Māori Over-representation in the Criminal Justice System Does Structural Discrimination Have Anything to Do with It?

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1 Māori Over-representation in the Criminal Justice System Does Structural Discrimination Have Anything to Do with It? A Discussion Paper Kim Workman Executive Director, Rethinking Crime and Punishment 8 November 2011 Introduction In recent years, politicians and senior public service managers, while openly acknowledging the differential between Māori and non-maori, have resisted the idea that there is any deliberate ethnic bias, or evidence of personal racism in the system. The Hon Chester Borrows, Associate Minister of Justice, in a recent address presented a view that typifies the present political position. On the one hand, he acknowledged the existence of an issue; on the other, he personally resisted the possibility of Police racism. 1

2 In 2011, young Māori were prosecuted at a rate more than five times that for young Pakeha, and 2.7 times more than young Pacific people. Young Māori make up nearly half of those transferred from the Youth Court to the adult justice system. With the Māori youth population predicted to grow faster than general population growth, this problem is only going to increase. This is an area I think is too prone to simplistic solutions. It's too easy to just blame the Police for picking on young Maori. That's neither helpful nor, in my opinion, particularly true. 1 There is general agreement that adverse early-life experiences, and social and environmental factors contribute significantly to high Māori, which in turn impact on offending patterns. However, while there is evidence of structural discrimination within the criminal justice system, and allegations of personal racism, there is a general reluctance to conduct research into these areas. The absence of research thus enables politicians and senior public servants to deny that such issues exist, in the absence of clear evidence to the contrary. This paper explores the issues of structural discrimination and personal racism within the criminal justice system, and proposes a way forward. Recent Research Department of Corrections In 2007, the Department of Corrections released an exploratory report providing an overview of Māori over-representation within the criminal justice system. 2 It examined the issue by considering the evidence for two different explanatory approaches: that a range of adverse early-life social and environmental factors result in Māori being at greater risk of ending up in patterns of adult criminal conduct. 1 Hon Chester Borrows, Speech to Auckland Youth Justice Mini Conference, 28 June Department of Corrections Over- representation of Mäori in the criminal justice system: An exploratory report. Wellington: Department of Corrections:

3 that bias operates within the criminal justice system, such that any suspected or actual offending by Māori has harsher consequences for those Māori, resulting in an accumulation of individuals within the system; The report examined the two approaches in the light of criminal justice data and research. A range of developmental and early-age risk factors were discussed, each of which are known to be associated with a developmental pathway that increases the risk of (among other things) criminal involvement. The extent to which Māori young people were disproportionately represented in these subgroups was reviewed. The report found that, as a consequence of being exposed to a range of risk factors in social, economic and family circumstances, the over-representation of Māori in criminal justice statistics reasonably accurately mirrors the extent of criminal involvement amongst Māori, particularly younger Māori males. Those life circumstances most often associated with offending are, for a range of reasons, more likely to affect Māori families. The report noted that the two perspectives are by no means mutually exclusive, and both approaches offer part of the explanation for the current statistics. The evidence pointed to an interaction between the two processes, where the operation of one set makes the other more likely. For example, early environmental influences may predispose individuals towards certain types of illegal or anti-social behaviour, which in turn raises the risk of Police involvement. Additionally, the risk of apprehension is amplified because of formal and informal profiling by official agencies, as well as society generally. The report examined the two approaches in the light of criminal justice data and research. It concluded that: Disproportionality shows up strongly in Police apprehension figures, and a number of studies indicate that ethnicity in and of itself could have an influence in this area; 3

4 Similar levels of disproportionality are recorded in prosecutions, convictions, sentencing and reconviction figures, but most of the disproportionality relates to known risk factors rather than ethnicity. Ministry of Justice Report 2007 A 2007 report by the Ministry of Justice showed Māori are disproportionately represented in criminal justice statistics to an alarming degree. 3 It offered two possible explanations for ethnic disproportionality within the literature: a) the differential involvement thesis holds that levels of ethnic disparity are largely, if not solely, the product of differential offending by certain ethnic- minority groups; b) the discrimination thesis argues that levels of ethnic disparity should be understood (at least in part) as the result of direct and indirect discrimination within the criminal justice system and society more broadly. The review concluded that a comprehensive policy approach should take into account each of the different aspects of ethnic disproportionality identified above, and must involve: a) addressing the direct and underlying causes of ethnic minority and indigenous offending; b) enhancing cultural understanding and responsiveness within the justice sector (including increasing positive participation for ethnic minority and indigenous groups, and improving public accountability via monitoring and publishing data on rates of ethnic disparity); 3 Morrison, Bronwyn, Identifying and Responding to Bias in the Criminal Justice System: A Review of International and New Zealand Research, (Ministry of Justice, November 2007) 4

