Over-representation of Māori in the criminal justice system An exploratory report - PDF

Over-representation of Māori in the criminal justice system An exploratory report Policy, Strategy and Research Group Department of Corrections September 27 Executive Summary Introduction... 6

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Over-representation of Māori in the criminal justice system An exploratory report Policy, Strategy and Research Group Department of Corrections September 27 Executive Summary Introduction Purpose and structure of this report Previous work on over-representation Cautionary comments about statistical data Youthfulness of Māori population Differences in definitions and attribution of ethnicity Uncertainty about crime rates Criminal justice system bias and amplification Apprehensions Comment Prosecutions and convictions Sentencing Post-sentencing processes Home Detention Findings from Reconviction/Re-imprisonment Analysis Summary and Conclusion Early life environmental influences Introduction Early risk factors Family structure, context and processes Very young parents Childhood economic disadvantage Family characteristics Individual characteristics of the child Conduct disorder Educational participation, engagement and achievement Participation Achievement Engagement with schooling Alcohol and substance abuse Other findings from longitudinal studies Overall summary and conclusions Bibliography Appendix of statistics Apprehensions by offence category -25 (numbers) 2. Apprehensions, prosecutions and prosecution rates by offence category (- 25) Convictions by offence category Prison population School retention rates by ethnicity Socioeconomic Status and factors related with offending September 27 Executive Summary Māori are disproportionately represented in criminal justice statistics to an alarming degree. This paper attempts to shed light on why this is so. It examines the issue by considering the evidence for two different (though not mutually exclusive) explanatory approaches: that bias operates within the criminal justice system, such that any suspected or actual offending by Māori has harsher consequences for those Māori, resulting in an accumulation of individuals within the system; and that a range of adverse early-life social and environmental factors result in Māori being at greater risk of ending up in patterns of adult criminal conduct. These approaches are examined in the light of criminal justice data and research findings. Key conclusions with respect to the first approach can be summarised as follows: Disproportionality shows up strongly in Police apprehension figures, and a number of studies indicate that ethnicity in and of itself could have an influence in this area; Similar levels of disproportionality are recorded in prosecutions, convictions, sentencing and reconviction figures, but most of the disproportionality relates to known risk factors rather than ethnicity. With respect to the second approach, a range of developmental and early-age risk factors are discussed, each of which is known to be associated with a developmental pathway that increases the risk of (among other things) criminal involvement. These factors include: family structure, context, and processes (being born to young mothers, a lack of family stability, a family environment in which conflict and violence is common, and being exposed to harsh punishment); individual characteristics and experiences of the developing child and adolescent (factors affecting the child s neurological development, and psychological temperament); educational participation, engagement and achievement (school absence, early leaving age and failure to achieve qualifications); the emergence of developmental disorders (childhood conduct disorder, early onset of antisocial behaviour, and use/abuse of alcohol and other substances). Evidence for the extent to which Māori young people were disproportionately represented in these sub-groups was then reviewed. The conclusion of this part of the report was that, as a consequence of being exposed to a range of risk factors in social, economic and family circumstances, the over-representation of Māori in criminal justice statistics reasonably accurately mirrors the extent of criminal involvement amongst Māori, particularly younger Māori males. Those life circumstances most often associated with offending are, for a range of reasons, more likely to affect Māori families. 4 As noted, the two perspectives are by no means mutually exclusive, and both approaches appear to offer part of the explanation for the current state of affairs. The evidence points to an interaction between the two processes, where the operation of one set makes the other more likely. For example, early environmental influences may predispose individuals towards certain types of illegal or anti-social behaviour, which in turn raises the risk of Police involvement. Additionally, the risk of apprehension is amplified because of formal and informal profiling by official agencies, as well as society generally. There are indications of a degree of over-representation related solely to ethnicity, rather than any other expected factor, at key points in the criminal justice system. Although mostly small at each point, the cumulative effect is likely to be sufficient to justify closer examination and investigation of options to reduce disproportionate representation of Māori. Nevertheless, the primary domain for government intervention to address disproportionality is argued to reside in the areas of health, social support and education, in order to reduce disadvantage and the problems it confers. Criminal justice sector agencies could contribute to improving outcomes through early intervention strategies. 