Sweeping justice reform being called for. Programmes like this Papakura Marae Community Justice Panel give a glimpse of the future? (Originally published April 2018)

New Zealand is a tough on crime nation. And so its prison population soars even as its crime rate drops. Can the Government now pass evidence-backed reform? JOHN McCRONE reports.

It goes without saying. Criminals have often had a rough life. The school of hard knocks literally in a surprising number of cases.

Gathering evidence for a pending reform of the New Zealand justice system, Dr Ian Lambie – an Auckland University professor of clinical psychology and chief government science advisor – has been looking into the brain injuries and neurodevelopmental problems suffered by offenders.

One prisoner – in jail for murder – had quite a tale of childhood concussions.

READ MORE:

* 'A Vessel of Tears': Grief and colonialism at the heart of criminal justice experience, report says

* Government appoints another panel: To review justice system

* Andrew Little to UN: New Zealand is failing women and our justice system is broken

* More re-offending but less harm from marae-based justice scheme

He first split his head open and blacked out when he fell against a doorframe at age 8. His mother simply Sellotaped the wound shut.

A year later, during a playfight, he got whacked in the same spot by a broom handle with a nail sticking out. The nail went into the scar and he blacked out again.

Not long after, he managed to hit himself near the eye with an axe handle. Then as a teen, he was beaten about the head by three guys. In his twenties, he face-planted into a ditch off his motorcycle.

Lambie agrees these kinds of case histories take you aback. But his recent report to the Government – "What were they thinking?" – shows they are quite common.

A large slice of the prison population turn out to be victims of some kind of brain trauma or significant neurodevelopmental issue, he says.

His conservative estimate is that 10 per cent of the 10,000 men and women in New Zealand's jails have experienced a moderate to serious brain injury growing up – a concussion, and frequently multiple knocks to the head.

This is a rate four times higher than average. Forty per cent of the time it is from beatings, 26 per cent of the time from vehicle accidents. Evidence of rough lives.

ROSS GIBLIN/STUFF Research shows that many prisoners suffer hidden histories of brain injury and cognitive struggles.

And these sorts of injury can create subtle long-term effects on cognition and emotion, Lambie says. Lasting problems with concentration, fatigue and irritability.

But there is a higher representation of all types of brain harm, his study finds.

One Australian report on teens held in youth detention discovered a full third were sufferers of foetal alcohol spectrum disorder (FASD) – the damage caused to the developing brain by mothers drinking while pregnant.

FASD causes its own cognitive symptoms. Difficulties processing information, a sketchy memory, inflexible thought patterns, trouble with abstract conceptions of time and money.

Lambie says New Zealand has still to do its own research, but it has been estimated that FASD affects about 50 per cent of the children in the care of Oranga Tamariki Ministry for Children.

Then about half of all prisoners have diagnosable dyslexia. Half qualify for attention deficit hyperactivity disorder (ADHD) as well.

Lambie says even something as mundane as hearing loss – significant enough to create language difficulties – turns out to be seven times more common in young offenders. Untreated childhood ear infections being the usual reason.

So how often do we see people in the dock on TV and interpret their behaviour – shifty, bolshie, disengaged, just wanting to get it over – as proof they are simply a bad lot, asks Lambie?

But these statistics tell us other things can be going on. Those acting difficult and guilty might be in fact confused, afraid, unable to answer fluently.

"People will say I know someone who got concussion – fell off their bike, or were playing rugby. And, aw, I remember how it affected them. They had these moods. They slept a lot."

PETER MEECHAM/STUFF Dr Ian Lambie: Assembling the evidence for a fundamental rethink of a punitive system.

In the current debate about the future of the country's justice system, this evidence about the high rate of hidden neurological issues in convicted offenders becomes another important data point to consider, Lambie says.

THE SYSTEM IS BROKEN

New Zealand is going through one of its periodic attempts to do something about its punitive attitude towards those who fall foul of the courts.

There is a push for change. And also the usual worry that not a lot will change because law and order – especially in an election year – is always such a hot button topic for voters.

After the last election, Labour's Andrew Little became Justice Minister and announced an ambitious agenda.

Little was frank. Not sugarcoating things, he took the opportunity of an appearance at the United Nations Human Rights Council in Geneva to declare, "It's fair to say that our justice system is broken."

To build a platform for reform, Little called a national Criminal Justice Summit in 2018. This was followed up with the creation of Te Uepū Hāpai i te Ora – the Safe and Effective Justice Advisory Group – which was tasked to consult and deliver a set of policy recommendations.