5 c) developing responses that identify and seek to offset the negative impact of neutral laws, structures, processes and decision making criteria on particular ethnic- minority groups. The unanswered question is whether these discrepancies occur because of differential offending patterns by Maori, a lack of cultural responsiveness, or the negative impact of laws, structures, processes and decision making criteria. Alternatively, do personal racist and discriminatory attitudes held by individuals or groups of individuals interconnect with these practises and processes which result in evidence of ethnic bias? Is it the nature of the system, or practise within it? Drivers of Crime Strategy 2009 In 2009, the government established the Drivers of Crime Strategy to address the underlying causes of criminal offending and victims' experiences of crime. It recognised that certain circumstances of people's lives are associated with a greater likelihood of offending and victimisation. The drivers of crime were to represent the most difficult problems in our society today - stemming from risk factors within family, community and educational environments. By 2011, work to address the Drivers of Crime was separated into four priority areas. Improving maternity and early parenting support Addressing conduct and behaviour problems in childhood Reducing harm from alcohol and improve treatment Managing low-level repeat offenders While cross-sector work on issues of offending by Māori was carried out in all four priority areas, there is no evidence that any work was done to address the concerns about systemic bias within the criminal justice system. There is one reference to the issue in Te Puni Kokiri s contribution to the Drivers of Crime strategy. In its report, it includes. Action at 5

6 policy and practice levels to address community and systemic factors. 4 As one of five key operational directions to improve effectiveness and value for money in addressing the Drivers of Crime. i.e Resistance to the Idea of Systemic Bias and Personal Racism The idea of systemic bias within the criminal justice system has been resisted by government agencies over recent years.. When the Hon Dr Pita Sharples, Co-Leader of the Māori Party, launched the parties Justice Policy on1 October 2011, he spoke about the structural discrimination against Māori within the criminal justice system in general, and the Police in particular. 5 There was an expected public backlash against the comments, and when invited to comment, Rethinking Crime and Punishment issued a media release citing research which supported Dr Sharple s view. 6 Dr Sharples was interviewed on Q and A on the 9 Oct. On the 14 th October, Commissioner Peter Marshall came to the defence of his staff in an interview on Te Karere. 7 He did not agree there was a racial bias in Police dealings with Maori. The issue was vigorously discussed on talkback radio, and most of the comment supported the Commissioner s position. Some commentators reproached Dr Sharples for his claims, and the then Minister of Police, the Hon Judith Collins, publicly chastised him for being out of order. It is unclear whether Dr Sharples public statement was motivated by the forthcoming election, by personal experience and frustration, or by evidence that he had acquired in his role as Associate Minister of Corrections, and Minister of Māori Affairs. 4 Te Puni Kokiri, Addressing the Drivers of Crime for Māori Briefing Paper Justice System Discriminates Against Maori, NZ Herald, 1 Oct Claims Evidence Supports Sharples View on Prejudiced Police TVNZ News: 7 Top Officer Rejects Maori Party s attack on Police Te Karere News, 14 th October

7 Distinguishing between Structural Discrimination and Personal Racism The general public is extremely sensitive in regard to allegations of discrimination, and often fail to distinguish between issues of structural discrimination and personal racism. Dr Sharples talked initially about structural discrimination; and it is important not to reinterpret that to mean personal racism. In a recent Human Rights Commission discussion paper, 8, it introduces the idea of structural discrimination in this way: Embedded social disparities persist despite numerous interventions over the past several decades. The Human Rights Commission s annual review of race relations, Tūi Tūi Tuituiā Race Relations in 2010, notes: 9 Despite the many efforts of communities and successive governments, social and economic inequalities, accentuated by the economic recession, remain unacceptably high. An unrelenting focus on the elimination of racial inequalities is needed, so that future generations of New Zealanders are free from this blight. It is also time to examine whether there are still systemic or institutional barriers to racial equality that need to be addressed to make other interventions more effective. The review lists identifying and working to remove any structural or institutional barriers to racial equality in the enjoyment of civil, political, social and economic rights as one of the top 10 race relations priorities for The HRC s discussion paper on structural discrimination was intended to further the Commission s commitment to addressing structural barriers to ethnic equality. It defines structural discrimination as: Structural discrimination (also referred to as indirect discrimination or institutional racism) refers to practices, norms and behaviours within institutions and social structures which have the effect of denying rights or opportunities to members of 8 Human Rights Commission, Structural Discrimination the need for systemic change to achieve racial equality, A Discussion Document, August Human Rights Commission (2011) Tūi Tūi Tuituiā: Race Relations in

