New Zealand's racist justice system - Our law is not colour-blind video

TOBY LONGBOTTOM AND PHIL JOHNSON/STUFF CIRCUIT

“I am 100 per cent sure that if I was Pakeha or I could afford a $1000-an-hour lawyer I wouldn't have been charged.”

In a week when the justice system stood accused of affording soft treatment to the son of a rich-lister, consider this judgement from another case.

It's from a judge in Christchurch addressing a young man who stood before him for sentencing: "Parliament did not say that if you are a member of a particular race, culture or ethnic group, this means on its own that you are entitled to a sentencing discount."

The law, it seemed he was saying, was colour-blind.

That case involved a 25-year-old man convicted of manslaughter after a passenger in his car was killed in 2013. The defence lawyer had sought to have the judge take into account that his client had suffered social deprivation as a Maori, a proposition the judge resoundingly rejected. The case from this week involved the son of a wealthy wine-maker who knocked unconscious a police officer in a vicious assault but escaped a prison sentence after the judge took into consideration his background and the fact he would pay his victim $5000 reparation.

In many ways, it's unfair to compare the two cases: it's a crude juxtaposition.

But in a week when there have been cries of "white privilege", when the case of the rich-lister's son led even the Police Association to say that had he been poor and brown, he would have been sent to jail, it's fair to ask: are you treated differently depending on your ethnicity?

Is there institutional racism in this country?

And, more pointedly, is our justice system racist?

TOBY LONGBOTTOM/STUFF CIRCUIT

A Stuff Circuit investigation has delved into 10 years' worth of data, examining arrest, prosecution, conviction and sentencing records and spoken to a broad range of people confronting the problem.

Problem?  Undeniably, yes. There is no doubt that, from whichever angle you look at it, there is a serious skew in the system against Maori.

Even the Government acknowledges it. A senior official admitted to Stuff Circuit that unconscious bias in the justice system was a "live issue".

Besides, the numbers are undeniable.

Maori make up the majority of prisoners. Think about that for a second because it's a statistic which is thrown around so much so that sociologist Dr Tracey McIntosh of Auckland University says it's "the most commonly-known social statistic".

"It's so common that people have normalised it, they think we're talking about something that's part of our natural environment," she says, "rather than really recognising that it's a part of our social environment, that it's been made.

"And if it has been made, it can also be un-made".

Contemplate, then, what it means: although Maori are only 15 per cent of the population, Maori inmates make up 51 per cent of the of the sentenced prisoners. It's even higher in remand prisons (56 per cent).

But it's not just in prisons where the disproportion exists: Maori are prosecuted and convicted at a higher rate than anyone else; and five years after being released from prison 81 per cent of Maori inmates will have another conviction, compared to 68 per cent of Pakeha.

It's got to the point where you won't find anyone arguing about how bad things have got. Stuff Circuit has learned that the Ministry of Justice has appointed a senior official, former district court manager Tony Fisher, specifically to tackle the problem.

Last week, we put to him a figure that showed in 2015, the rate at which Maori were handed down sentences of imprisonment was eight times higher than it was for Pakeha. Fisher paused and said this: "I don't have those statistics but yes Maori are more likely to be imprisoned than non-Maori, more likely to be prosecuted, more likely to be convicted than non-Maori.

"So yes, all through the criminal justice system the statistics don't look good for Maori."

Let's translate that from the language of a civil servant to everyday words: this is a national disgrace.


(TOBY LONGBOTTOM/STUFF CIRCUIT)

There are many shameful aspects to the problem of Maori over-representation in the criminal justice system. One is that it has been an issue for so long.

The first year that Maori out-numbered all others in prison was 1996 - 20 years ago.

A decade ago, retired probation officer Tom Hemopo took a Waitangi Tribunal claim against his then employers alleging they were in breach of the Treaty of Waitangi because they were failing to work with Maori, particularly in the sentencing process.

The Tribunal found in his favour. And then what happened?

"They made a certain amount of recommendations and then the department actually ignored them," says Hemopo. "I said to myself, 'Well, if you're going to play that game, I'll see you in court'."

And so, back to the Tribunal he has gone, this time alleging a much wider, long-term failure by the Crown.

We went to visit Hemopo in Napier where he worked for the Department of Corrections for 25 years. At first, he's shy about the cameras, and nervous, pulling his woolen hat down low and leaving his sunglasses on inside.

But eventually, he warms, especially when he talks about what motivates him. He talks of one of his grandmothers, Rapua i te Rangi, who encouraged him to join the department to help his people. "And of course I wouldn't argue with my nanny."

"For me, I'd love to see the stats come down, that's my greatest wish. But the driver behind is what my grandmother told me. She said, 'get on and make sure you do something that's going to help our people'. I love my grandmother, she was my everything."

A message from Tom Hemopo's grandmother was - and still is - his motivation for the fight.

And so, inspired by that promise made decades ago, he headed to Wellington in July to face the Tribunal for the second time. In recognition of how significant the issue is, the Tribunal agreed to consider his claim under urgency during a four-day hearing. He's now awaiting its recommendations.

