Waikeria prison interior (Image: RNZ)
Waikeria prison interior (Image: RNZ)

ĀteaJanuary 12, 2021

Rights or riots? Why real prison reform means turning the hierarchy upside down

Waikeria prison interior (Image: RNZ)
Waikeria prison interior (Image: RNZ)

Prisoner advocate Sir Kim Workman on how New Zealand’s human rights record has taken a battering, and the Māori-led measures that are actually working.

The six-day stand-off between prisoners in Waikeria’s top jail and prison management partially destroyed a building already targeted for demolition. It was variously described as “a protest”, “an uprising”, “a riot”, and a “prisoner disorder event”, depending on who was doing the talking. Regardless of one’s point of view, there was widespread concern about the apparent lack of government response to Hōkai Rangi, the Department of Corrections’ 2019 strategy to transform the prison system.

Māori impatience with the lack of progress is both palpable and understandable. In 2017, the newly appointed minister of justice, Andrew Little, had a clear message: the criminal justice system is broken and racist, and we’re going to fix it. He established an advisory group, Te Uepū Hāpai i te Ora, which consulted widely, and particularly with Māori. A raft of reports followed: a Hui Māori report, Ināia Tonu Nei—Now Is the Time: We Lead, You Follow; a police report, Te Huringa o te Tai – The Turning of the Tide; and Hōkai Rangi from Ara Poutama Aotearoa (the Department of Corrections). All had similar messages. The call for change was made clear by the Ministry of Justice’s overarching report, Turuki! Turuki!.

A consistent message throughout our conversations has been that racism is embedded in every part of the criminal justice system. We heard that the system often treats Māori, and Māori ways, as inferior and that individuals acting within the system hold active biases against Māori (consciously and unconsciously).

Initially, Māori excitement at the prospect of change ran high, but was somewhat dampened when recent adverse reports on prisoner treatment at Paremoremo and Auckland Women’s Prison confirmed breaches of basic human rights and constant infringement of the Nelson Mandela Rules – the United Nations minimum standards for the treatment of prisoners in detention.

It left the public with the distinct impression that the entire prison system is directed toward a regime of punishment, harsh treatment and deprivation. That is not true.

My recent prison visits confirm that change is taking place, and much of that change is directed toward Māori prisoners. By way of example, Te Ao Mārama, the Māori Focus Unit at Waikeria Prison, highlights what can happen when Corrections works in partnership with tangata whenua to develop a whānau-centric programme to bring about positive changes in offenders’ thinking and behaviour through the practice of Māori values and disciplines, in combination with specialist interventions such as alcohol and drug treatment.

Te Ao Mārama runs on five shared tikanga values. Kaitiaki – caring for oneself and the environment. Manaaki – how we treat each other. Rangatira – respect everything, treat people how you want to be treated. Whānau – we know we are in jail but the unit is our whānau. Wairua – everything has a wairua, it’s about respecting each other. In the universe that is Te Ao Mārama, those values are discussed, shared and practised on a daily basis. It is Hōkai Rangi personified.

Prisons can be a very different place, when operated within an agreed framework of values based on human rights. In 1990, Louis Henkin, a celebrated American scholar of international law, proclaimed that “human rights is the idea of our time, the only political-moral idea that has received universal acceptance”. As global consensus developed about the nature of human rights, so did the idea that the way societies treat those who have been deprived of their liberty is a litmus test of commitment to human rights. In the words of Mandela: “It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones.”

Leading criminologists and penologists incorporated human rights principles into correctional practice. In 2004, Andrew Coyle, director of the International Centre for Prison Studies, and a former governor of Brixton Prison, published a comprehensive handbook that translated universally agreed standards on prison reform into practical guidance for prison staff.

New Zealand, however, was going down a different path. Between 2009 and 2013, parliament introduced eight pieces of legislation that were in direct conflict with the Bill of Rights. The New Zealand Law Society felt impelled to report the matter to the United Nations. Unfazed, a further six acts were added to the list by 2016. Of the 14 legislative measures, 11 adversely affected the human rights of offenders and prisoners.