8 minority groups, keeping them from achieving the same opportunities available to the majority group. Structural discrimination can occur both intentionally and unintentionally. The term is also used in relation to more informal practices which have become embedded in everyday organisational life and effectively become part of the system, how we do things around here. 10 The State Services Commission has described structural discrimination as follows i : Structural (often referred to as systemic) discrimination occurs when an entire network of rules and practices disadvantages less empowered groups while serving at the same time to advantage the dominant group. The discussion paper goes on to distinguish between structural discrimination and personal racism. It is important to note the difference between individual (or personal) racism and institutional racism. While both forms of racism have negative implications for marginalised groups, individual acts of racism often receive more public attention as they are often overt and easier to identify than entrenched less visible forms of racism within institutional policies and practices...while individual level racism affects a modest number of individuals, a racist institutional policy can systematically disadvantage many members of a racial group, and the consequences can endure for many years, even for generations. ii Personal Racism within the Criminal Justice System It is to some degree unfortunate that what research there is about the existence of personal racism within the criminal justice system, focuses on Police behaviour and attitudes. The actions of public servants from Courts, Corrections and other agencies are largely concealed from public view. Police business however, is public business. Every action and encounter 10 State Services Commission (1997). EEO Policy to 2010: Future Directions of EEO in the New Zealand Public Service. Retrieved from 8

9 is measured, monitored and talked about. If there is a perception of Police racism, it very quickly becomes a matter of public discussion. Before long, perception becomes reality. Historically, the State has not been neutral, and agencies such as the police have actively policed Māori throughout New Zealand history. Likewise, Pacific peoples as an ethnic group have been the targets of active policing. In the 1970s, the Dawn Raids against Pacific peoples by the New Zealand Police and immigration officials reflected a discriminatory practice out of proportion of the actual incidence of offending. 11 In a recent publication, Kylee Quince summarized the evidence around police perceptions of Maori. 12 Research conducted in 1998 in conjunction with the police and Te Puni Kokiri assessed both Māori perceptions of the police and police perceptions of Maori. The Māori research participants were unanimous in their perception that the police institution is a racist institution that perpetuates strong anti-māori attitudes. 13. Participants related numerous examples as evidence, including being stopped and questioned on the pretext of criminal offending, verbal racist abuse, physical abuse during arrest, and disrespect for tikanga Maori. 14 Variables that were identified as relevant in influencing Police behaviour included: police perceptions about a person s ethnicity, physical appearance, gender, class, associates, and whanau name. Many respondents thought that police often provoked Māori into verbally and/or physically retaliating to justify arrests. The result of these perceptions is that some people stated a strong attitude of distrust towards the police, such that they would be hesitant in going to them for assistance, or in providing assistance to police if asked. These were generalised attitudes, prevailing across all ages, income levels, educational levels, gender and geographical locations. The parallel research on police perceptions of Māori often matched some of the negative attitudes perceived in the Māori study. For example, at least two thirds of the 737 police 11 Hill, R. (2008). Māori, police and coercion in New Zealand history. In D. Keenan (Ed.), Terror in our midst? Searching for terror in Aotearoa New Zealand. Wellington: Huia Publishers. 12 Quince, Kylee, Maori and the criminal justice system in New Zealand, in Criminal Justice in New Zealand (ed) Julia Tolme and Warren Brookbanks, Wellington:LexisNexus NZ Ltd: 2007) 13 P Te Whaiti and Dr M Roguski Maori Perceptions of the Police Wellington, He Parakeke, 1998, G Maxwell and C Smith Police Perceptions of Maori Victoria University of Wellington, Institute of Criminology, P Te Whaiti and Dr M Roguski Maori Perceptions of the Police Wellington, He Parakeke, 1998, Summary and Recommendations. 9

10 respondents reported hearing colleagues use racist language about Maori. Many reported a greater tendency to suspect Māori of an offence, or to stop and query Māori driving flash cars. Overall, the data suggested that about 25 per cent of police have negative attitudes towards Maori. 15 Earlier research with Māori has shown that Māori satisfaction with the Police was below the New Zealand average. 16 More recent research has revealed that Māori have a strong distrust of the Police and feel that the Police exhibit anti-māori attitudes and practices NZCASS findings provide support for the position that Māori are not as satisfied with Police as Europeans In more recent times, there has been growing anecdotal evidence of, and widespread Māori dissatisfaction with, the extent of ethnic profiling, especially with young people. Rethinking Crime and Punishment receives information on a regular basis about such incidents. One contributor provided an internet link to a TV3 programme, which 16 min 50 sec into the programme, showed a routine stop of four Māori youth. 20 They were held at gunpoint by the Police, and without reasonable cause, searched. A small amount of cannabis was found, and the owner warned. There was neither an explanation nor an apology. The contributor asked the question would that happen to a carload of Pakeha? Māori youth are not the only ones singled out for attention. A successful Māori business woman aged around 40 years reported that she.purchased a BMW car and was stopped seven times by the Police within the first two months. She has since downsized. 15 G Maxwell and C Smith Police Perceptions of Maori Victoria University of Wellington, Institute of Criminology, 1998, Summary and Recommendations. Note that of the 737 police respondents, 8 per cent of the sample identified as Maori. 16 MRL Research Group. (1995). Public attitudes towards policing. Wellington: New Zealand Police National HeadquartersNew Zealand Police. 17.MM Research. (September, 2002). Annual survey of public satisfaction with Police service. Wellington: 18 James, B. (2000). Challenging perspectives: Police and Maori attitudes toward one another. Wellington: Te Puni Kokiri and New Zealand Police. 19 Cunningham.C., Sue Triggs and Sally Faisandier, Analysis of the Maori Experience: Findings from the New Zealand Crime and Safety Survey 2006, Ministry of Justice,

