One of the most dramatic indicators of ethnic inequalities in the criminal justice system is the high proportion of Māori in prison. Researchers both within New Zealand and internationally have discussed structural discrimination as a causal factor in the world-wide over-representation of indigenous peoples within justice systems.
The age-adjusted rate of imprisonment for Māori men is approximately seven times the rate for New Zealand European men and for Māori women the rate is approximately nine times that of European women. In December 2010, Māori made up 51 per cent of the prison population,158 despite accounting for only 15 per cent of the national population.159 The Commission’s annual review of race relations for 2010 reports that Māori were disproportionately represented in all areas of the criminal justice system, from victims of crime to those apprehended, in prison and serving community-based sentences.160
Criminologist Simone Bull, however, urges a more nuanced analysis of ‘Māori over-representation in the criminal justice system’. Known risk factors – such as youth, gender, unemployment, lack of education, and substandard housing – are infrequently used to gain a more accurate picture of ‘Māori offending.’ Bull argues that ‘we have never undertaken research to test whether Māori are still over-represented in the criminal justice system once you control for known criminogenic variables.’ Generalisations about Māori criminality which do not assess socio-economic factors, play a role in stereotyping Māori and perpetuating misinformation. Bull summarises the cyclical relationship: ‘colonisation generated broad social inequalities leading to deprivation, the deprivation causes the crime, causes the inequality, causes the deprivation.’ 161
Young Māori males, as Bull notes, are particularly disproportionately represented in the criminal justice system. On the high proportion of Māori youth in the justice system, Principal Youth Court Judge Andrew Becroft has recently said:
This is utterly unacceptable. Is it systemic bias? Is it the result of long term cultural disadvantage? It’s probably both.162
Te Puni Kōkiri’s recent report Addressing the Drivers of Crime for Māori notes that “In the New Zealand context, preferential investment in evidence-based programmes has inhibited the development of good empirical evidence about what works best for Māori.” The report goes on to say:
While there has been intermittent support for locally designed, developed and delivered programmes in New Zealand, these are often regarded as experimental and somehow of lesser quality than large scale imported programmes, and therefore not funded to the point that evaluation can be rigorously undertaken. For Māori, this history has been expensive and mainly unsuccessful in addressing complex issues such as offending.163
Genuine, comprehensive incorporation of Māori and Pacific values is dependent on the justice system engaging with Māori and Pacific people in programme design and implementation. In 2005 Judge Becroft described how tikanga, whānaungatanga and whānau can be appropriately incorporated into the justice process. Perhaps more importantly, he also explained that the question of whether and how these approaches should be incorporated is a question for Māori to answer. Judge Becroft wrote that:
There are few youth offending programmes and services designed specifically by Māori for Māori. Effective programmes should be staffed by Māori people with similar life experiences to their young charges.164
In addition to concerns about the lack of Māori and Pacific principles and presence in the justice system, there is evidence of biased practice. A 2007 report by the Department of Corrections –Over-representation of Māori in the Criminal Justice System – shows a higher likelihood for Māori offenders to have police contact; be charged; lack legal representation; not be granted bail; plead guilty; be convicted; be sentenced to non-monetary penalties; and be denied release to Home Detention. The evidence from this and other reports is summarised briefly below.
When considering the higher likelihood of Māori contact with police, Over-representation of Māori in the Criminal Justice System highlights Christchurch-based research. The research shows that Māori cannabis users were arrested at a substantially higher rate than other cannabis users questioned by the Police. On the basis of equivalent usage, Māori experienced arrest at three times the rate of non-Māori users.165 The Police Māori responsiveness strategy identifies the need for Police to build on relationships with Māori communities, iwi and whānau. University of Auckland criminologist Robert Webb has reported on research into international policing practices. The research found that ethnic groups viewed by society as more criminally prone tend to be over-policed.166
Societal attitudes contribute to an increase in both formal and informal profiling by Police, thereby increasing Māori arrest rates and entry into the justice system as offenders. For example, Māori are four to five times more likely to be apprehended, prosecuted and convicted than their non- Māori counterparts.167 These rates are higher when taking into account the age of offenders: Māori aged 10-13 are almost six times more likely to be apprehended than their New Zealand European counterparts.168
The Operation 8 raids in Ruātoki in 2007 are a more recent example of police practice that was damaging to relationships with a community and with Māori. Residents in the small Māori township of Ruātoki were searched by armed police, who also boarded a bus carrying young children. Valerie Morse, one of the Pākehā people arrested in the Operation 8 case, outside of Ruātoki, notes that for “the non-indigenous arrestees … the situation was starkly different”.169
The differences in convictions and sentencing for Maori and non-Maori illustrate evidence of structural discrimination and unconscious bias within the justice system sentencing process. The extent to which ethnic bias influences outcomes in the justice system can be difficult to pinpoint. Some of the ethnic bias for example, must also be taken into account in sentencing processes and Māori are over-represented as violent offenders. Based on the research, however, we suggest that offending history may also be affected by bias within the justice system. Nonetheless, there remains evidence of residual bias: when comparing offenders with similar histories, 3.6 per cent fewer Māori were given leave to apply for Home Detention and 2 per cent fewer Māori offenders were granted Home Detention.
In the area of convictions, Over-representation of Māori in the Criminal Justice System found that 79 per cent of Māori were convicted compared with 70 per cent of non-Māori. The report also considers sentencing and the frequency with which Māori receive more severe sentences. Māori were more likely to receive a prison sentence when compared to non-Māori. Between 11 per cent and 13 per cent of convicted Māori receive sentences of imprisonment, as opposed to 7-9 per cent of Europeans, a significant difference in imprisonment sentencing rates. The Corrections report concludes that although the effects of bias may be small when other factors are discounted, the high rate of Māori imprisonment indicates this bias may have a cumulative effect.
Over-representation of Māori in the Criminal Justice System also discusses the effect of detainees not co-operating with Police. A 1998 study suggests Māori and Police hold negative attitudes towards each other and Māori perceive Police as biased against them. These attitudes may decrease detainees’ willingness to co-operate with Police and in turn increases the likelihood that the Police officer will proceed with charges.
Another important factor to consider in examining structural discrimination in the justice system is the social and economic conditions for Māori that tend to increase the risk of involvement with crime. Social and economic inequality and adverse early-life environmental factors for Māori are well-documented. The extent to which these inequalities increase risk of involvement with crime is not fully known. Yet there is strong evidence of correlation between the two factors: bias within the justice system and increased risk due to inequitable social and economic conditions. Within this interplay, the existence of one factor makes the other more likely. Over-representation of Māori in the Criminal Justice System concludes that early intervention in health, social support and education is the most effective way to combat the high rate of Māori imprisonment. However, the report makes no specific recommendations about addressing bias.