Flying Blind: How the Justice System Perpetuates Crime, by Roger Brooking

Flying Blind: How the Justice System Perpetuates Crime, by Roger Brooking (Social Policy)

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"New Zealand has serious problems resulting from the abuse of alcohol and drugs. These problems end up in the criminal justice system. The problem is that the criminal justice system as it is configured at present fails to provide the treatment and rehabilitation that would ameliorate the impact of the abuse and prevent its re-occurrence. In consequence, these problems get worse and the level of offending goes up, not down.
The evidence about the problem is overwhelming. What is lacking is the will to do what is necessary to make things better. Roger Brooking makes the case for change and there can be no doubt that he is correct."
Sir Geoffrey Palmer, SC, 
Former Prime Minister, 
Former Head of the Law Commission

From: Flying Blind, by Roger Brooking

Executive Summary

Those who commit crime and end up in the justice system are often marginalised from mainstream society long before their offending began. Lord Bingham, former Chief Justice for Britain and Wales between 1996 and 2000 describes the personal profile of a typical offender like this:

“He is usually male, often of low intelligence, and addicted to drugs or alcohol, frequently from an early age. His family history will often include parental conflict and separation; a lack of parental supervision; harsh or erratic discipline; and evidence of emotional, physical or sexual abuse. At school he will have achieved no qualification of any kind, and will probably have been aggressive and troublesome, often leading to his exclusion or truancy. The background will be one of poverty, poor housing, instability, association with delinquent peers and unemployment”.3

1: Lock ‘em up & throw away the key

The profile of offenders in New Zealand is no different. Those who end up in our prisons have frequently been the victims of multiple childhood adversities such as those described above. Making matters worse, severe adversity in childhood frequently contributes to the development of personality disorders and mental health problems; these tend to further isolate the sufferer from family, friends and mainstream society, increasing the potential for antisocial behaviour.

When these psychologically crippled and dysfunctional individuals end up in Court, the justice system is compelled to respond. Depending on the prevailing socio-political climate, justice can be punitive - with the focus on deterrence, compelling more and more people into prison; or it can be compassionate - providing sanctions, but also mandating offenders into rehabilitation programmes to address their underlying problems.

For the last 20 years or more, New Zealand has pursued the punitive approach. As a nation, we pay little attention to the causes of crime or the need to educate and rehabilitate those who end up in the justice system. Since 1992, the prison population has doubled and our rate of imprisonment has gone from 119 per 100,000 of population to 200 per 100,000. Unless inmates are offered rehabilitation in prison and intensive support upon release, very little will have changed by the time they get out.

On the contrary, incarceration tends to exacerbate the underlying difficulties that offenders usually present with. It reinforces their isolation from society and usually releases them back into the same unsupportive environment which marginalised them in the first place. This creates a vicious cycle in which the justice system - and imprisonment in particular - adds to the multiplicity of factors which contribute to crime.

There is a wealth of research material about the impact of child abuse, parental violence, poverty and other socio-economic factors on crime, and many studies pointing to the failure of imprisonment to act as a deterrent. But little attention has been paid to the way in which the justice system actually contributes to criminal offending, especially in New Zealand. This book focuses on this issue.

It describes three separate but interconnected problems in New Zealand’s justice system which perpetuate the cycle of offending and contribute to New Zealand’s high rate of recidivism.

2: Legal & judicial barriers to rehabilitation

Over 100,000 New Zealanders appear in Court every year and approximately 80% of all crime occurs under the influence of alcohol and drugs - or is committed to feed a drug habit. The first obstacle in the system is that judges order only a small percentage of those who appear in Court to attend treatment for their substance abuse problems. From the standpoint of a casual observer, judges seem extremely reluctant to compel offenders into rehabilitation and frequently operate as if punishment and deterrence were the only weapons at their disposal.

How the judiciary deal with drink-drivers illustrates this point. Two thirds of those convicted for drink driving meet criteria for a drinking problem. So an appearance in Court is a unique opportunity for an enlightened judge to intervene in the development of their drinking problem, and possibly break the cycle of offending. Unfortunately, judges in New Zealand consistently fail to intervene. Only 5% of the 30,000 people convicted for drink driving each year are even ordered to attend an alcohol assessment - let alone attend any treatment. Most drink-drivers carry on drinking and each year, one third of the 30,000 are repeat offenders.

