The Criminal Injustice System: Beyond Platitudes and Bleeding Hearts

Aotearoa (New Zealand) has a lot of serious problems. Neoliberal reforms have been imposed against the will of the people here and it is only our pride and our racially informed sense of kinship with imperial power that keeps us from recognising that we are a neocolony – a privileged neocolony perhaps, but a neocolony nonetheless.

Recent decades have been an affront to our sovereignty and our progressive and socialist history. We were the first country with a 40 hour working week, the first to allow women to vote, the second to have a comprehensive public health system, and the first welfare state. It cuts against the grain, therefore, that in 30 years we have gone from a country with no poverty or unemployment and near the worst income inequality in the OECD (7th worst in 2014). With relatively low wages and one of the highest costs of living in the world, neoliberalism is ripping apart our social fabric. We have a housing crisis that is worse than those hitting the US, UK, Australia and Canada, but it is even more of a shock because 30 years ago the idea of homelessness and of people begging in the streets was simply alien to us.

Make no mistake, neoliberalism has fucked this country, and I do blame the US and the UK along with those traitor scum politicians who serve the empire and not their own people. But in one key respect, neoliberalism was pushing against an open door. Neoliberalism seeks to shrink the social support offered by the state but it also seeks to grow the coercive powers of the state – the police and the prisons. The latter harmonises much more easily with traditional Aotearoan values. We are a punitive people. We are not ruled by fear of malefactors to the extent that the US seems to be, but we still have a strong attraction to “law-and-order”.

Our prison population has traditionally been high, but as incarceration rates have grown in other countries we have kept our place in the leading pack (excluding the US which is in a league of its own). We imprison people at nearly twice the rate of Canada; 45% higher than England and Wales and 30% higher than Australia.

The punitive culture in Aotearoa is partly the product of settler-colonial relations. The nature of colonialism is to obliterate autonomy. In Aotearoa the British achieved this in the same manner in which they did in India. First is the process of dividing the locals, using diplomatic trickery, and co-opting collaborators. The second is military conquest, which is only achievable because of native forces. The third is the realm of police, judges, truancy officers, land surveyors, bureaucrats, and lawyers. It is a telling part of our history that the reputed “last gasp” of the decades-long New Zealand Wars was when a column of 120 armed men was sent to arrest a leader, Hone Toia, who refused to pay a dog tax. The judge who imprisoned Hone Toia made it clear that he was demonstrating the reach and power of the government.

The story thereafter will be familiar to other settler colonial societies, Compulsory schooling became the mechanism for literally beating and torturing the language and culture from Māori children. There was a school-to-borstal pipeline, particularly for Māori boys. This was the beginning of a self-sustaining circle of institutional racism. The result is that even though Māori are only 15% of the total population, they make up more than 50% of the prison population. Even Al Jazeera has made a documentary about the “Locked-Up Warriors” of our country.

However, at the risk of weakening the sense of crisis (which is very real in absolute terms) I feel obliged to point out that in proportion to indigenous populations Aotearoa actually has a lower indigenous incarceration rate than Australia and Canada. Australian aboriginals are the most imprisoned people in the world, ahead of US African-Americans. None of this should detract from the significance of Māori imprisonment here, where indigenous people make up a much larger part of the total population.

The prison is clearly being used as an ongoing tool of colonial control, even if it is only the momentum of the past that keeps it so. Yet I would argue that treating this as a race issue alone will not help. The racism of the system shows that it is an unjust system, but getting rid of the race element will not fix the injustice. We have a massive social problem with Māori incarceration, but if we fix the racism inherent in the system will it really fix a system that is so open to racism? Where would that leave us with regards to class and poverty? In this day and age do we really think we can address a racial disparity if we don’t also address inequality?

Native Affairs

Māori TV is a gift to all Aotearoans because it is our only public service mandated TV broadcaster. They produce some very good television – albeit at the cheap end of the spectrum. Yet I was sceptical of the Native Affairs episode on “Locking Up Māori”. I had the strange feeling that they would acknowledge the role of racism and poverty but then circle back around to the normal mindless position of showing stories of individual prisoners finding redemption with the help of guitar-toting redeemers.

Well, colour me un-fucking-surprised.

Of course, there is something to be said for reminding people that structural and personal racism are real factors behind imprisonment rates. When Marama Fox recently dared to use the term “racism” as a cause of Māori incarceration in The Spinoff’s “Great Debate”, the audience guffawed in incredulity. Clearly some people out there need a bit of educating. Therefore it might seem like a good deed to highlight the structural racism and social drivers that lead to high rate among Māori, but viewers of Native Affairs are probably not the ones that need telling. If you are not familiar with Native Affairs, it is just what it sounds like – a current affairs programme dealing with issues relating to Māori. The name is an ironic reference to the Ministry of Native Affairs – an historic institution of racial paternalism, land theft, and ethnocide.

Marama Fox (Māori Party Co-Leader) was quite expressive in the “Great Debate”

Given their viewership, it is less significant that Native Affairs addressed structural issues, so neglected in the mainstream, than that they took that as a starting point for a narrative that herded people back into alignment with mainstream thinking – like a sheepdog ensuring our wayward brains don’t wander too far from safe pastures.