11 There is no local research on the issue of ethnic profiling, but the possibility that certain subgroups of the population are more susceptible to Police stopping and checking is a reasonably well-researched issue. Coleman and Norris have noted in their study of policing practices internationally, the over-policing of ethnic groups that are viewed as more criminally prone can have the effect of increasing their arrest rates and entry into the criminal justice statistics as offenders. Further research is required into the policing of Māori and Pacific peoples. 21 According to the Department of Corrections report: 22 A considerable number of arrests follow from Police stopping and questioning individuals in public places. From the perspective of amplification, differences in apprehension could therefore result from some bias in policing practice. Younger age, certain styles of clothing and headgear, hairstyles, type of car driven, and incongruity of person with time or location are all known to trigger Police suspicion. Research conducted in the UK indicated that ethnicity also influenced Police officers decisions to stop and question potential offenders 23. One US study. found that African American male drivers were more likely than other groups to be stopped by the Police. Similar findings emerged in some UK studies. 24 The Police have not remained idle in working to improve the Police-Māori relationship. The Māori Responsiveness Strategy within the Police is of a high calibre. The establishment of Iwi Liaison Officers, of the Cultural Advisory Groups at both regional and national level, and the support given to Iwi Crime Prevention Strategies, are evidence of a determined effort to address the needs of Maori, whether victims, offenders, or iwi and Māori organisations. The current Policing Excellence Strategy, including the focus on alternative dispositions, and neighbourhood policing, may well address some of the issues outlined in this paper. 21 Coleman, C. & Norris, C. (2002). Policing and the police: Key issues in criminal justice. In Y. Jewkes, & G. Letherby (Eds.), Criminology: A reader. London: Sage. 22 Ibid Department of Corrections p Lundman Richard J & Kaufman Robert L (2003) Driving while black: effects of race, ethnicity, and gender on citizen self-reports of traffic stops and Police actions. Criminology 41 (1) See for example, The Stephen Lawrence Inquiry (1999) co.uk/document/cm42/4262/sli-06.htm. 11

12 Structural Discrimination within the Criminal Justice System Racist and discriminatory attitudes held by individuals are often interconnected with structural discrimination. As a starting point therefore,, it is useful to focus on structural discrimination in the hope that systemic change may improve individual attitudes. A 2009 report by the Ministry of Justice showed Māori are disproportionately represented in criminal justice statistics to an alarming degree % 80% 60% 40% 43% 45% 39% 43% 35% 48% 53% 20% 14% 0% Population Apprehensions Prosecutions Other Outcomes Convictions Monetary Sentences Community Sentences Custodial Sentences As the above Figure demonstrates, in 2006 Māori were over- represented at different stages of the criminal justice process population. Further exploration of the data showed that in 2007: Māori were four to five times more likely to be apprehended, prosecuted and convicted than their non- Māori counterparts Morrison, Bronwyn, Identifying and Responding to Bias in the Criminal Justice System: A Review of International and New Zealand Research, (Ministry of Justice, November 2007) 26 This analysis was based on NZ Police and Ministry of Justice data from 2007, extracted from the justice System (ISIS), in April Rates of disproportionality (or over- representation) were calculated using residential population figures from population projections calculated using 2006 Census data. 12

