’ knowledge, the project is the first qualitative research on Pacific peoples’ experiences of the criminal justice system. But being the first isn’t worth celebrating, they say, for “it is an indictment of the legal profession’s failure to support, resource and publish research on Pacific peoples and the law”. Characterising their work as pioneering erases the many previous contributions by other Pacific people outside the world of academia, which have “been buried under the weight of government bureaucracy, relegated to library catalogues, lost to the tides of time or dismissed for their lack of ‘academic’ status”, they say.

It’s one of the researchers’ biggest conclusions: a sizeable body of research exists on Pacific peoples and the criminal justice system but much of it remains out of public view. Several reports, commissioned by government agencies over 20 years, were identified in the course of their research, including one authored by now District Court Judge Ida Malosi and barrister Sandra Alofivae in 1996 as part of the Law Commission’s five-year project exploring the proper treatment of New Zealand women by the legal system. While they surveyed only 60 Pacific women in Auckland at the time, Judge Malosi and Alofivae’s report is the most comprehensive discussion of Pacific peoples’ experiences with access to justice, the researchers note.

“From where we stand, one of the biggest obstacles to creating transformative change is the pervasiveness of government/institutional inertia. Successive governments continue to stockpile ground-breaking work without ever actioning transformative change,” the researchers say. “If those working in the system are so impenetrably wedded to maintaining the status quo, how do we make change?”

The project reports can be read here.

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