There are a number of factors which contribute to this judicial reluctance. Perhaps the most significant is that even if judges wanted to mandate more offenders into treatment, there are simply not enough treatment programmes available. The addiction sector in New Zealand is seriously under-funded and in the last few years, more than a dozen residential treatment programmes have closed down, including Queen Mary Hospital at Hanmer. In 2010, when the Law Commission conducted its review of liquor legislation, judges told the Commission that the lack of treatment facilities in the community was a significant problem for the justice sector.

Another difficulty is that there appears to be a commonly held perception in society that those who break the law are ‘no-hopers’, and there is no point in putting unmotivated offenders into compulsory treatment. However, research on this issue indicates that ‘compulsory’ treatment works just as well as ‘voluntary’ treatment - but it requires a different approach.

In many countries, a process known as ‘therapeutic jurisprudence’ has been implemented through the use of specialised drug Courts. These Courts are very effective at reducing re-offending because clinicians involved in the offender’s treatment come to Court to help the judge monitor progress - with contingencies or penalties for non-compliance. So far, New Zealand has been slow to adopt this approach - except in our Youth Courts. Currently, District Courts generally leave referrals for substance abuse treatment up to Probation Officers, who do not have the same coercive powers at their disposal.

Because of years of under-funding for addiction treatment in New Zealand, even if drug Courts were established, it is unclear that there would be sufficient services available in the community to support them.

3: The Corrections Department’s reluctance to correct

The second feature of the justice system which perpetuates re-offending is the shortage of rehabilitation programmes available in prison. Approximately 20,000 New Zealanders a year spend time in prison, but the Corrections Department provides rehabilitation for only a few. It prevents most prisoners from attending, in a number of different ways.

First, nearly 80% of those sent to prison each year serve six months or less. Until 2010, the Department rarely offered rehabilitation programmes to anyone on sentences of less than two years. Rehabilitation has always been reserved for high-risk offenders on long sentences, because these are the ones most likely to re-offend. However, the reality is that many offenders are in and out of prison on a regular basis with relatively minor offending. Some have been sent to prison 10 to 20 times on short sentences with no attempt by the Corrections Department, or the Courts, to rehabilitate them.

Second, 80% to 90% of prisoners have alcohol and drug problems which contribute to their offending, but only about 5% are able to access substance abuse treatment in prison. Sometimes, even those with long histories of drug dependence are not allowed to attend – including those who have been sent to prison for dealing Class A drugs like methamphetamine. Making matters worse, nearly half of those who start a drug treatment programme are evicted before completing it.

Third, most rehabilitation programmes are based on teaching offenders new ways of thinking; but these programmes require the ability to read and write. 90% of inmates in New Zealand have limited literacy skills and those who can barely read and write are unable to attend. Access to literacy programmes in prison is extremely limited - no individual tuition is available, and literacy tutors are not required to be accredited teachers.

The Department’s rehabilitation programmes also tend to suffer from ‘integrity issues’; they may work well in small pilot programmes, but don’t produce the expected results when rolled out nationally. The reality is that nothing the Department has done in its entire history has reduced the overall rate of recidivism in New Zealand. In fact, recidivism rates have gone up.

4: New uniforms, BMW’s and other flimsy fairy tales

Not surprisingly, the Corrections Department has come up with a number of philosophical justifications for the lack of rehabilitation it provides. One of these is the myth, still promoted by management in the Department that so-called unmotivated offenders will not benefit from attending rehabilitation. Another is the belief that it is more important to target antisocial attitudes and thinking than offenders’ underlying problems with alcohol and drugs. The flaw in this approach is that whatever offenders may learn in programmes designed to change attitudes and beliefs is forgotten once they get out and relapse to alcohol and drug use.

The Department also believes that because it evaluates re-offending outcomes for each programme it offers, what it is doing is ‘best practice’. Even it these programmes were ‘best practice’, so few inmates are able to attend, the overall rate of re-offending by former prisoners continues to rise. The reality is that best practice can only be achieved by integrating rehabilitation in prison with reintegration services in the community. But the Department offers so little in the way of reintegration that there is effectively nothing to integrate.