13 Māori were also 7 ½ times more likely to be given a custodial sentence, and eleven times more likely to be remanded in custody awaiting trial These rates have been found to vary by both age and gender. For example, Māori aged 10 to 13 were almost six times more likely to be apprehended than their New Zealand European counterparts. Māori aged 17 to 20 were three times more likely to be so. Māori women were 5 ½ times more likely to be apprehended and ten times more likely to receive a custodial sentence than New Zealand European women. Māori men were over four times more likely to be apprehended and seven times more likely to receive a custodial sentence than their NZ European equivalents. Levels of disproportionality also differed by offence. Māori are: Just over three times more likely to be apprehended for drug- related offences, Seven times more likely to be apprehended for offences against justice 30 Almost six times more likely to be apprehended for violent offences compared to New Zealand Europeans. 27 Ministry of Justice (2006) Mäori and Pacific Peoples (Paper 11) Unpublished Cabinet Paper. Wellington: Ministry of Justice. 28 Department of Corrections Over- representation of Mäori in the criminal justice system: An exploratory report. Wellington: Department of Corrections: Doone, P (2000) Report on combating and preventing Mäori crime: Hei whakarurutanga mö te ao. Wellington: Crime Prevention Unit, Ministry of Justice and Department of the Prime Minister and Cabinet. 30 The offences against justice category is largely comprised of sentences involving a breach of a sentence condition (particularly breaches of community work sentences), release condition, or protection order, and the failure to answer bail. 13

14 Research also confirmed that Māori are more likely to be reconvicted and re- imprisoned following community- based sentences and on release from prison in comparison to other groups Responses to Personal Racism and Structural Discrimination While we know what is happening, there seems to be a collective reluctance on the part of government and its agencies to delve further into this information, and to try to understand why this is happening. The issue needs to be more closely explored, to determine whether: (a) The above conclusions are justified by the evidence. (b) How should all justice government agencies, (not only the Police), respond. What is the evidence for Structural Discrimination? The Human Rights Commission report distinguishes between two forms of structural discrimination that exist within the justice system in New Zealand. The first relates to the nature of the system. That is, the values the system is based upon, a lack of engagement with Māori and Pacific people in project design and implementation and a lack of cultural sensitivity. The second relates to practice within the system. There is evidence of bias at different points throughout the system - a factor that notably contributes to the higher rates of Māori imprisonment. The available evidence demonstrates bias elsewhere than in the Police, and a close examination of various aspects of the system, produces some concerning results. This next section identifi8es issues within the general criminal justice system,, the youth justice 31 Nadesu, A (2008) Reconviction patterns of released prisoners: A 48- month follow- up analysis. Wellington: Department of Corrections. 32 Nadesu, A (2009) Reconviction patterns of released prisoners: A 60- month follow- up analysis. Wellington: Department of Corrections. 33 Department of Corrections Annual report 1 July June Wellington: Department of Corrections. 14

15 system, the custodial remand of prisoners, and sentencing practices in relation to domestic violence. The Criminal Justice System Former Police Commissioner Peter Doone reinforced this point in his research, when he said: Criminal Justice data shows that Māori are over-represented at every stage of the Criminal Justice process. In 1998 they were 3.3 times more likely to be apprehended for a criminal offence than non-mäori. They were more likely to be prosecuted, more likely to be convicted, and more likely to be sentenced to imprisonment. The result was that Māori made up 14 percent of the general population and 51 percent of the prison population. These gaps are widening, not narrowing. 34 Doone makes the point that issues of personal racism and structural discrimination are not confined to the Police, and there is prima facie evidence for biased practice throughout the criminal justice system. The Youth Justice System In 2003, a Department of Social Development report showed that: Young Māori who entered the youth justice system did so with, on average, less severe offences than non-maori. Young Māori who entered the youth justice system in this study had a similar range of backgrounds and risks to those who were identified as non-mäori. In other words, socio-economic factors did not appear to explain the differences in terms of the numbers of Māori young people entering the youth justice system. 34 Doone, P, Hei Whakarurutanga mä te Ao: Report on combating and preventing Mäori Crime, Crime Prevention Unit, Department of the Prime Minister and Cabinet, Wellington,

16 Those who solely identified as Māori experienced greater risks than those who identified as mixed-mäori. Young Māori were more likely to receive outcomes involving orders for supervision either in the community or in a residence. This appeared to be independent of the seriousness of their offences Young Māori were more likely to be dealt with in the Youth Court than were young Pākehā (71% compared with 56%). This meant that a more severe range of outcomes were available for these Māori than for those dealt with solely through a family group conferences by the police. 35 The report noted that it was important that the police ensure that they are not responding differently when a report is received about the behaviour of young Māori compared to young Pakeha, or when an offender is apprehended. Previous research has showed that most officers believed that some officers behaved differently when a young person who was reported as offending was identified as Māori. Furthermore, in this study, it appeared the decision to charge a young person in the Youth Court varied geographically. In some areas, other things being equal, Māori were more likely to be charged than Pākehā Judge Andrew Becroft, in an address to the Police Conference, in 2005, 36 pointed out that: Ministry of Justice statistics showed the apprehension rate for Māori youth aged 14 to 16 is more than twice as high as the rate for all young people and more than three times the rate for young people of other ethnicities. Figures also revealed that the Māori youth apprehension rate varies around New Zealand but that the highest rates are found in centres with relatively small Māori populations such as Tasman and Canterbury. In these centres, the rates were 52.7% higher than the national rate. 35 Achieving Effective Outcomes in Youth Injustice: An Overview of Findings; Department of Social Development, Feb Becroft, Andrew, Offending by Maori, Police Management Conference, Nelson, November