As Chief Science Advisor for the Justice Sector, Lambie then provided a running series of background reports.

These looked at the sheer cost of the current "lock 'em up" mindset, the value of early intervention strategies, the contribution of family violence to the problems, and then, this January, the role played by brain injury.

The general case for change was argued in Lambie's first 2018 paper, "Using evidence to build a better justice system".

He highlighted the paradox that for what is supposed to be a socially progressive nation, New Zealand has one of the developed world's very highest rates of prison incarceration.

Sociologists suggest this perhaps has something to do with an exaggerated sense of fear.

Being a small place at the bottom of the world, with tight communities and relatively little else to worry about, we tend to overreact to the threat of crime.

But whatever the reason, Lambie says the statistics confirm we are punitively-minded.

New Zealand locks up 220 people per 100,000, compared to an OECD average of 147. This is more than double the rate of a progressive country with a similar crime profile like Finland.

SUPPLIED Pākehā incarceration rates are similar to Finland. For Māori, the rate is seven times higher.

Māori, of course, are particularly affected. They are 17 per cent of the general population yet 52 per cent of those in prison.

Pākehā incarceration rates are indeed "Finnish", at around 90 per 100,000, notes Lambie. However for Māori, it is seven times higher at 660.

And Lambie says it is a policy choice that the New Zealand prison population is so large.

Another crucial data point is that the national crime rate has in fact been steadily falling since the 1990s.

Better home security and smarter policing strategies make property crimes harder. A generally ageing population causes less trouble.

Lambie says it is true there has been a 12 per cent uptick in "Category 3" serious violence offences since 2013. But increased reporting of domestic abuse and the methamphetamine epidemic get much of the blame for this.

Generally Kiwis live in a safe country, says Lambie. And the biggest victims of crime are also those living in the most challenged neighbourhoods.

However perception rules. More than 70 per cent of Kiwis will still tell pollsters they believe crime remains on the rise.

So whenever another election rolls around, the country keeps voting for harsher penalties to take wrongdoers off the streets.

TWEAKS RATCHETING PRISON NUMBERS

Lambie says the public don't realise how even apparently minor tweaks to the justice system – like a tightening of sentencing or bail guidelines – can have a surprising impact on the national incarceration rate.

"For example, part of the recent growth in the NZ prison population can be attributed to tougher parole laws," he says.

SUPPLIED Ratcheting legislation: Regular tightening of the justice system has seen prison population soar.

A change in the rules means those with sentences longer than two years now serve out 77 per cent of their time rather than 50 per cent.

Lambie says this satisfies the call to be tough on crime. Yet in practice it cuts down the chances of rehabilitation.

Offenders are not out on licence under supervision in the community – learning to reintegrate – but instead stuck for even longer in the "criminogenic" environment of a prison.

"The culture inside prisons is hard to shift. And young people get highly influenced by the negative and anti-social peers they mix with."

And of course, doing more time inflates the prison population. Lambie says the parole changes alone have added 1500 of the 10,000 now clogging our jails.

Likewise successive tightenings of the Bail Act have resulted in more people locked up on remand. The number held awaiting trial has doubled since 2000. They make up 28 per cent of all those in cells.

Again, this is a punitive mentality, says Lambie. Even if eventually let free, people lose their jobs, are absent from their families, become stigmatised. It creates more problems than it solves.

Yet election promises get made and judges keep being left with less leeway. The constant legislation changes are estimated to have added 4000 to the prison total over the past 20 years.

And naturally, the cost of the prison system has also soared, says Lambie. Corrections funding has trebled since 1996, making it easily the most out-of-control element of public spending.

ROSS GIBLIN/STUFF Crown spending on law and order has shot up from $1.8 billion in 2004 to $4.6b in 2019.

"If you asked the average Kiwi what they'd like their tax to be spent on, many people would say education and health. But when you look at the statistics, you have to think how come we're spending so much on justice?" Lambie says.

TURUKI! TURUKI!

Penal populism – decades of tough on crime rhetoric – has bid up the settings of the New Zealand justice system. The question is whether Little can set in train the moves to bring them back down.

The Safe and Effective Justice Advisory Group has had the job of providing the high level policy recommendations.

In its first report – He Waka Roimata, or A Vessel of Tears – the group gave voice to the central issues after conducting 220 hui in 13 regions.

In its second delivered last December – Turuki! Turuki!, or Move Together! – it listed the necessary actions.