The fundamental cause of the Department’s failure is a lack of commitment and funding. It’s not that Corrections doesn’t have the money; it employs 7,200 staff and its annual budget is over $1 billion a year. But most of this goes into running the prisons, building prison capacity and strengthening prison security. Very little is put into developing programmes designed to reduce re-offending and even less into helping prisoners reintegrate at the end of their sentence.

And yet, a succession of chief executives and Corrections Ministers have claimed that ‘rehabilitation and reintegration are key government priorities’. Let’s examine this statement. In 2010, former Corrections Minister Judith Collins announced $6 million would be spent on new uniforms for prison officers. In 2011, Prime Minister, John Key announced that $4.7 million would be spent on new BMW’s for Cabinet ministers and another $12 million on VIP transport arrangements at the World Rugby Cup. The BMW’s will also be used to take VIPs to the games.

The Department spends the same amount on alcohol and drug treatment in prison each year as it does on the BMWs - $4.7 million. Substance abuse treatment is clearly not a priority.

5: The lack of commitment to reintegration

The third feature of the justice system which perpetuates re-offending is the abysmal lack of support for inmates when they get out of prison. Thousands of prisoners are released each year - many of whom are alienated from family with nowhere to live. Inadequate housing, untreated alcohol and drug problems plus a lack of support on release are persistent difficulties faced by ex-prisoners which inevitably lead to re-offending.

The greatest need for supervised and supported accommodation; currently, the Corrections Department provides funding for only two half-way houses in the entire country - with a total of 28 beds. This means that less than 1% of sentenced inmates are released into half-way houses or supervised accommodation each year. In Canada, where re-offending rates are much lower than in New Zealand, 60% of federal prisoners are released into half-way houses.

The Department’s lack of commitment to reintegration is also evident in the extremely limited funding it provides to PARS and the Prison Fellowship, which both have to rely on the extensive use of volunteers to help prisoners resettle. As a result, New Zealand has the highest ratio of volunteers to prisoners of any country in the world. This enables the Department to avoid paying for professional services and take minimal responsibility for the outcome.

For long-term prisoners, in many respects the Parole Board facilitates their reintegration. But Corrections effectively sabotages the work of the Board by ignoring Section 43 (1a) of the Parole Act. The Act requires the Department to provide the Board with all information relevant to the inmate’s offending - which obviously includes their history of substance abuse. However, Corrections does not provide the Board with alcohol and drug assessments even when these have been recommended by Departmental psychologists. Parole Board chairman Judge David Carruthers says that without this information, the Parole Board is ‘flying blind’.

Ideally, rehabilitation in prison and supportive reintegration services on release should be inter-connected processes managed by paid professionals. Inmates need rehabilitation and treatment in prison for their addictions and mental health problems - and then need support with accommodation and employment when they get out. The failure to provide adequate funding for reintegration services in New Zealand undermines what little rehabilitation is available in prison - and is the main cause of New Zealand’s persistent problems with recidivism.

6: Disastrous case histories

The inadequacies of the Department’s rehabilitation and reintegration strategies were thrown into stark relief when William Bell and Graeme Burton were released from prison. Both men had a history of alcohol and drug dependence and relapsed as soon as they got out. They both became hooked on methamphetamine and then appear to have killed their victims in a drug-fuelled, sleep deprived, uninhibited rage.

The ensuing investigations into these tragedies mostly found fault with the Probation Service. What was completely overlooked was that both men spent years in prison without attending treatment for their addictions. The Corrections Department was well aware their offending was alcohol and drug related but did nothing about it. In Burton’s case, the Department ignored six different expert reports which all stated that he needed further treatment for substance abuse.

The Department also failed to provide the Parole Board with alcohol and drug assessments on either of them. Such as assessment would probably have recommended release into a long-term residential treatment pro-gramme - where both men would have been drug tested regularly and monitored 24 hours a day.

There will be many who think that offenders like Bell and Burton could never be rehabilitated. The reality is, we will never know - because neither was required to attend treatment programmes which would have addressed a key factor involved in their offending. It’s not hard to make the case that by failing to treat their addictions in prison, or on release, the Corrections Department set them up to fail.

7: Success stories

In contrast to New Zealand, the Canadians have been very successful at reintegrating offenders and have significantly reduced violent re-offending by inmates on parole. This is because the majority are released into supported half-way houses which provide a range of rehabilitation programmes, including alcohol and drug treatment.