First they identified the empirically proven drivers of incarceration as being poverty and poor education. Crucially they assert, without the same evidential backing, that “in Aotearoa cultural disconnection is a third factor.” They may or may not be correct in this. As I will discuss later it is not whether the latter is true or not that is at issue, but rather the way in which adding the element of cultural alienation sets up a narrative centred on the individual offender. It is a path back to old habits of thinking; the modern equivalent of the 19th century Samaritan’s self-righteous efforts to save the souls of the benighted sinners who have fallen from the Godly path of lawfulness.

Soon after this introduction the programme also broaches the subject of structural racism in the justice system. Māori are more likely to be stopped by police. Under the same circumstances they are more likely to be charged. If convicted they receive harsher sentences and are more likely to be imprisoned. Cumulatively it is this layered racism that is probably the biggest factor in Māori imprisonment.

So if poverty, under-education, and racism among police and judiciary are the best known significant drivers of Māori imprisonment then a documentary should surely focus on changing social policy, ending structural and personal racism in education, reforming the police and judiciary. The prisoners (referred to constantly in the programme as “these people”) are not the real authors of their fate in this regard. Yet instead of having the intellect and the guts to embrace what the statistics tell us, the participants cleave to facile moralism – depicting the narratives of each prisoner as being driven by transgression and the consequences that follow from it.

The social science shows clearly that focusing on changing prisoners is stupid. It tells us unambiguously that we are not being honest about what acts do or do not deserve punishment and why we expect prisoners to embrace guilt, remorse, and the need to change themselves. People are married to the fictional reductionism of crime stories in books, TV, and cinema. Through constant sensationalism in the news people are made overly fearful of the capacity for violence among convicted criminals, feeling safer if they think that people are being locked away. This is a heuristic error that vastly exaggerates the ability of any prison system to enact what is called “specific incapacitation” by isolating the offenders from society. It also fails to account for the ability of the prison system to engender violence.

Native Affairs should have shown the efforts to reform those in authority, and highlighted where such efforts do not exist. The onus should have been on police, politicians, teachers and judges. We should have seen them struggling to overcome their racism and their moral and intellectual failings. Exemplars should have described their journey of overcoming their unthinking abuse. In the documentary we meet the victim of a cruel self-righteous and almost certainly racist judge. This judge ruined a young man’s life. He caused immense harm and pain. but where was that judge or one like him talking about their journey to redemption – complete with guilt and remorse for destroying futures, for ripping apart social bonds, and for wasting inordinate amounts of taxpayers money?

I am aware that our prejudices are deep. It is easy to see a tattoo-covered ill-spoken prisoner as a wrongdoer, but few people can envision the judge as being a dangerous and vicious parasite, profiting from suffering that they help perpetuate. Yet if you strip away our personal fears and our social prejudices; if you judge the judges on the fruits of their actions rather than their benevolent rhetoric and evinced good intentions, it is authorities such as these that need fixing, not our prison population. So, dear reader, I am going to walk you through some things. I am going to show you that incarceration and criminality are not strongly linked; and I am going to help you learn to fear and loathe the genteel. Regardless of the existence of individual dangerous prisoners, collectively those in prison are the victims of violent injustice, not the other way around.

Lipstick on a Pig

On the surface, The Opportunities Party has an admirably progressive criminal justice policy. They aim to reduce our prison population to half the projected number in 2027. There are two problems with this: arrogance and reductionism. The arrogance comes from presenting evidence already widely understood and proclaiming that other politicians are too stupid to get it. The reductionism is in reducing a complete socio-political problem to a single track of statistics without any sort of critical self-awareness. I don’t want to be unfair to TOP, who do link criminal justice to broader issues of poverty and inequality, but even that is a very narrow way of looking at much more profound questions of guilt and innocence; justice and injustice; transgression and obedience. The weakness of their position is easily demonstrated with a question: if it is so stupid and counterproductive to lock up 10,000 people, why do you want to keep 6000 people in prison?

TOP are trying to solve a “problem” without asking why it arose initially. Why are we so punitive? I have suggested that some of it comes from our colonial past, but it has a contemporary and historical scaffolding that exists independently of that. We blame our populist right-wing politicians fear-mongering at election time and emotive pressure groups like the Sensible Sentencing Trust; we blame talk-back radio and racist muddle-Nu Zillind, but it takes two to tango.

Our politics are not shaped by one side of a political divide, they are shaped by the way our political discourse divides issues into two vested camps and creates a static establishment orthodoxy that serves both.

While Hegel, followed by Marx and Engels, proposed that social forces create a dynamic “dialectic”, it is far more common in our time for “opposing” ideologies to become entwined in mutually sustaining inertia. Arrayed against the self-righteous sadists who demand that convicts must suffer are an equally facile bunch of liberal journalists, left-liberal politicians and NGO do-gooders who (by choice or by constraint) are mainly about looking as saintly as possible without really rocking the boat.

Our problems run much deeper than the attitudes of right-wing people. The rituals that surround our criminal justice system should be a clue that something is wrong. Rationality does not need to don special robes and use dead languages to give itself gravity. The system itself is not a measured and enlightened social institution, it is a quasi-religious instrument of authority. On close examination it maintains a strange irrational pretence of omniscience and still functions as if the court and the judges within it were touched with divine power.