5 1. Introduction Relative to their numbers in the general population, Māori are over-represented at every stage of the criminal justice process. Though forming just 12.5% of the general population aged 15 and over 1, 42% of all criminal apprehensions involve a person identifying as Māori, as do 5% of all persons in prison. For Māori women, the picture is even more acute: they comprise around 6% of the female prison population. The true scale of Māori over-representation is greater than a superficial reading of such figures tends to convey. For example, with respect to the prison population, the rate of imprisonment for this country s non-māori population is around 1 per 1,. If that rate applied to Māori also, the number of Māori in prison at any one time would be no more than 65. There are however currently Māori in prison - six times the number one might otherwise expect 2. Further, a recent extraction of court criminal history data indicated that over 16, Māori males currently between the ages of 2 and 29 years have a record of serving one or more sentences administered by the Department of Corrections 3. This equates to more than % of all Māori males in that age band; the corresponding figure for non-māori appears to be around 1%. At any given point in time throughout the last decade, fully 3% of all Māori males between the ages of 2 and 29 years were in prison, either on remand or as sentenced prisoners; again, the corresponding figure for non-māori is less than one sixth of that. Over-representation in offender statistics is mirrored also by over-representation of Māori as victims of crime, a result of the fact that much crime occurs within families, social networks or immediate neighbourhoods. This state of affairs represents a catastrophe both for Māori as a people and, given the position of Māori as tangata whenua, for New Zealand as a whole. Far too many Māori, during what might otherwise be the most productive years of their lives (and, in terms of raising the next generation, some of the most critically important), end up enmeshed in the harsh, conflict-ridden and potentially alienating sphere of the criminal justice process. The effects on racial harmony are also pernicious. The figures lend themselves to extremist interpretations: at one end, some accuse the criminal justice system of being brutally racist, as either intentionally or unintentionally destructive to the interests and well-being of Māori as a people. At the other, there are those who dismiss the entire Māori race as constitutionally criminally inclined. 1.1 Purpose and structure of this report This report examines the over-representation of Māori in various points of the criminal justice system in order to answer the question of why the numbers of Māori are so high. The purpose of asking the question is to provide a basis upon which options to address the problem can best be formulated. However the report itself does not attempt to raise or examine possible options other than to illustrate the potential 1 Statistics New Zealand, ; 26 Census data indicate that Māori of all ages form 14.6% of the general population. 2 Even moderate success in addressing the issue of Māori over-representation could therefore reduce the size of the prison estate by over %, or + beds. 3 This includes imprisonment or community sentences such as Supervision and Community Work. 6 significance of various approaches. Neither does this report set out to be a comprehensive examination of the complex issues surrounding the question. There are many critical conceptual issues surrounding the cultural and political nature of crime which have not been comprehensively addressed, but which will be relevant to the interpretation of material presented here. It is focused on available empirical work, which is likely to be of more immediate use in policy development. The report approaches the issue by exploring in some detail two possible causal processes, which are expressed in the following explanatory approaches: 1 Justice system bias and amplification: that systemic factors operate at one or more steps of the criminal justice process which make it more likely for Māori to be apprehended, arrested, charged, convicted or imprisoned, with the result that Māori accumulate in the system in greater numbers. The amplification explanation posits that, whatever the real rate of criminal behaviour, any crime committed (or indeed suspected) is subject to systemic processes that make it more likely that Māori will be apprehended, and then dealt with more severely. These processes have variously been described as unintended consequences of discretion, unevenness of decision-making, bias and institutional racism. This possibility is explored through an examination of relevant justice sector data and related information, which are examined with reference to potential explanations for observed disparities (the absence of which might suggest - though not confirm - the operation of bias). 