17 Remand prisoners Other regions with high Māori youth apprehension rates were Bay of Plenty, Wellington and Waikato. 37 Custodial Remands According to the 2011 Offender Volumes Report, the over-representation of Mâori in the remand population is more pronounced than in the sentenced population. 1,200 1, Balance date Asian European Māori Pacific Unknown The current view is that the high number of Māori prisoners remanded in custody is partly explained by the fact that Māori are over-represented in the number of people charged with offences that are more likely to result in remand in custody, such as aggravated robbery and burglary. However this does not entirely account for the difference. A lack of access by Māori to appropriate support services by was identified as a contributing factor in a 2006 Cabinet Paper. 38 Unfortunately, there is no available current research. O Malley s 1973 analysis of Magistrates Court data found similar rates of granting of bail and demand for surety for Māori and non-māori, but experience then diverged.. Māori were less likely to arrange 37 Ministry of Justice, Youth Apprehension Rates by Ethnicity, Cabinet Paper Effective Interventions Paper 4: Remand in Custody. 17

18 surety for bail (usually for financial reasons) and this reduced their ability to obtain legal advice. They were only half as likely to have legal representation, and more likely to plead guilty, - which O Malley attributed to different attitudes and, again, lack of legal representation. 39. The Ministry of Justice published a report on offending on bail in New Zealand in 1994, but did not include any ethnic breakdown of bail statistics. 40 A more recent report by the Department of Corrections, showed that Māori account for the largest proportion of remand custody starts, and that the number of Māori remand custody starts has increased more rapidly than other ethnic groups 41 However, the report did not include any detailed discussion or further analysis on the Māori remand population. Based on a dataset provided by the Ministry of Justice we have calculated the relative likelihood of Māori being remanded in custody relative to European defendants. The dataset is materially equivalent to the data used by the Ministry to develop bail policy. Some small variations will have arisen because the data is constantly changing due to cases being updated as a result of appellate decisions. Across all offending Māori are 1.96 times more likely than Europeans to be remanded in custody. 42 In relation to two major groupings of offences, Serious Class A Drug Offences (Class A) and Serious Violent and Sexual Offences (SVSO) it might be expected that the gap would narrow, and that the seriousness of the offences would result in a narrowing of the gap. This does occur in relation to Class A offences. Māori are 1.31 times more likely than Europeans to be remanded in custody However, there is little impact in relation to 39 O'Malley, P. (1973a) The Amplification of Māori Crime: Cultural and Economic Barriers to Equal Justice in New Zealand. Race, Vol. 15, No. 1, July. 40 Lash, B. (2006) Conviction and Sentencing of Offenders in New Zealand: 1995 to (with Fleur Watson for Chapter 7) Ministry of Justice, Wellington, New Zealand. 41 Harpham, D. (2004) Census of Prison Inmates and Home Detainees Department of Corrections, Wellington. 42 This figure is statistically significant (95% CI ). 43 This figure is statistically significant (95% CI ) 18

19 SVSO offences with Māori 1.87 times more likely than Europeans to be remanded in custody at some time. In other words, Māori who appear before the Court on serious violence and sexual offences are almost twice more likely to be remanded in custody than Europeans. A similar situation exists in Australia. Aboriginal people and Torres Strait Islanders were held on remand at a rate of 583 per 100,000 population compared with the overall NSW rate of 49 per 100, Between 2001 and 2008, the number of Indigenous adults on remand rose 72%. 47 Bail refusal rates are also higher for Indigenous people. In the New South Wales Local Courts in 2010, 15.4% of Indigenous people were bail refused on finalisation of their matter, nearly three times higher than the proportion of non-indigenous people (5.5%). 48 While there has been no New Zealand research to determine whether there is a difference between Māori and European custodial remands, Australian research shows that Aboriginal defendants are likely to have more restrictive (and often unrealistic) bail conditions imposed, leading to higher rates of bail breaches in comparison to ethnic- majority defendants. 49 What these statistics suggest is that when the justice system sets out to get tougher, it has a bigger impact on Māori than on non-maori; which in turn contributes to disproportionality in Māori representation. Article Three of the Treaty of Waitangi provides Māori with rights of equal citizenship, and any legislation that has a different impact on Maori, jeopardises that relationship. 44 This figure is statistically significant (95% CI ) This. refers to those sub-populations who appear before the Court and are the subject of bail decisions. 46 Corrective Services, Australia (Australian Bureau of Statistics, December 2011). The disparity between Indigenous and non-indigenous remand rates is even greater as the overall remand rate includes Indigenous people. 47 J Fitzgerald, Why are Indigenous Imprisonment Rates Rising? Bureau Brief No 41 (NSW Bureau of Crime Statistics and Research, 2009). 48 NSW Bureau of Crime Statistics and Research (jh ). 49 Blagg, H, Morgan, N, Cunneen, C and Ferrante, A (2005) Systematic racism as a factor in the over- representation of Aboriginal people in the Victorian criminal justice system. Melbourne: Equal Opportunity Commission and Aboriginal Justice Forum. 19