Fixing our criminal justice system will require much more that a white-hatted technocrat Sheriff riding in on his high-horse to tell all us dumbshit yokels how to live our lives. The problem with people like Gareth Morgan is that their disdain for the intellects of others makes them incredibly naïve about social institutions. Just because a given institution purports to serve a given function that does not mean that that is it’s sole function, or main function, or even a real function. Some social institutions do the opposite of their pretended function. To put it another way, Gareth Morgan wants to put “evidence-based” lipstick on a pig that he is too stupid to smell.

Controlling and Punishing Social Inferiors

Our institutions have multiple historical roots but the tendency to echo the past (even when we can see clearly how inhumane and unjust the past was) has to be explained in contemporary terms. We are not so different than our cruel, stupid, superstitious and hypocritical forebears and much that we think of as the cast is actually still as much with us as it has ever been.

To begin with there is the religious and pseudo-religious moral impulse to view matters of criminality as an expression of sin – a form of moral transgression. This comes from the belief that the law is a moral framework and even when it fails to be so obedience to the law is a moral imperative in itself. This is an authoritarian viewpoint that is not actually morally sound. It is an irrational impulse and you do not have to delve too far into history to see that morality and obedience to the law are distinct and may be at complete odds with each other. By consensus we now recognise many laws from different places and times as immoral – for example, race and gender legislation that make chattels of racial groups, wives and daughters; apartheid laws; or the Third Reich’s racial laws.

Then there are the politicians, bureaucrats and social workers who see their jobs as being the imposition of their will on the behaviour of others. At base any attempt to change an individual or group of individuals is an attempt to control those persons through the exercise of one’s own will. This may be both a personal inclination that attracts people into positions of such power and a situational product of our institutions of power. Our society hands people in these situations hammers and instructs them to treat certain individuals as nails. For example, social workers may as a group lobby for social change, but their day-to-day hour-to-hour activity is to try and change individual people however futile that may ultimately be in the bigger picture. By contrast, some politicians have a clear pre-disposed inclination to enjoy exercising power over others. Bill English was recently asked what cause he would take to the streets to march for, and he responded that he would march for the right to govern us. This is just a small glimpse into the state of derangement that veteran senior politicians fall into. They do not see governance as the exercise of shaping institutions in order to allow the will of the people to rule, but rather see governance as creating and using institutions to control and “govern” the people. To them that is what governing is, and they see no contradiction between that and what they refer to as “democracy”.

These contemporary controlling impulses find rich and fertile soil to flourish in our inherited criminal justice system. Centuries of penal reform have changed the sharp brutality of sadistic 18th century barbarism, into the duller grinding inhumanity of today. The criminal justice system that we have today may be the most gleamingly polished turd in human history, but underneath it is still an inherited institution of class warfare (repurposed to serve also as an instrument of racial oppression).

When the historian George Rudé examined early 19th century English “criminal justice” system, he found an institution devoted to perpetuating the social order of class and ethnic division, not an institution of “justice”. This was occurring at a time that saw an increasing conflation of poverty and criminality. The enclosure of common land and the loss of small-holdings, along with agricultural reform and industrialisation, had seen a growth of poverty in England and a breakdown in the medieval “Poor Laws”. Not coincidentally, this era saw the creation of the first professional police force. Many of the lower classes were transported first to North America and then to Australia and there was not a great deal of distinction between committing a criminal act and being criminalised and punished due purely to indigence.

The end of the transportation era saw the rise of a three-part system of prisons, debtor’s prisons, and workhouses. The workhouses were cruel and exploitative. The clear, if irrational, ideological foundation was that the poor must be made to suffer if they were to receive sustenance. The moralism of the era demanded that they redeem themselves through suffering, tinged by Calvinist beliefs that poverty was a sign of sinfulness and God’s disfavour.

Trapped in the “Safety Net”

Social reformers worked to end this inhumanity, and seemingly they succeeded. Yet they did not succeed as well as they might have hoped. Decades after the abolition of workhouses George Orwell lived the “down and out” life in England and what he found was a new form of cruelty and a new way of trapping people in poverty. Those who sought shelter and nourishment were forced to prove that they were not merely lazy scroungers living the high life at the expense of their betters. Thus they were forced to remain imprisoned in locked cells for their shelter and then forced by law to walk many hours to get shelter for another night. Needless to say they could not work and could not have social or family connections. With no way of earning money their attire, and particularly footwear, was appallingly poor for those who had to spend each and every day walking and exposed to the elements:

One could not, in fact, invent a more futile routine than walking from prison to prison, spending perhaps eighteen hours a day in the cell and on the road. There must be at the least several tens of thousands of tramps in England. Each day they expend innumerable foot-pounds of energy – enough to plough thousands of acres, build miles of road, put up dozens of houses – in mere, useless walking. Each day they waste between them possibly ten years of time in staring at cell walls.

It was an expensive and self-defeating exercise. The sadism of it was less newsworthy (or Dickensworthy) than the workhouses, but was it really much better? Things may have improved now, but maybe not as much as people think. In many ways we are slipping back. Poverty and its effects are intensifying and incidents of people trapped in implacable cycles of futility and suffering are on the increase.