The claim is not about land, or money. What's in it for Hemopo? "Nothing, absolutely nothing. I need the government to think about what they're doing. I need the system to change."

The claim's purpose is to reduce the high rates of Maori imprisonment and re-offending by overhauling the way Maori are treated in the justice system.

"If they were to overhaul it, I'd dance on hot bricks because that's what it does need. Get rid of the systemic bull...., the racism, within not only prisons but probation as well."

There it is. The "R" word. Racism. And Hemopo is unflinching when he uses it.

"The system itself is racist. You're Maori you're more likely to go to jail than your Pakeha or Chinese friend. If you're brown you're targeted. Simple as that."

Is that right? The figures would certainly support Hemopo's assertion. Especially when you look at areas of the law where the system isn't black and white.

 

Take cannabis offences where police and the courts exercise discretion all the time - about who to arrest, who to charge, who to convict, who to sentence to jail.

From 2010-2014, police and justice figures show Maori made up 51 per cent of prison sentences, 40 per cent of prosecutions and convictions.



And yet, over the same period, Maori made up only 30 per cent of those who received pre-charge warnings - in other words, were let off - compared to 57 per cent of Pakeha.

Of those who got to court and were offered diversion - a system which enables offenders to escape a record - Maori made up only 20 per cent.



In other words, if you're caught with cannabis and you're Pakeha, you're more likely to receive a pre-charge warning or get diversion. If you're Maori, you're more likely to be convicted and sent to jail.

But surely that's not just because of ethnicity? Well, 2003 research by Otago University's David Fergusson and Nicola Swain found the application of the law was biased when it came to cannabis offences.

And Maori suffered.


(TOBY LONGBOTTOM/STUFF CIRCUIT)

Lawyer Roimata Smail is worried about the stigma that such bias, and the figures generally, create.

"I have a young son who's one and obviously like me he's Maori, and I think about in 18 years time, if the statistics are like they are now, I would hate for people to look sideways at him because he's a young Maori man. And I want a New Zealand more generally for him that is safe," she says.

It's one of the motivations she had for taking the Hemopo case to the Waitangi Tribunal.

"I think it's really important to understand that this is not just a Maori issue. New Zealand needs a national conversation about our corrections system. Why do Maori fare so badly in it? But more broadly is our corrections system making us safe?"

Smail says there needs to be a Royal Commission of Inquiry. "We really need to look closely at why it's failed for so long."

The claim heard evidence about the "recycling" of Maori men and women through the prison system.

"The picture we've seen through this inquiry is dire - young Maori men and women going into prison for very short terms initially, and just going in over and over and over.

"Going to prison actually has a huge impact. It's long enough to lose your job, for your children's lives to be disrupted, and then, when you come out to start all over again, you have a prison record."

Within two years of coming out of prison, 63 per cent of Maori inmates will have another conviction. Within five years it's 81 per cent. And within five years, more than half will have been re-imprisoned.

The Corrections Department set a target of reducing reoffending by 25 per cent by 2017. Already there have been concessions this target won't be met.

For Maori, there wasn't even a specific target in the first place.

"Despite the fact that over half of the people Corrections is dealing with are Maori there was no target set to reduce Maori reoffending. It seems obvious if you don't address your most difficult group, that you've had the least success with, you're not going to meet your overall target," says Smail.



For Auckland University sociologist Tracey McIntosh this lack of a target for Maori is yet another perplexing aspect of the problem.

To come up with targets and programmes for the mainstream, is to ignore a crucial point: in prison, Maori are the mainstream.

To understand that is to reframe the whole debate about prisons, says McIntosh.

"The most salient characteristic of our current incarcerated population is the fact of the disproportionality of Maori. That does seem to be the thing that needs to be attended to with the greatest urgency.

"It does seem to me to be wilful not to have a Maori strategy when the majority of your prisoners are Maori.

"There are some fantastic people - Maori and non-Maori - working in prisons who would love to be agents of transformative change", but the system did not allow them, she says.

She hoped that the Tribunal findings might change that.

But to find change, McIntosh believes, we need to look beyond prisons. And it's in small town New Zealand where she believes much of the focus has to be.

Maori, especially young men and women, are often from small towns or rural communities, places where educational opportunities are limited, unemployment is high and gangs are pervasive.

And when you look at the figures for prison sentences handed down in areas outside of the main cities, you can see the disproportion of Maori imprisonment is extraordinary.

In Northland, three out of every four prison sentences last year were handed down to Maori. In the Central North Island, it's even worse - four out of every five. Yes, more Maori live in those areas, but 75 per cent and 80 per cent?

Why does it happen? There are no easy answers.

McIntosh talks about over-policing of certain communities, and of institutional racism which she explains can be "racism without racists".

"You don't have to have individual racist actions if the system itself produces outcomes of judicial racism, of institutional racism."

She also thinks you can't have a conversation about institutional racism without having a conversation about colonisation - especially when you consider that high imprisonment of indigenous people is also a feature of Australia, Canada and other "settler states".