20 Variances in Sentencing for Family Violence Convictions for domestic violence offences are very high for both Māori and Pacific Islanders. However, compared with Pākehā the rate of convictions for Māori are about 10 times higher and for Pacific Islanders about 4 times higher. In the view of Hook, 50, any judicial system that achieves such excessively high conviction rates against any minority ethnic group as compared with the majority must be viewed with a degree of suspicion. Custodial sentences handed down to Māori run about 15 to 18 times higher than Pākehā when considered per unit of ethnic population and about 3.5 times higher for Pacific Islanders. Other forms of sentencing also run exceptionally high for both ethnicities. These data suggest that either both Māori and Pacific Islanders are much more violent than Pākehā, or there is a bias against Māori and Pacific Islanders within the criminal justice system.. Criminologist Robert Webb advises caution in interpreting this data; As Hook illustrates in his work, there appears to be different sentencing outcomes for ethnic groups, but why this is occurring is not so clear. Understanding the differential sentencing outcomes is difficult with the information available to researchers. It is difficult to ascertain whether it is a combination of sentencing factors such as age, socio-economic status and the seriousness of the offence; whether specific legislation such as the Sentencing and Parole Acts 2002 have increased prison numbers for specific ethnic groups or all groups as a whole; 50 Hook, G.R. (2009b). The criminalization of Māori and Pacific Islanders under the Domestic Violence Act MAI Review, 3, Target article 2, 12 pages. 20

21 or whether there are other social processes occurring in sentencing itself for Māori and Pacific peoples. 51 Comparative Research Comparing similar research over time, may help to understand whether these issues are of recent origin, or have been in existence for some time. Police Adult Diversion In 1998, Kim Workman and Associates, together with Whetu and Tumanako Wereta, and Christine Laven of the Prime Minister s Crime Prevention Unit, were commissioned by the Police to conduct research into the low level of Māori participation into the adult diversion process-, and to propose the development of a Kaupapa Māori adult diversion model. 52 While there was no significant statistical disparity nationwide, there was evidence of regional difference, with the eligibility criteria interpreted and implemented differently in each district. The general approach to previous youth convictions excluded large numbers of Māori from the adult diversion process, particularly in relation to convictions for burglary and unlawfully taking motor cars. Police practise did not encourage the presence of whänau or support persons at interview, and offenders had little say in determining the outcome. Victims were dealt with indirectly, and no effort was made to engage the victim in the process. While Police guidelines stated that the diversion scheme lent itself to the involvement of the community, Māori were not involved in providing support and advice to the Police, nor were they actively engaged in development of diversion programmes for offenders. Rather, they were the passive recipient of offender referrals, once the Police had decided that such a referral was appropriate. Nor were Māori organisations and providers visible as recipients of offender donations, supervisors of community work, or providers of services. They did not feature on the lists of charity organisations, or in any significant 51 Robert Webb, Māori, Pacific peoples and the social construction of crime statistics, MAI Review, 2009, 3, Peer Commentary 2 52 Workman, Kim Police Adult Diversion: Increasing Maori Participation 1998, a report for the New Zealand Police. 21