We have never gotten over the idea that those who need help can and should be controlled. We think it acceptable that unemployed beneficiaries should be drug tested (and sanctioned for failing) and an overzealous campaign against “contamination” has seen many people lose tenancy in social housing due to traces of methamphetamine being found. Effectively that means that the less fortunate in society have a greater degree of state control in their lives than the more fortunate.

Many people undoubtedly think that it is beneficial for the unfortunate to have the guiding hand of a benevolent state to guard them from their own self-destructive impulses. It is for their own good, after all. In reality that is as much of a self-righteous delusion as the Victorian missionary’s belief in reforming the sinner. There is an increasing recognition that the neoliberal state systematically produces homelessness and that forcing special conditions on recipients of housing or other welfare acts to reproduce the vicious circle enforced on tramps in Orwell’s time.

One response to the structural injustice created by neoliberalism is the movement known as Housing First. Even PM Bill English proudly claims credit for “Housing First” initiatives. Unfortunately English is about as capable of grasping the essence of Housing First as Vlad the Impaler would be capable of grasping Nonviolent Communication. In theory, though not as it is widely practised, Housing First is supposed to provide unconditional tenure. Yet under 3 terms of National Party government, with English as leader or deputy, the government’s own social housing agency has been going in the opposite direction.

Neoliberalism reproduces the trap enforced on Orwell and his down-and-out compatriots, but with a much greater masquerade of benevolence. It actively encourages the underlying cause of social ills through deregulation, austerity, erosion of worker conditions and the devaluation of labour in relation to capital. Neoliberalism helps poverty, precarity and socio-economic exclusion to flourish, encouraging the disease but making a show of treating the symptoms. The long walks and the cold cells of 1930s England are replaced by the equally futile system of grants and supplements, constantly exposing people to a capricious and arbitrary system where they must pointlessly engage in a bureaucratic struggle to gain the money and service required to live in a system that is designed to give minimal support. The basic “safety net” support is insufficient in itself and yet is still contingent on conditions and impositions that can be extremely difficult for destitute people to live up to.

On the Native Affairs programme they revealed that the Howard League works to get inmates their driver’s licenses. This is a crucial and worthy effort, but it is a piecemeal step. The need for a driver’s license is a symptom of poverty, social exclusion and racism in the education system. It is not the only barrier affecting inmates and if they have to keep reaching out for help over each thing the process itself becomes demoralising and debilitating.

We have begun to have real conversations about the reality facing those on benefits today, and with luck that will continue, but for the last 40 years the gravitational pull has been to become ever more and more aligned with the US. By withdrawing support from the most needy due to infringements of a pseudo-moral code of behaviour we risk following the US footsteps of creating a criminalised underclass, a “school-to-prison pipeline” and a racial caste system. In many aspects the US is already in a Dickensian state. For example, Eric Garner, who was killed by NYPD, was a career criminal who lived by breaking the law – he sold loose untaxed cigarettes and lived off the meagre profit margin. He wasn’t selling them at the time of his killing. He wasn’t even on his normal turf and was doing nothing wrong, but a cop recognised him from his own neighbourhood. Garner got angry at being harassed when minding his own business, and the police reacted with brutal and escalating violence that intensified when Garner was struggling for his life.

It feels as if we are not far away from the point where we too will tolerate the life and death of our own Eric Garner, seeing both the “criminal” and the poor person as somehow less human, not worthy of a right to a dignified life and ultimately not even worthy of a guaranteed right to life of any sort. In the NZ Herald Paul Little has recently asked how Dickensian we have become:

Under the so-called three strikes law, Raven Campbell, a prison inmate who pinched a guard on the buttocks – his third offence – was sentenced, as that law required him to be, to the maximum term of seven years jail.

Social housing agency Tamaki Housing issued an eviction notice to the five children of Mabel Pe just weeks after her death. They were given three weeks to vacate the home where they had lived for 10 years.

Housing New Zealand issued an eviction notice to a family of seven, including two blind children, after their grandmother died. [3 of the children also suffer PTSD after losing a mother to cancer and a father to suicide shortly thereafter.]

In the last quarter of 2016, the number of people applying to Work and Income for hardship grants to buy food was 112,000 – an increase of 14 per cent over the equivalent period in the previous year.

Wendy Shoebridge, who was discovered dead in her home the day after she was told she faced charges over benefit fraud, was later found not to have committed any fraud, according to evidence presented at the inquest into her death.

We are seeing the rise of conditions of ever greater social division, a restructure in the relations of capital to labour and a massive upward redistribution of wealth. The transformation is akin to that of the mid-19th century, described by Karl Polanyi as The Great Transformation, and the response of our welfare and criminal justice systems is the same. It is not to ameliorate the conditions of those who are suffering the most under the change, but to preserve the social order. In effect this usually means inflicting greater suffering, hence the rising prison populations and the growing precariousness of those on benefits. If we don’t face up to those facts, how can we hope to make things better with our evidence-based culturally-sensitive “progressive reforms”. Quite apart from the fact that much of the “reform” only seeks to get incarceration rates back to where they were decades ago we cannot hope to effect positive change if we do not face up to the in-built malevolence and injustice in the system.