"For many, they think Maori draw on colonisation as an excuse for all of our problems. The fact is you have to look at historical antecedents and recognise alienation of land and resources and the huge intergenerational impacts - we absolutely have to acknowledge it."

Tom Hemopo agrees, and that's the answer he throws back at people who think maybe Maori are somehow predisposed to crime.

"My answer is it's intergenerational trauma from colonisation," says Hemopo. "Start there, work your way back to where the person is, and you'll begin to understand why they're doing what they're doing."


(PHIL JOHNSON/STUFF CIRCUIT)

Tim Aperehama Morrison says he is the living embodiment of institutional racism, of all the statistics.

Four years ago, he was charged with manslaughter following the death of a man in Auckland. Morrison, who was studying to be a paramedic, was working at a Salvation Army rehabilitation centre when a man who had been drinking heavily and had been involved in a previous stoush stumbled on to the property and smashed a glass door.

Morrison found the man down the road and confronted him about the damage.

"He just steps in and I think he's coming at me," Morrison says. "My instinct is to push him away [and] I catch him on the side of the face he falls down, hits his head on back of the ground."

Morrison calls an ambulance and starts giving the man first aid, but a week later he dies in hospital.

The police, meanwhile, allege Morrison punched the man with a closed fist - even though there is no evidence he had.

"It came down to a [witness] who had been drinking for 11 and a half hours who said he saw me run across the road and said that's all he saw. When he was asked in court, and also in his statement if he saw me punch the guy he said no."

A jury took less than two hours to find him not guilty.

"I am 100 per cent sure that if I was Pakeha or I could afford a thousand dollar an hour lawyer I wouldn't have been charged."

While it had been years since he had any convictions (a driving charge from 2007), Morrison admits that he has a colourful past and has served time in prison.

Might it be that it was because of that past that he was charged, not because of his race?

"There's a good argument for that. But at the end of the day, if this institutional racism wasn't there in the beginning, I wouldn't have these charges."

Morrison is now taking a Waitangi Tribunal claim, alleging the Crown has failed in its Treaty obligations.

But as well as dealing with the past, he's also trying to get on with the future - while the manslaughter case severely disrupted his studies, he is now working as a paramedic and is applying for medical school.

He can't, however, ignore the injustice perpetrated on him and so many other Maori.

He flinches when we put to him how 40 per cent of Maori men over the age of 15 have done prison time or a community sentence.

"If that happened in any other community, there would be an outrage. [If it was Pakeha] there would be an outcry."

****

So why isn't there an outcry? Why aren't people more outraged?

And how did we become that society? Tony Fisher, the Ministry of Justice's director of Maori strategy, shrugs his shoulders when asked.

"You'd probably have to ask a social commentator," says Fisher. "The fact of the matter is we're in this situation, we've got the opportunity now to start to address it."

Fisher calls himself an optimist, and you can understand why. His position is a new one and he has a role, not only within the ministry, but within the justice sector as a whole, to tackle the problem.

"It's not a one-man, one-person band but a concerted effort. But we're under no illusions about the magnitude of the task and we're also really clear about the fact that as justice sector agencies we can't and won't attempt to do this on our own."

He says together police, Corrections and Justice will come up with a strategy which will go to Cabinet. Quite what the strategy is and what the targets are is as yet unknown.

"What we do know is that there are other approaches to criminal justice processes that are needed for Maori if we are to improve outcomes.

"We're not starting from a zero base so across our individual agencies - police, corrections, justice - we have some experience in some successful initiatives that have improved outcomes on a smaller scale, but have improved outcomes for Maori."

He's talking about programmes such as the Maori Focus units within prisons, and the Rangatahi Courts - youth courts based on marae - and iwi advisory panels who work with police.

Judges, too, are recognising the need to deal with what Police Commissioner Mike Bush last year called "unconscious bias".

"Our judges as part of their training run courses on unconscious bias so it is an issue that has been around and it is a live issue," says Fisher. The courses have been run for about five years and are attended by all judges.

Fisher admits none of those programmes or initiatives, on their own, are going to make a difference. And that's lucky - because if he did he would be howled down by everyone we spoke to.

"Maori over-representation," says Fisher, "has occurred over a number of years, a number of generation, so we're not going to turn the tide quickly."

TOBY LONGBOTTOM AND PHIL JOHNSON/STUFF CIRCUIT

In 2015, Maori were eight times more likely to be sent to prison than Pakeha.

But how many will drown in the meantime?

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As part of our research, we looked back at the number of police apprehensions over the past 10 years. It's roughly the same number for Pakeha as  Maori - 875,000 versus 868,000.

But if the number of Maori apprehensions were adjusted to match the proportion of the population made up by Maori, the number of Maori apprehensions would reduce to about 300,000.

Think about that for a minute: half a million fewer arrests of Maori. Imagine what it would mean not just for Maori but for our country if that was the reality.

(TOBY LONGBOTTOM/STUFF CIRCUIT)

 - Stuff

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