Between 2008 and 2017, New Zealand’s reputation as a nation protective of its human rights reputation took something of a battering. The collective impact of this legislation spoke of a nation in which the right against search and seizure and the protections against arbitrary or unlawful interference of privacy were ignored. A nation with bail laws that reversed the burden of proof, so that police were no longer required to prove that a defendant should not be released. A nation that was prepared to punish offenders twice for the same offence and authorise arbitrary detention, in breach of sections 26 and 22 of the Bill of Rights. A nation that legislated to subject offenders to disproportionately severe treatment, resulting in disparities between offenders that were not rationally based and resulted in grossly disproportionate sentencing.

Many prison staff continued to accept that prisoners were human, and that fundamental rights do not part company with the prisoner at the prison gates.  But the government’s actions changed the nature of that conversation. Prison administrators sought refuge in the language of managerialism, justice by algorithm, and a narrow view of what comprised public safety. Conversations about dignity, respect, tolerance and compassion were actively avoided. For some, the Mandela Rules were seen as an irritant, a barrier to efficiency, and an impediment to progress. But others continued to argue differently – algorithms are not a substitute for altruism, any more than calculus is a substitute for compassion.

Recent prison visits and conversations with prison staff offer significant hope for the future.  I was able to renew acquaintance with men and women, some of whom have been in the prisons for 35 years and more. Their commitment and concern for the wellbeing of prisoners and their whānau is as strong as it was then, as is their determination to treat prisoners fairly and with respect. They are prepared to advocate for the wellbeing of those in their care, and for new interventions that show promise.

As we shared stories, my mind kept returning to a speech made on July 20, 1910 – over 110 years ago – by a young Winston Churchill, then Britain’s home secretary, who threw down the gauntlet during a parliamentary debate on prison reform:

“The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country. A calm dispassionate recognition of the rights of the accused and even of the convicted criminal against the state; a constant heart searching of all charged with the deed of punishment; tireless efforts toward the discovery of regenerative processes; unfailing faith that there is a treasure, if you can find it, in the heart of every man. These are the symbols which in the treatment of crime and criminals make and measure the stored-up strength of a nation and are sign and proof of the living virtue in it.”

When the Mandela Rules were adopted in 2015, Yuval Ginbar, legal adviser at Amnesty International, said they “could herald in a new era in which prisoners’ human rights are fully respected. If fully implemented, they would help turn imprisonment from a wasted time of suffering and humiliation into one used for personal development leading to release, to the benefit of society as a whole.”

That is why Hōkai Rangi is so important. It speaks the language of decency, of respect for the dignity and mana of prisoners, of humanising and healing, of caring for their wellness and wellbeing. And that is why it is also difficult. It requires those responsible for the implementation of Hōkai Rangi to speak a different language than the one they have become accustomed to.

Meanwhile, how should Waikeria Prison respond to the present crisis? Within all the prisons in New Zealand, there are pockets of excellence – whether it is the emerging Tu Mai initiative at Manawatū Prison, the enthusiastic support at prisons like Whanganui for rugby league icon Graham Lowe’s sports-based initiative, Kick for Seagulls, or the Corrections rehabilitation programme STURP (Special Treatment Unit: Violent Offending) at prisons like Springhill and Rimutaka. Within those initiatives are prison officers who see their role as being about more than security – who know that when prisoners are treated humanely and fairly, they are less likely to reoffend when they leave. Why not turn the hierarchy upside down? Appoint those people as ambassadors for change, and give them a meaningful role in promoting Hōkai Rangi to those who are less convinced – including prison managers. Hōkai Rangi is already inside the whare – let those that have practised fairness and decency over the years join with Māori leadership, and lead the charge for change.

Was this the light that the prime minister stared at while designing the traffic light framework? Probably not tbh. Photo: RNZ / Angus Dreaver
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