The chair of the panel, former National Party Associate Justice Minister Chester Borrows, says no-one inside the justice system is in doubt there must be significant change.

"With 10,000 people locked up in jail at any one time, 30,000 churning through our jails every year, and in a country with low actual crime rates, there is something really wrong here." Borrows says.

Three principles emerged from the consultations, although Borrows says these were already obvious enough.

Number one is that New Zealand policy needs to be evidence-based. Borrows says decisions should be based on the facts of what works to reduce offending, not by public emotion and calls for retribution.

Then early intervention is key. Borrows says everyone knows crime is mostly a product of life circumstance. "You can't look at the justice sector in isolation from wages, benefits, the economy, education, health and all of that sort of stuff."

Public spending ought to be focused on steering young lives away from prison rather than creating ever bigger jails to warehouse people in.

KEVIN STENT/STUFF Leading the debate: Chester Borrows, left, with Justice Minister Andrew Little at consultation launch.

Borrows says this means it also has to be a "whole of government" response. Too often, other ministries have been guilty of not wanting to be involved.

"A big chunk of those in jail never went to high school. Why is education never around the table so we can talk about how we're going to fix this? And why is it so hard to get the Ministry of Health around the table to talk about mental health and the way that's dealt with in prison?"

Then thirdly, Māori should be resourced to provide Māori solutions, Borrows says.

This is the most controversial recommendation. But Borrows says it has been talked about for 30 years.

New Zealand has to be honest and accept colonisation is an ongoing process, he says. Māori still live with economic disadvantage, a loss of language and identity, corralled into low-decile and vulnerable communities.

Borrows says there have been progressive steps like the introduction of rangatahi courts, marae justice panels, and restorative justice hui. However these have been aimed at youth and low level offending.

To ever bring down Māori prison numbers, do something about the fact they make up half of those in jail, funding and authority will need to be devolved so culturally-appropriate solutions can be developed, Borrows says.

ALL HUI, NO DOEY

The evidence and views have been assembled. Lambie's latest brain injury study has attracted particular attention because its numbers are so dramatic.

Lambie cautions the results need some interpretation. It is not that knocks to the head and FASD directly cause or excuse offending. More that compromised cognition will contribute to someone going down that pathway in life, he says.

Or more subtly, that neurological struggles can make it harder for offenders to make a good defence for themselves once they become entangled in the justice system.

If they lack focus and articulacy, they are likely to wind up with more prison time than would otherwise be the case, Lambie says.

SUPPLIED Cultural programme at Christchurch Men's Prison to reconnect Māori prisoners to their heritage.

But the scene has been set for sweeping potential reforms. So will the Government follow through now the consultation is done?

Tania Sawicki Mead, director of the justice lobby group JustSpeak, says the signs are not good because the Government doesn't appear to have even started with drafting a legislative response.

"All the reports tell us basically what we knew. So what we were hoping for at the beginning of this process was the Government would've at least set up a potential legislative agenda to get going on." Mead says just undoing some of the past bail and parole changes could have been a useful and easy first step.

Yet now we are into an election year, she says. And with NZ First as a coalition partner, Little may not have found much support around the Cabinet table to talk up radical new policy measures like a Whānau Ora-style bicultural justice system.

Borrows also sees politics at play. He says the National Party has started the year making law and order noises.

For instance, National leader Simon Bridges waded into February's Flaxmere child abuse investigation saying family witnesses who refused to talk to the police ought to face three years in jail.

Borrows says the calculation is probably that – being in coalition – NZ First will itself be constrained on the law and order rhetoric this election.

"What National seems to be doing is trying to grab New Zealand First's space in that debate."

But Borrows says Little may still surprise. It might not look like there is enough time to pass major pieces of legislation. However the next Budget could fund a lot of useful policy changes.

"People coming up for parole struggle to get a psychological assessment because Corrections decides they don't meet the criteria because they're not bad enough."

Fixing these kinds of small things would help the justice system do a fairer job and reduce New Zealand's incarceration rates that way, Borrows says.

He is also hopeful long-term arguments have been put in place.

Changing 30 years of going in one direction is going to take time, he says. But so long as politicians are willing to consider the evidence – understand why imprisonment rates are so high, and decide to tackle crime at its actual roots – then change will come eventually.

"Legislation's not dead. This is still going to set the agenda for the next 30 years for law and order policy in New Zealand. We've shown where we need to get to now," Borrows says.