Crime Rates and Imprisonment Rates are not the Same Thing

To return to Native Affairs: Almost immediately after having established that Māori are imprisoned at rates disproportionate to their offending, without skipping a beat the narrator of “Locking Up Māori” reverts to the mindless conflation of imprisonment and crime rates, almost as if the journalist is incapable of processing the meaning of what is coming out of her own mouth.

The disconnect between crime and punishment is something that we as a society are not dealing with at all. It is far greater than the disparity in offending rates and imprisonment rate between Māori and Pākehā because there is also a massive class dimension that reinforces the racial dimension. Everything about our notions of crime is freighted with class disparity.

To begin with there is a much larger problem of prejudicial enforcement than merely who gets stopped by police more when driving or walking. Whole sectors of society are virtually invisible to law enforcement when it comes to certain sorts of crime. Most notably, bourgeois and wealthy people can reliably get away with committing drug offences. Many politicians have used illegal drugs, but few of those oppose prohibition. They are not volunteering to be punished themselves, but they are happy for others to be punished for doing the same thing they were not punished for.

The system is incorrigibly unequal and unjust. Ironically, many prisoners are victims in childhood or adolescence of serious criminal offences against them. Many, as we now know, were abused while in state care. Repeated offences of sexual abuse and severe physical abuse against vulnerable children in one’s care are amongst the most serious crimes we can imagine, yet those who perpetrated such heinous offences are afforded effective impunity while the victims often end up imprisoned for far less grave crimes.

Our need to see certain infractors punished is shaped far more by our sense of social order and hierarchy than it is by legally defined criminality. Researcher Emily Baxter conducted research for a project she called “We Are All Criminals”. In interviews with people she draws out the crimes they have committed and maybe spared little thought for because they suffered no consequences. She then gets them to reflect on how their lives might have been different had they been apprehended and reflect on the role that class and race play in making the difference between what might have been a youthful adventure for them, but could be the start of a descent into social exclusion for others.

The fact is that we are all criminals. Only a miniscule number of people have not committed crimes that individually or cumulatively could bring about a custodial sentence. If you think you are one of the rare innocents, then you probably need to interrogate you memory more vigorously.

There are also crimes which are hard to detect and prosecute. Nobody disputes that rape is a very serious crime, but the great majority of rapists will never see the inside of a court, let alone a prison. We accept that reality because we cannot change it, yet it is hard to say how it can be just to imprison a minor thief or a cannabis user when rapists walk free far more often than not.

Further still there is the massive disparity in prosecution and even in the legal status of equivalent crimes that corresponds with differences in socio-economic status and power. The most obvious example at the moment is the disparity between those who commit tax evasion and those who commit benefit fraud. Tax evasion costs the government 33 times as much as benefit fraud, but the response is the inverse of what should be rational. Academic Lisa Marriott gives us these points:

  • We investigate a higher rate of welfare recipients than taxpayers. Around 5 percent of welfare recipients are investigated in an average year, compared to around 0.01 percent of taxpayers.

  • We have greater numbers of criminal prosecutions of welfare fraudsters than tax evaders. In a typical year, there are 600–900 prosecutions of welfare fraudsters and 60–80 prosecutions of tax evaders.

  • A higher proportion of prison sentences are given to welfare fraudsters, for a lower level of offending, compared to tax evaders. For an average level of offending of $76,000, 67 percent of welfare fraudsters received a prison sentence. For an average level of offending of $229,000, 18 percent of tax evaders received a prison sentence.

Marriott also compares two cases: “To summarise: welfare fraud of $3.4 million, where all was repaid (and more [$6.7 million was paid]), resulted in 10 years in prison — while white-collar crime of $4.3 million, where none was repaid, resulted in less than two years in prison.”

Another disparity is in the treatment of employers who steal from employees and vice versa. “Theft as a servant” is considered very serious because it is a breach of trust. Stealing from your employees, though, is a different story. I guess the logic is that because employees don’t have a choice to entrust their wages to their employer there is no breach of trust when the employer steals from them. Wage theft is commonplace in Aotearoa yet criminal penalties such as imprisonment, home detention or even community service are unknown. There is a push to impose criminal penalties such as prison on offenders, but not because we treat all other thieves in this manner, but because the offending is now reaching such a level of exploitation that it is linked with enslavement – yes, enslavement, another thing we could not have imagined happening here even ten years ago.

Stealing hundreds of thousands from people poorer than you, who have no choice but to trust you, and whose labour is the source of your own wealth isn’t even treated as criminal. That is how fucked and how biased the system is.

And then there are those who more or less get to decide for themselves what the law is and whether or not they are allowed to steal from others without penalty. Meteria Turei, co-leader of the Green Party, bravely admitted to having lied about having flatmates in order not to lose some of the benefit she received while she was a single mother studying law. This was to raise awareness of poverty and precarity. She was hounded by the media relentlessly and felt compelled to resign just a week and a half after Andrew Little’s resignation (another party leader resigned the next week, by the way, just to keep the journalists on their toes). People asked why Turei had to go for taking a small amount so that she could afford to raise a child, while our wealthy PM Bill English took much more by deception. A “fact-check” assured people that Turei was naughty, because she broke the law, while English did not. Simon Wilson then “sense-checked” the fact-checkers comparing the crimes of Metiria Turei with the perfectly legal acts of PM Bill English who claimed hundreds of thousands of dollars as a member of Parliament in order to cover the cost of living in a place he clearly did not live. Some of Wilson’s conclusions:

  1. Bill English must have known that he and his family did not live in Southland. But the system allowed him to pretend that they did, and he took advantage of that.