22 way as agencies for offender referrals. Diversion Coordinators had very limited Māori networks, and their knowledge of Māori community and organisational structures was poor. One feature of the findings, was the regional variation in Māori diversion. For example: In Tauranga Caucasians were increasingly likely to be diverted from 1993 to 1995, from 61.4% to 71.4%, whilst Māori offenders proportionately became less - from 35% to 25%. By 1997 the ration had improved for Māori increasing to 36.8% and Caucasian decreasing to 57.4%. The report commented that For Māori, the most successful outcome will be an awareness that the Police are prepared to engage Māori in the design, planning and delivery of the Adult Diversion Scheme in a way which embraces Māori philosophy, involves whänau and community in the key processes, and provides the opportunity for Māori service providers to deliver culturally appropriate programmes, for Māori - by Māori. In conclusion, the report commented on the general view of the Police toward Māori: Underlying the diversion activity was a view that to do anything special for Māori was to encourage the development of a separate justice system. 53 Pre-Charge Warnings Twelve years later, similar issues emerged from the department s review of pre-charge warnings. 54 The regional monitoring data showed that, between November 2009 and May 2010, 12% of charges against Pacific offenders, 9% of charges against Asian offenders, 9% 53 Workman, Kim Police Adult Diversion: Increasing Maori Participation 1998, a report for the New Zealand Police. 54 O Reilly, Justine, New Zealand Police Pre-Charge Warnings Alternative Resolutions Evaluation Report, Evaluation Services Team, December

23 of charges against European offenders, and 7% of charges against Māori offenders were resolved by pre-charge warning. The lower proportion for Māori may reflect a misapprehension in the Auckland District that pre-charge warnings could not be granted to those with prior offending histories. 55 And further Figure 11 and Figure 12 and the regional monitoring data show what could be interpreted as an ethnic bias against Māori having a Disorder and Breach of liquor ban offence resolved by way of a pre-charge warning, particularly in the Auckland District. However the apparent ethnic bias could reflect the misapprehension in the Auckland District that pre-charge warnings should not be granted to people with prior offending histories, which Māori are on average more likely to have. This area needs to be monitored and once the e-custody module is available across the region it will be possible to analyse the interaction between ethnicity and prior offending in more depth. 56 This district variation in police practice, seems to be an ongoing feature, and may be the reason why in some districts, more than others, Māori overrepresentation is publicly attributed mainly to ethnicity, rather than to other contributing factors. Apprehension for Cannabis Related Offences One of the most cited examples is the Christchurch study of Māori cannabis users, which showed that police practices toward Māori were out of proportion with their actual offending. 57. Māori cannabis users were arrested at a substantially higher rate than other users of the drug. The study found that on the basis of equivalent usage, Māori experienced arrest at three times the rate of non-māori users. The study indicated Māori experienced bias from the policing of this area. 55 Supra: Supra: Fergusson, D., Swain-Campbell, N., & Horwood, L. (2003). Arrests and convictions for cannabis related offences in a New Zealand birth cohort. Drug and Alcohol Dependence, 70(1),

24 The issue of structural discrimination and ethnic bias runs across the criminal justice sector. The Police are at the front end of the system, and particularly vulnerable. They are also in a position to take a lead to actively enquire into the issues, and be proactive in addressing them. Concluding Comment The Waitangi Tribunal s recent report Ko Aotearoa Tēnei poses solutions to inequalities that are based on a fundamental shift in attitude and approach by the Government 58 : Unless it is accepted that New Zealand has two founding cultures, not one; unless Māori culture and identity are valued in everything government says and does; and unless they are welcomed into the very centre of the way we do things in this country, nothing will change. Māori will continue to be perceived, and know they are perceived, as an alien and resented minority, a problem to be managed with a seemingly endless stream of taxpayer-funding programmes, but never solved. This is not an issue that can be dealt with by responding to individual complaints about Police racism or structural discrimination. A basic and fundamental shift in attitude is required. Defending and justifying Police and Justice sector behaviour will not bring about necessary change. Commitment to a sector-wide review of systems and practises across the Justice Sector is required. The Justice Sector Leadership Board There is now a mechanism which has the potential to manage change. In 2011, a Sector Leadership Board - comprising of the chief executives of Police, Justice and Corrections - was established. The Board, with the Secretary for Justice as its chair, is responsible for driving performance across the justice system, coordinating the major change programmes 58 Waitangi Tribunal (2011). Ko Aotearoa Tēnei 24

25 underway and collectively planning to modernise the sector, reduce costs, improve services, and further enhance public safety. The Board is supported by a Sector Group within the Ministry of Justice. In addition, the Justice Sector Fund, established in May 2012, is a funding pool that allows savings to be transferred between justice sector agencies and across years. The government s Reducing Crime and Reoffending Action Plan will be a major focus for the Justice Sector Leadership Board, and presents an ideal opportunity to ensure that in all its work, it (in the words of the 2007 Ministry of Justice report), a) addresses the direct and underlying causes of ethnic minority and indigenous offending; b) enhances cultural understanding and responsiveness within the justice sector (including increasing positive participation for ethnic minority and indigenous groups, and improving public accountability via monitoring and publishing data on rates of ethnic disparity); c) develops responses that identify and seek to offset the negative impact of neutral laws, structures, processes and decision making criteria on particular ethnic- minority groups. Kim Workman Executive Director Rethinking Crime and Punishment 8 th November