Finland is another country which has a more enlightened penal policy. Over the last 50 years, the Finns adopted a raft of measures which reduced their prison population by over 70% - without any increase in the crime rate. At the same time, the Finns took care of victims by adopting the most comprehensive compensation service in the world.

The state of Victoria in Australia also has a more enlightened approach than New Zealand, and an imprisonment rate of only 80 per 100,000. One of the factors contributing to this low rate was the introduction of therapeutic jurisprudence into Court proceedings. Drug Courts were established to deal with alcohol and drug related offending and Koori Courts established for Aborigine offenders. Prison is used only as a punishment of last resort.

Victoria also established a Sentencing Advisory Council - to develop consistent sentencing policy and prevent politicians from introducing ad hoc changes. The last Labour Government had been planning to introduce a similar Council in New Zealand. National scrapped the plan in 2008 preferring the simplistic solutions to law and order offered by the Sensible Sentencing Trust.

The Trust has had so much influence, Professor John Pratt of Victoria University believes New Zealand has become the victim of ‘penal populism’, whereby sentencing and penal policy have been driven by knee-jerk political responses to public opinion. This has led to the building of more and more prisons with little regard for the human cost or the financial burden this imposes on the taxpayer. New Zealand’s approach has also been criticised by the International Centre for Prison Studies in London. Researchers at the Centre describe New Zealand’s sentencing and prison policies as an example of what ‘not to do’.

8: The need for a new goal

New Zealand’s ‘lock ‘em up’ approach to dealing with crime has created a financial black hole – what goes into it just disappears. For instance, one adult criminal, in and out of prison for most of his life, ends up costing the taxpayer about $3 million. Nationally, crime costs New Zealanders about $12.5 billion a year, of which $5 billion is paid by taxpayers for courts, police, prisons, and crime-related health and ACC costs. The remainder is the cost imposed on victims.

In the next five years, crime will cost the country over $60 billion, of which the taxpayer will have to fork out about $25 billion. This makes it imperative that more effort is put into addressing the causes of crime and rehabilitating alcohol and drug addicted offenders. Instead of pouring money into providing more police, more probation officers and more prisons, resources need to be put into early intervention programmes, halfway houses and additional treatment programmes in the community.

In the last five years, the availability of drug treatment in prison has increased, but this produces only short-term reductions in re-offending. To make any real difference, New Zealand needs to make more treatment available in the community. Community-based programmes cost substantially less to provide and are far more effective. Prison programmes have a benefit to cost ratio of only $2 or $3 per dollar spent on delivery, whereas community-based programmes reduce crime related costs by between $12 and $23, depending on the length and intensity of the programme.

The National Committee for Addiction Treatment has recommended an increase in funding for community-based programmes of $150 million over three years. Based on the cost benefit ratios described above, the benefit to be gained from such an investment would be somewhere between $1.2 billion and $2.4 billion, mainly in reduced costs of crime.

In 2010, the National Government provided a small increase in funding for methamphetamine addicts, and in 2012 an additional $10 million was allocated to provide interventions for those who end up in Court with alcohol and drug related offending. Given the size of the problem, these are little more than token gestures.

The National Government blames the recession for not addressing these issues - but still manages to find funding for other prioritised projects such as the World Rugby Cup and bailing out failed finance companies. Expanding prison capacity is also a well-established priority. The Government has just spent $218 million on a new prison at Mt Eden and another $424 million will be spent building another one at Wiri.

Since the economic downturn in 2009, New Zealand has been facing the biggest budget deficit in its history. A new approach to penal policy is required - one that New Zealand can afford. We need to actually reduce the prison population. Until that becomes a goal and a national priority, substance abuse treatment and half-way houses in the community are unlikely to be prioritised either.

9: The need for political courage

Because of the politically punitive climate that exists in New Zealand, rehabilitation and prison reform are not vote-winning issues. Those who address it need both personal and political courage to speak out. In the United States, Senator Jim Webb has displayed courage and leadership by calling for a commission of inquiry into penal reform. In Britain, Justice Secretary Kenneth Clarke has released proposals to cut the Corrections budget and reduce the prison population. As an Opposition MP in 2008, Simon Power called for a parliamentary inquiry into the New Zealand Corrections Department. But once National won the election, Mr Power changed his tune.