  2. He got away with it by arguing that his lawyers had told him it was OK.

  3. When he was found out, the system continued to protect him.

In fact, as Wilson further explains, the legality of the acts was not actually tested strongly: “He denied he had broken the law and the auditor general agreed. She appears to have been particularly persuaded by the fact he had relied on legal advice that his position was tenable.”

But wait, there’s more! Because ultimately the most criminally guilty people in the world don’t just go free, they are rewarded for their crimes. The worst criminal bankers on Wall St and in the City of London are not jailed, they are paid handsomely to retire, to stay on, or to work in government. Corporations can become a law unto themselves, causing thousands of deaths in Third World countries though pollution or using government forces to massacre  those who stand between them and profit. From the days of United Fruit in Guatemala, to Shell’s involvement in the slaughter of people in the Niger Delta. No criminal charges.

Nor are there charges for murders carried out by the CIA, let alone other crimes. The whole existence of the clandestine action arms of agencies such as the CIA is based on lawbreaking. One old pre-digital estimate suggested that the CIA was committing crimes at a rate of 80,000 per day, dwarfing any non-governmental organised crime outfit. With computerised surveillance there is a near unlimited potential for individual crimes to be happening at dizzying speed.

Then there are the mass murderers. Since the death of Stalin, those with the most blood on their hands have mostly been Western political leaders. Johnson, Nixon, Kissinger – even Ford and Carter – Brzezinski, Reagan, Thatcher, Bush(es), Clinton, Blair. It is estimated that 20 million have been killed due to US-led aggression since World War II, frequently with crucial UK participation. They also have high levels of involvement in other acts of mass-murder. They backed the slaughter of 1 million in Indonesia and the subsequent genocide in East Timor. They gave diplomatic cover to the genocide in East Pakistan (now Bangladesh). They trained and backed those carrying out the genocide in Guatemala. Third world dictators cannot even compare in terms of the number of dead they have caused. Yet Henry Kissinger, perhaps the biggest murderer of them all, is a fêted elder statesman, treated like a rock star guru by the political elite. These people are by any reasoned standard more despicable and fearful than the very worst of our prison population.

So, when you see the stats that show that social forces such as racism and poverty are the main causes of imprisonment, do not immediately think, yeah, but people need to be held accountable for their actions. The worst people in the world are not held accountable for their actions. Normal people are not held accountable in the way that those who fall foul of the criminal justice system are. It is a capricious system full of racial and class prejudice and rampant injustice

Argument from Consequences

As mentioned, the Native Affairs programme that fulfilled my low expectations of journalistic endeavour included “cultural disconnection” as an unproven third factor driving Māori incarceration. How much it is true that “cultural disconnection” causes imprisonment is definitely an interesting topic, but in the programme it becomes the central factor – the focus of the programme’s call to action. Without seeming to be aware of what they were doing, the makers of the programme use the topic of “cultural disconnection” to leave poverty and poor education as background factors in a narrative driven by notions of individual reform.

There is certainly something quite powerful in the question by one prisoner who asked why it took coming to prison for him to find out about his own identity. The colonial system literally stole the sense of self from many Māori and it is heartbreaking that it might take imprisonment for some of those to benefit from reconnecting. But now the viewers have been taken back into their comfort zone, the place where no one can see the forest because they are too busy looking at all the trees. Unlike those factors of class and race which allow for the actions of others to be a cause of imprisonment, “cultural disconnection” can only be interpreted as a cause of criminality in the prisoner themselves. The notion leads us back to the belief that it is still their criminal transgression that drives their fate and what we really need to do is to help them to stop being so angry and naughty.

It is as if the journalists are programmed by cliché. They will always find a way back into the comfort of tinkering reformism that maximises the sense of doing good but minimises any real clash with the status quo. In this case, cultural disconnection brings the focus right back to criminal acts by prisoners. It is actually a little bit ridiculous, because as wonderful as it may be for Māori inmates to connect with tikanga Māori, it is not why they are in prison and nor should they be penalised if they do not want to embrace Māoritanga. When you get right down to it, they are suggesting that you can fix a racist system by getting the victims of racism to change, not the racists. There is an obvious parallel here to those who think that the way to prevent rape is for the potential victims to alter their appearance and behaviour.

Yet people seem to find it impossible to let go of the notion that prisoners have personal responsibility for their fate. To be reformed they must go through the ritual of penitence and agree that it is they that must transform. It is true that, apart from those wrongly accused, they must have contributed at least one “wilful” criminal act to find themselves behind bars, but between the disparities in policing and sentencing we can see that in most ways the criminal act is not the greatest factor contributing to the imprisonment.

It is tempting at this point to separate violent from non-violent offenders. Then, in pragmatic terms, we could abolish drug prohibition and end custodial sentences for non-violent crime. That would lower prison populations and instantly curb the worst injustices coming out of the racial biases of the criminal justice system. But as much as I feel that drug prohibition is morally insupportable (and that too is a conversation that needs to be dealt with in full) I also think that blunting the worst excesses of an unjust system still leaves an unjust system.

