How the lockdown unlocked 800 prisoners

Kris Faafoi: Minister of Justice

Since the Labour led coalition came to power, the prison population has dropped from a peak of 10,820 in March 2018 to 8521 in December 2020. That’s a drop of over 20% – well on the way towards the target of 30% promised by Andrew Little – which he said would take 15 years.

It’s not entirely clear how this reduction has been achieved. In response to an OIA on this issue, in September this year, Corrections replied:

“The reduction in the prison population is a multi-agency effort that spans the criminal justice system. Determining the cause of a decrease in the prison population is a complex exercise.”

However, the Ministry of Justice gives most of the credit to the coronavirus lockdown. MOJ spokesperson, Anton Youngman, told Stuff the remand population dropped by about 800 during alert level 4. It seems even crims were afraid of catching Covid-19 and stayed home.  Less crime was committed and many court hearings were postponed, so judges had less opportunity to remand offenders in prison. Even under alert level 1, judges were aware of the risk of infection in prison and more people were remanded on bail instead of into custody, compared with before Covid-19.

Time moves on. The borders are still closed but, for most of us (in New Zealand anyway), things are back to normal – which means everyone is free to commit as much crime as they used to. So when offenders are arrested, and the judge thinks they pose an on-going risk, the numbers on remand will go back up again. This is the view of the Ministry of Justice whose projections show that:

“The remand population is the primary driver of growth in the 2019 projection. The remand population has doubled since 2014. Over the last 12 months alone, the remand population has grown by more than 25%, reaching a historical high of 3,734 in November 2019. The 2019 projection estimates that the remand population will continue to grow (by approximately 2,500) and will make up 53% of the total prison population by 2029.”

Admittedly, the Ministry’s projections were based on trends prior to the coronavirus lockdown. But the lockdown is over, and a vaccine is just around the corner. So the upward trend in the use of remand is expected to continue.  This is the view of the Ombudsman, Peter Boshier, who has just released his annual report expressing his concern “over the growth of  people waiting in prison that have yet to be convicted of a crime”.  Justice is slow and some people have spent up to three years on remand, without being sentenced.

Where it all began

This crisis began in 2013 when the National government passed the Bail Amendment Act in response to the murder of Christie Marceau. At the time, it was expected to increase the number of people held in prison by less than 100. In fact, the Act raised the bar (to get bail) so high, that thousands more were remanded in prison each year. Unless that disastrous piece of legislation is repealed, judicial discretion is so limited that the prison system will remain under pressure.

So far, the Labour Government has shown little interest in addressing this issue. Instead, Cabinet has focused on repealing the Sentencing and Parole Reform Act of 2010 – known as the three strikes law. In 2018, Andrew Little announced his intention to get rid of this onerous piece of legislation which has been widely criticised by lawyers and academics. That attempt was struck out by Winston Peters. While Jacinda Ardern and Andrew Little were hamstrung by New Zealand First during their first three years in office, there was little they could do to address the profound levels of dissatisfaction experienced by those who work in, or are affected by, the justice system. When Labour won an outright majority in 2020, they promised to get rid of three strikes – this time for good – but made no mention of addressing the growing number of prisoners on remand.

Unfortunately, repealing the three strikes law won’t make much difference. Only 17 people have committed a third strike offence in the ten years the law has been in place – so it has little impact on the prison population. The vast majority of those on three strikes are not sentenced to the maximum time in prison anyway, because the law allows judges to avoid applying such a penalty if they believe that would be “manifestly unjust”.  So although the three strikes law needs to go, repealing it will not the crisis in remand.

To its credit, Labour now has a clear, unencumbered mandate. If Kris Faafoi, the new Minister of Justice is serious about justice reform, the first thing he needs to do is repeal the Bail Amendment Act 2013 and reduce the number of offenders on remand. That might get Labour somewhere near its goal of 30%. If New Zealanders were really serious about reducing the prison population, we could follow the example set by Finland which successfully reduced its prison population by 78%.