There was no inquiry and subsequently, he and Prime Minister John Key criticised Chief Justice Sian Elias for daring to even voice an opinion on the need for reform. In a speech at Victoria University, the Chief Justice expressed concerns about prison overcrowding and made a number of practical suggestions - which were largely ignored by those who criticised her. Parole Board chairman Judge David Carruthers has also been ignored when pointing out the need for more half-way houses to be established in New Zealand.

The Government’s negative response to calls for action from senior officials is in direct contrast to Finland where academics and judges help formulate penal policy. Utilising the experience of professionals at the coalface is one of the reasons the Finns have been so successful at reducing their prison population.

A year after the Chief Justice’s speech, Police Commissioner Howard Broad, also expressed concerns about an on-going ‘wave of criminals’ coming into the justice system. Then in December 2010, Labour MP Rick Barker took up the call for an inquiry into recidivism describing it as ‘an intractable problem’. Unfortunately, there are very few politicians in New Zealand with the courage and integrity to address this issue and step out of line against the prevailing punitive ideology.

10: How to fund rehabilitation, even in a recession

Whatever the economic situation, governments still find funding for those projects they prioritise. If a higher priority was placed on providing rehabilitation programmes in prison and half-way houses in the community, the funding could easily come from less worthwhile projects - such as building a new prison at Wiri. It could also come directly from government levies on alcohol. Additional levies would provide at least three major benefits:

First, increasing the price of alcohol would reduce national consumption. Raising the cost to the consumer, using levies ear-marked specifically for treatment, was a key recommendation made by the Law Commission in its 2010 report on alcohol reform. This is the single most effective intervention available to any government to reduce crime, death and social destruction caused by alcohol.

Second, increased funding for rehabilitation would enable judges to put more problem drinkers and drug addicts into treatment early in their offending career, instead of sending them to prison. The justice sector could double dip, as this strategy would also provide more rehabilitation options for prisoners on release - and help reduce recidivism.

Third, prison based alcohol and drug treatment has some effect on re-offending but much greater impact when followed up by treatment in the community. Because of overheads and other difficulties involved in delivering addiction treatment in prison, community based treatment is more effective and substantially cheaper to deliver. The benefit to cost ratio of community based treatment is four to eight times higher than treatment in prison.

Unfortunately, the Government ignored a number of key recommendations in the Law Commission’s report and was criticised for its weak response by a cross section of the community. National seems more concerned about not upsetting so-called responsible drinkers than adopting policy based on evidence and research which would actually reduce the damage and destruction caused by alcohol.

11: The vicious cycle caused by flying blind

Ignoring the evidence is one thing - failing to obtain it in the first place is another altogether. But this is exactly what occurred in three separate investigations into the Probation Service’s monitoring of offenders on release. The first investigation was into the murders committed by William Bell in 2001; the second was into the management of Graeme Burton’s parole in 2007 and the third was the Auditor-General’s investigation of 100 parolees in 2009.

All three investigations were critical of the Probation Service. But all three also ignored years of systemic failure by the Corrections Department to provide adequate or appropriate rehabilitation programmes in prison. None of these enquiries examined the Department’s failure to provide the Parole Board with alcohol and drug assessments on parolees and they all ignored the lack of accommodation and aftercare available to prisoners on release.

In conclusion, there are three different stages in the justice system at which intervention and rehabilitation can occur - in the Courts, in the prison system and on release. But the reality is that New Zealand has a 5% justice system - one in which only 5% of offenders, or less, receive any help at any stage. So not only is the Parole Board flying blind, the entire system is flying blind. This creates a vicious cycle that locks offenders into the system and perpetuates criminal offending.

By failing to intervene, the justice system exacerbates the underlying cycles of poverty, poor education, parental conflict, drug and alcohol abuse and physical and sexual abuse which sets so many people down the path towards crime in the first place. This is a systemic failure of monumental proportions with serious ramifications for the safety of the community. It makes a mockery of statements by a succession of Corrections Ministers that ‘rehabilitation and re-integration are key government priorities’. They’re not - and they never have been.

In Britain and the United States, it appears the tide is beginning to turn. A few individual politicians have found the courage to admit that locking up more and more people is horrendously expensive, a waste of human and financial resources, fundamentally unjust and doesn’t change behaviour. The question is, are there any politicians in New Zealand with the courage to take up this challenge?

3 Tom Bingham, The Sentence of the Court in The Business of Judging, Oxford University Press 2000, p 308.

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