The fact is that even in committing a criminal act an offender is acting as a product of circumstances beyond their control. People resist understanding this, but it is abundantly clear in the statistics. In violent offending, the unchosen circumstances of birth and upbringing are clear predictors. Growing up exposed to and especially victim to violence does not always mean that a person will become violent, but it is such a strong statistical association that it cannot be ignored. And there are other factors such as sensory deprivation in infancy, exposure to lead and other toxins, traumatic brain injury or other neurological conditions. The more we study the factors that influence behaviour the more we must admit that we are all products of circumstances that we do not control.

It is not just the social sciences that problematise our punitive understanding of criminality. While many philosophers still try to justify the existence of free will, neuroscientists are increasingly able to pinpoint the chemical processes of decision-making. If someone spikes you with a drug it will affect your decision-making. If someone controls the information you receive, it will affect your decision making. If you are abused as a child, it will affect your decision-making. Free will is a delusion. Even our current understanding of physics suggests that the universe is shaped by stochastic (individually random and unpredictable) subatomic events. Because these shape the real world and ultimately affect our lives it is impossible to reconcile the nature of the universe with free will.

Free will was an excusable explanation for a complex phenomenon in the same way that explaining lightning as bolts cast by a god was excusable before the process was properly understood. It makes sense that we would feel that free will exists even without proof, but it is a religious concept not a rational concept. Basing criminal justice decisions of the concept of free will ultimately makes no more sense than treating criminality as demonic possession. Yet the concept of free will underpins our notions of criminal culpability.

We cling on to a model of individual guilt and just punishment because it works so well with our emotions and social conventions. When bad things happen we want a sense of reciprocity and we also want to feel protected from those who might threaten us. On the more sinister side, we also have a tendency to persecute those who are perceived as alien, defective, diseased, or just a burden to our social collective. This is nothing to do with justice. On the contrary, it is one of the ways our evolution has sowed within us conflicts between compassion and brutality; xenophobia and solidarity; inclusion and exclusion.

Our sense of reciprocity, however, is perhaps the greatest impediment to a more enlightened approach because this innate tendency is bolstered and magnified by the narratives in which we constantly immerse our consciousnesses. I refer here to books, film, TV and so forth. In our stories transgressions seldom go unpunished, guilt is seldom in doubt to the reader or viewer, and there is almost always the implication that somehow the punishment ends the narrative arc, tying up the story with a nice little bow. However, this is not just true in fictional narratives, it is also the structure used almost exclusively in news reporting and documentary.

In reality neither safety nor reciprocity can be achieved through the criminal justice system and social exclusion is both undesirable and harmful. Despite this, they are powerful desires and the reason we cling to the idea of free-will is that without free-will we cannot have individual criminal culpability. Without that sense of culpability, we cannot package reciprocity, safety and social exclusion as a function of “justice”.

We cling to the idea of wilful individual responsibility when logic and evidence both tell us it is a delusion. We do not want to deal with the consequences of not having the ability to pronounce guilt because it would deprive us of our ability to see the criminal justice system as having inherently positive outcomes.

Ritual Sacrifice

There is something disturbing about the way we as a society created a sudden and new official Truth once a judge or jury has pronounced guilt. Suddenly doubt is officially banished, facts are certain.

There is a time between the verdict and the sentencing when the convict becomes a species of outlaw. Their penalty and path back to citizenship is undetermined and actions which are not crimes may affect their penalty as much, or more, than the actually criminal act(s). This outlaw status, by some mysterious rationale, becomes retroactive. Everyone has a right to deny charges against them without penalty, but once they are found guilty a magic time machine allows judges to reward “early guilty pleas” because the special powers they have make everything fair (and apparently there is no contradiction at all in discriminating in favour of those who admit guilt because it is not the same as discriminating against those who maintain their innocence).

It is just as problematic that once guilt is established there is an expectation that the convict must now align themselves with the official Truth and make a ritual obeisance before the court by admitting guilt and expressing remorse. This is not a rehabilitative process and it is not a parole hearing, this is part of the sentencing, so it is actually quite difficult to say, in terms of justice, why remorse at the time of sentencing is so important. The practical effect of coercing a show of remorse from a convict is that it forces that person, and often their supporters, to readjust their narrative and to reify the Truth established by the court.

One of the strangest parts of the ritual, from my perspective at least, is the breadth which judges give themselves in rendering judgments. At this point in the proceedings there can be no objections or arguments. It is pure soliloquy. It is quite normal for judges to tell those found guilty what their motives were, what they were thinking, and what they feel currently, as if the judge were some form of omniscient telepath.

As with everything here, I do not have to delve deep into the past to find exemplars. A case I find problematic is that of Gustav Sanft who killed his 2 year-old daughter. At sentencing just a few days ago as I write his wife pleaded: “I know people want to see Gustav punished for this accident, I see it everyday in him that he punishes himself. All I can ask is have mercy on Gustav. Our babies need their daddy at home, that is where he belongs.” The judge, however, decided that Sanft was not experiencing real remorse but rather “self-pity”. He sentenced him to 4 years and 4 months imprisonment.

