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families of those imprisoned and the disproportionate number of people on remand for lengthy periods.

Disproportionate impact on victims, and disadvantaged and minority groups The most vulnerable and disadvantaged members of society are disproportionately incarcerated. Most of those in prison are victims themselves. The March 2018 report by the Prime Minister’s Chief Science Advisor records that 77% of those in prison have been victims of violence, and 91% have a lifetime diagnosable mental illness or substance use disorder. Māori are significantly over-represented in the criminal justice system, making up 51% of the prison population (compared with about 15% of the general population). The position is even more extreme for Māori women: they make up over 60% of the female prison population. Pacific peoples comprise about 11% (compared with approximately 7.5% of the general population). Māori and Pacific peoples also form a disproportionate percentage of victims: they are more likely to be a victim of crime than Pākehā New Zealanders. These statistics also raise wider questions about the experience of indigenous people, minorities, victims and the poor and powerless of our criminal justice system generally. As a country which prides itself on its fair, tolerant and inclusive approach, we need to confront these issues. But in the meantime they underscore the need to urgently address how and why we are imprisoning so many people, at such enormous cost to society.

Impact on families and communities Even if New Zealand society’s urge for retribution and vindication justifies the impact of lengthy incarceration on offenders, can it justify the effect on their families and communities? The Prime Minister’s Chief Science Advisor’s 2018 report records that almost one in five of those in prison (19%) has a direct parenting role at the time they are imprisoned. This means that about 3,800 children currently have one active parent in prison. Another 20,000 have a non-active parent in prison. The effects of imprisonment on families, and particularly children, are still not well understood. In addition to the direct impact that many suffer of losing a caregiver, family income and in many cases, their homes, there are also dynamic, less visible and direct, consequences which play out over time. Evidence suggests that incarceration of parents leads to greater behavioural problems for children. Adolescents with incarcerated parents have a greater risk of mental health problems. Following a first offence, those whose parents have a 38

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criminal conviction have a greater risk of subsequent offending. As noted above, almost all these parents will have a pre-existing mental illness or substance-abuse disorder or will develop one in prison.

Disproportionate effect of remand A large proportion of those in prison are being held on remand (the figure climbed steadily to 30% as at 31 December 2018). When combined with the high prison figures, this means a very large number of people are held on remand. Average time on remand has increased to 66 days in 2017 from under 40 days in 2000. Many of these people will ultimately be either acquitted or given non-custodial sentences. There is reason to expect that remand is disproportionately costly to society in terms of its impact on individuals and the functioning of already struggling communities. Poorer people are less likely to meet bail requirements and are therefore more likely to lose jobs, custody of their children and housing while held on remand. They are also more likely to plead guilty to something they didn’t do, and face the life-long consequences of a conviction.

Does the law dictate this outcome? There is a real question mark over the extent to which imprisonment furthers the Sentencing Act purposes. This is routinely assumed, rather than being carefully examined in any given case. Even the reliance on prevention (while a person is in prison) as a justification does not appear to be based on evidence that the particular person is likely to reoffend unless they are incarcerated. The position is even starker in relation to length of sentence. There is evidence that lengthy sentences undermine purposes such as

deterrence, and rehabilitation and reintegration, and are very costly to society. There are also serious questions about their justification on retributive grounds given the questionable rationality of the relationship between particular sentences and particular offending, a comparison with other OECD jurisdictions and a clear picture of those disproportionately imprisoned. In these circumstances it seems likely that many sentences are inconsistent with the New Zealand Bill of Rights Act provision for freedom from arbitrary arrest or detention. Excessive, arbitrary or inconsistent use of imprisonment cannot be a reasonable limit on this right, which is demonstrably justified in a free and democratic society, as required by section 5. Irrational and disproportionate sentencing that is more likely to undermine the objective it is being relied on to further than it is to support that objective must fail both the requirement that detention not be “arbitrary” and the section 5 test. New Zealand’s high rates of imprisonment and the disproportionate impact on vulnerable people and Māori require a very careful examination of these questions. The excessive numbers of people held on remand for lengthy periods is even more problematic, given the presumption that they are innocent. It is far from clear that the legislation requires the approach that has been taken. If it does, then it is a good candidate for a declaration of inconsistency with the New Zealand Bill of Rights Act. ▪ Liesle Theron is currently on sabbatical. She is the convenor of the Law Society’s Law Reform Committee and a member of the Women’s Advisory Panel. The article reflects her personal views, and not those of any organisation.

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