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Does New Zealand’s use of imprisonment breach the New Zealand Bill of Rights Act? BY LIESLE THERON

In New Zealand a person can be sentenced for one or more of the following purposes under the Sentencing Act 2002: accountability of the offender, responsibility for and acknowledgement of harm by the offender, to provide for the interests of the victim, reparation, denunciation, deterrence, protection of the community and rehabilitation and reintegration. The Court of Appeal has said that deterrence is a “fundamental requirement” and a “primary sentencing objective”. But what is the evidence that imprisonment, and in particular imposing long prison terms, furthers deterrence, or any of the Sentencing Act purposes? In the absence of good evidence, how can we justify this very significant incursion on one of the most basic human rights, and the associated costs?

New Zealand has one of the highest imprisonment rates in the OECD A 2016 Ministry of Justice study found that 71% of respondents thought national crime rates were increasing. Since the 1990s, crime rates in New Zealand have, in fact, declined so that they are now lower than in the 1970s. In the same period, incarceration rates have shot up so that by 2018, New Zealand imprisoned more people per capita than any other OECD country, save the US, Turkey, Israel and Chile. New 36

Zealand imprisons over 200 people per 100,000; the OECD average is below 150. Between 1998 and 2017 the number of people in New Zealand prisons almost doubled. The total cost of operating prisons has correspondingly doubled since 2005, and tripled since 1996. Many studies confirm that there is low correlation between crime rates and imprisonment, over time and between jurisdictions. So it is not plausible that this increase in use of imprisonment has caused the decrease in crime rates in recent decades. The costs of New Zealand’s imprisonment of such large numbers of people are enormous and troubling. In addition to the direct financial cost of over $100,000 per prisoner per year, there are very significant costs to society in terms of lost jobs, inability to secure jobs in future, adverse health impacts, harm to families and increased recidivism. Māori have borne the brunt of the human cost, with devastating consequences.

No evidence that lengthy sentences rehabilitate, deter or increase protection for the community In R v Wellington [2018] NZHC 2196, Palmer J drew attention to the absence of evidence that long prison sentences deter reoffending. The President of the Court of Appeal has spoken publicly about the growing

concern that imprisonment, and longer prison terms, are likely to increase recidivism. An assumption that underlies much of the rhetoric in this area is that imprisonment prevents offending by prisoners, and this protects the public from crime. But 2016/2017 Corrections figures suggest that over 99% of those imprisoned will be returned to the community. Research increasingly suggests that, while imprisonment may reduce an individual’s criminal offending (outside the prison walls) as long as that person is in prison, at best it has no effect on reoffending later and often results in a greater rate of recidivism. The threat of imprisonment generates a small general deterrent effect and increases in the certainty of apprehension and punishment demonstrate a significant deterrent effect. But increases in the severity of penalties, such as increasing the length of terms of imprisonment, do not produce a corresponding increase in deterrence. Imprisonment also has poor rehabilitative effects. Those involved in the sector have expressed concern that prison criminalises people and erodes their ability to contribute positively to their society. This has implications for the likelihood that they will reoffend, as well as their communities’ resilience and productivity. To the extent that specific rehabilitation programmes can be shown to have an effect (and any

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