The judge said: “Your denial you pulled the trigger is something you have latched onto, perhaps to help explain to yourself, and others, the terrible consequences of that morning.” This leaves us with two unpalatable options. One is that the judge, despite feeling at liberty to characterise the mental states of others, is so ignorant that he is unaware of the effect of adrenaline on short-term memory. If Sanft did pull the trigger there is no reason at all to expect that he would remember doing so. The other option is that the judge doesn’t actually care what Sanft believes. Either way, the emphasis on this detail is disturbing. The prosecution did not rely on his having pulled the trigger and the jury’s verdict does not confirm the fact.

If Sanft were more calculating and cold-blooded he might simply have told the judge what he thought the judge wanted to hear. Ultimately he cannot be considered more guilty of the original crime because he refuses to admit to something he may not even remember. I cannot say what sentence might have been given if Sanft had admitted the act, but the judge himself has made it seem that a very important factor in sentencing is submission to the judgment of the court. It is hard not to feel that what is required of Sanft is not completely different to an auto-da-fé – the public penance required and coerced from those condemned by the Inquisition which reinforced to onlookers the righteousness and honesty of the convictions and subsequent punishments.

Michel Foucault opens Disclipline et Punir with the horrifying theatrical spectacle of the public execution by torture of an attempted regicide. Foucault made the case that the theatrics of power did not disappear with penological reform, they just became more regular and less overtly objectionable. In that much, at least, he is correct. Much of this ritualised display is a show of power designed to maintain and reproduce the power that is exercised.

The Disconnect

We understand that the outcomes of our criminal justice system are measurably and demonstrably bad. The individual stories of those caught in the system, though most people are blissfully ignorant of them, can be extremely harrowing. People’s punishment may lead to much greater suffering than the crime they committed. In most cases the family of prisoners suffer despite not having committed a crime, and the cost to the taxpayer is excessive – stealing from the sort of spending that might be genuinely helpful to people.

We acknowledge these harms yet we seem to think that the basic system doesn’t need fixing. It has been more than 250 years since Cesare Beccaria wrote On Crimes and Punishments, and yet in many ways we have not yet lived up to his vision of a humane system in which punishments served rational utilitarian purposes. Perhaps it is an impossibility; punishment and humane rationality may not be not reconcilable.

We need to end the vestiges of noxious feudalism within our court system, but to do that we may have to go further. We need to end the fictions of guilt and innocence and the even more dangerous fiction that we can safely create an absolute Truth and justly act as if doubt does not persist. We need to move beyond our primitive senses of vengeance and reciprocity and recognise that punishment is never just.

We need to abolish prisons. It may be that some people must be specifically prevented from harming others, but in the vast majority of cases we know that imprisoning some people is not a way to prevent harm.

Even in a case of “preventive detention”, which aims at the specific incapacitation of those who are deemed an unavoidable danger to others, we have seen recently that the criminal justice system may enable crime instead of preventing it. In another NZ case that was in the headlines just days ago, a man who had been sentenced to preventive detention after having been convicted of raping (on separate occasions) a woman and a girl was found to have subsequently raped three cellmates. One was repeatedly raped for a week. Another was knocked unconscious and then raped. The man threatened to kill his victims and told them he had nothing to lose because he was a “lifer” due to his preventive detention sentence. In other words the attempt at incapacitation seems to have actually become a factor leading to the violence.

The double-bunking that facilitated these rapes was introduced under Minister Judith Collins who dismissed concerns over rape, then later made a prison rape joke (as did the PM of the time John Key). These details reveal that the most “law and order” minded people are ultimately, if unconsciously, concerned about social order, not justice. The very reason that they are so assured in their “tough on crime” stances is that they have a Manichean view of Us “good” people and Them “bad” people. Such people often commit crimes, quite serious ones, but they don’t consider themselves to be criminals. Criminals are the racial and class Other. The baddies from the cop shows.

Prisons are mechanisms of social control, one of the ways that the neoliberal state is keeping lower class people in their place as the system begins to fail them. You might think that if we get rid of prisons, change the court system, and if we stop singling out some as the officially Guilty, then we will have a sense of broad impunity that will lead to a lawless orgy. It is a challenge, true. Yet we are almost all criminals, and we accept as a matter of course that those who have committed the most heinous acts must continue to live among us. Some, particularly rapists, will never even have to talk to a policeman. Some may be acquitted because of reasonable doubt rather than innocence. Some will have been convicted, but apart from a very small number who die in prison, those people will still be part of society. Prisons can’t change that. They can and do make things worse in a number of ways.

The problems of the criminal justice system, and the politics and power behind the discourse of criminal justice, are absolutely pervasive. I can almost take exemplars from the headlines of any day on which I write on the issue, and indeed I did so. There is no cherry-picking here, this gross injustice is the daily reality of our society and it needs to change.

This has been my idiosyncratic argument for abolition; born of my frustration at the half-arsed bullshit that journalists keep spouting; born of my frustration at all the things never talked about, the assumptions and the complacency. I hope it adds new dimensions, but I should also point out to readers that there are far more developed views out there. Abolitionism has a very long history with many renowned proponents such as Emma Goldman, Nils Christie, Ruth Morris and Angela Davis. I urge readers to engage with the prison abolition movement, including People Against Prisons Aotearoa. The costs of not abolishing prisons are growing.

Kieran Kelly blogs at On Genocide.

Read other articles by Kieran.