Like other parts of the criminal justice system, bias in New Zealand’s remand system continues to discriminate against Māori.
Many of us take for granted that if we are ever accused of a crime, we will be treated as if we are innocent until proven guilty. This idea is such a cornerstone of our democracy and justice system that it is enshrined the New Zealand Bill of Rights Act.
This principle has come under sustained attack from far-right lobby groups such as the Sensible Sentencing Trust, with major changes to our bail laws over the last 10 years that have undermined the presumption of innocence.
As a result, the justice system has reached a tipping point. Data released to me under the Official Information Act shows that in 2018, for the first time on record, the majority of people remanded in custody were not sentenced to imprisonment. This is ground-breaking and extremely concerning.
To many New Zealanders the link between remand and the presumption of innocence may not be necessarily clear. Let me explain. When a person has been accused of a crime and comes before a judge, that judge must decide if the person will be released to their community or held in prison awaiting trial or sentencing. The judge either remands them in custody or bails them into their community, usually with some conditions.
In other words, when someone is remanded in custody, they have either not been found guilty of any offence, or they haven’t been sentenced to imprisonment. This means that, according to the data given to me, 50.1% of people who were locked up in prison before they were sentenced were not ultimately sentenced to prison.
So why is this a breach of the presumption of innocence? Quite simply, remand is an extreme form of punishment. Anyone who’s been in prison knows that remand is the most dangerous part of a prison lag. As shown by the “Fight Club” revelations at Mt Eden (remand) Prison, as well as in numerous reports by the Office of the Ombudsman, people on remand are the most likely to be violently victimised. They also often don’t have access to programmes, education, or work, and are much more likely to be placed in solitary confinement. Most concerningly, people in prison are most likely to take their own lives while they are remanded in custody, at a rate that outstrips almost any other group in society. All of this means that remand is a harsh form of punishment on people who are supposed to be presumed innocent.
The fact that more than half of people remanded in custody are not convicted of any crime or sentenced to imprisonment is a profound injustice that undermines a fundamental principle of our democracy.
As with basically all issues in the New Zealand criminal justice system, Māori experience this injustice at a disproportionate rate. Other data released to me shows that, in 2018, Māori made up 54% of the people who were remanded in custody but against whom there was no “proved outcome”. That same year, 3093 Māori people were locked up even though it was decided there was not enough proof that they had committed the alleged offence.
This is not a matter of a small number of innocent people being swept into a punishing prison system as an unfortunate side effect of an otherwise well-functioning bail system. Thousands of innocent people are being imprisoned every year because of our racist bail laws. When more than half of the people remanded in custody are not convicted or sentenced to imprisonment, it represents not only a broken system but a crisis in our democracy.
This system didn’t just emerge organically. It was designed to work this way. In particular, the ever-expanding remand population has been caused by changes to bail laws in 2013. Following the murder of Christie Marceau in 2011, the ultra-conservative Sensible Sentencing Trust used the case to push for changes to bail laws it wanted. For the Trust, it was the perfect opportunity: a blonde, white woman was brutally murdered by a man of colour. The New Zealand media lapped this up, stoking the fires of the tough-on-crime rhetoric. In a frenzy of political opportunism, Parliament passed an amendment to the bail laws in 2013 which was supported by National, Labour, NZ First, ACT and United Future. However, based on the findings of the Coroner’s Inquest into Marceau’s murder, the Bail Amendment Act would not have prevented Christie’s death.
Instead, it has led to a rapid expansion in the prison population, at a time that the government was expecting prison numbers to decrease. Since the changes came into effect, the overall remand population has increased by 122.1%. This has disproportionately affected Māori with 55% of the total growth in prison numbers coming from Māori. At the same time, the number of women in remanded in custody has increased by 232.6%.
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Importantly, this rapid increase in the number of people remanded in custody isn’t because there are suddenly many more violent people in our society. It is simply because parliament decided to make it harder for people to get released into their communities while on trial or awaiting sentencing. As JustSpeak’s 2017 report outlines, the law changes, alongside the housing crisis, mean that homeless people and people in insecure housing have been thrown in prison simply because they don’t have a permanent address.
This problem is only getting worse. The corrections minister has made some attempts to reduce the remand population, such as ensuring that people who are functionally illiterate have someone to help them to fill out forms. As a result, in 2018 the prison population briefly fell slightly. However, when the injustice of our bail laws is written into legislation and case law, tinkering around the edges can never be enough.
The fact is, our parliament passed legislation that fundamentally undermined our rights to being considered innocent until proven guilty. It has led to an explosion of the prison population that has disproportionately affected Māori and poor people. Our parliament also laid the foundation for the racist, systematic, and widespread punishment of innocent people through remand in custody. When denial of the basic right to presumption of innocence is baked into a fundamentally unjust system, a complete transformation of our system is required. This will only happen when New Zealanders choose to reject the politics of tough-on-crime and demand a justice system that is fair, equitable, and that actually works. When a fundamental principle of our democracy is at stake, we can’t just leave it to the politicians.
Ti Lamusse is a PhD Candidate in Sociology at the University of Auckland, studying the New Zealand Criminal Justice System.
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