2 Early life environmental influence: that Māori over-representation in criminal justice statistics is a consequence of high numbers of Māori proceeding along a pathway that commences with adverse early-life disadvantage, and results in involvement, during adolescence or adulthood, in criminal activity. The approach taken in exploring this explanation may be explained simply as follows: it is well-known that children who experience developmental circumstances of certain types during childhood, and/or who display certain behavioural characteristics, are at higher risk of engaging subsequently in criminal conduct during late adolescence and adulthood. If over-representation of Māori children in these at-risk sub-groups is similar in scale to that which is found in current criminal justice statistics, then it might reasonably be inferred that the latter phenomenon is a consequence of the former. The possibility that these two processes in fact operate in tandem, in a mutually reinforcing manner, is also considered. Insofar as the evidence for either perspective justifies it, the report attempts to determine the relative contribution of each. This report has been structured in two strands in order to disaggregate a range of influences in a way that highlights particular issues which might need to be addressed by the government agencies accountable for the criminal justice sector. 1.2 Previous work on over-representation The attempt to understand Māori over-representation in criminal justice statistics has a substantial history. A great deal of work on this topic has been undertaken in New Zealand, particularly during the 197s and 198s. These attempts have resulted in a range of hypotheses being explored and put forward as explaining disparities in apprehensions or convictions. 7 Based on a thesis analysing records of arrests and charges amongst Māori and Pacific people in Auckland in 1966, Duncan (1971) 4 concluded that higher rates of offending resulted from effect of migration (Māori from rural areas to urban, Pacific from their home island nations to New Zealand). His expectation was that that the differences would disappear in the next generation as assimilation occurred, a view which now seems sadly optimistic. In 1972, his chapter in Racial Issues in New Zealand sets out a comprehensive picture of the mechanisms by which racial differences in criminal behaviour might occur, in ways that seem more relevant to contemporary New Zealand. He offers clear arguments for the effect of biased criminal justice processes, and outlines social mechanisms which would reinforce and increase these effects. A continuing cycle of negative evaluation of a minority, that minority s reaction to such an evaluation, and the subsequent reinforcement of that evaluation, all combine to make a Police ideal of impartiality almost impossible to maintain it is a small wonder that a disproportionate number of Polynesians appear in the courts and penal institutions. 5 Work by O Malley presented a conceptual approach informed by his small but thorough examination of Magistrates Court data; this showed higher conviction rates for Māori compared to s. His 1973 paper discussed a number of contextual factors (culture conflict, recent urbanization, low socio-economic status, high-risk mores, selective processing by control agencies) which he argued culminate in high[er] crime rates. 6 He noted that Māori were disadvantaged in comparison to s in court experiences - almost half as likely to have legal representation, possibly more likely to appear guilty (through a demeanour of fear and uncertainty that was liable to be interpreted as guilt by Pakeha), and less likely to appeal a guilty verdict. Delinquent behaviour was likely amongst young people recently arrived in the city and less subject to parental control and community sanctions on delinquent behaviour. Many of these factors still seem plausible. Several of the research papers from the Joint Committee on Young Offenders (JCYO) address ethnicity. 7 Report 2, from 1975, was based on a cohort of males born in 1957, examining the extent to which high rates of delinquency and offending amongst Māori could be explained by reference to socio-economic status. It concluded that high rates of offending amongst Māori were only partially explained by SES - accounting for 16-33% of the variance, and suggested that cultural values towards property, and the effects of urban dislocation, may be important factors A later report from the JCYO (198) 8, based on empirical analysis of court data, showed a dramatic increase in Māori youth offending relative to non-māori from the late 196s to early 197s. It is almost entirely focused on socio-economic 4 Duncan, L. S. W. (1971) Explanations for Polynesian Crime Rates in Auckland. Recent Law, October 1971, pp Duncan, L. S. W. (1972) Racial Considerations in Polynesian Crime. In: Vaughan, G. (ed.) (1972) Racial Issues in New Zealand. Auckland: Akarana Press. Quotation from pp O'Malley, P. (1973b) The Influence of Cultural Factors on Crime Rates. In: Webb, S. D. & Collette, J. (eds.) (1973) New Zealand Society - Contemporary Perspectives. Sydney: John Wiley & Sons Australasia Pty Ltd. 7 Fergusson, D. M., Donnell, A. & Slater, S. W. (1975) The Effects of Race and Socio-Economic Status on Juvenile Offending Statistics. Joint Committee on Young Offenders, Research Report No. 2. Wellington, NZ. 8 Fifield, J. & Donnell, A. (198) Socio-Economic Status, Race, and Offending in New Zealand. An Examination of Trends in Officially Collected Statistics for the and Non- Populations. Joint Committee on Young Offenders, Research Report No. 6. Wellington, NZ. 8 explanations, with any distortions from bias thought to be minimal, despite evidence that Māori were shown to be more likely to be reported, apprehended, sent to court, and convicted. Moana Jackson s influential 1988 paper 9 articulated a Māori research perspective which critiqued earlier work, particularly orthodox western empirical research based on scientific/quantitative methods requiring data based on individuals, and isolating factors in order to assess relative effects. This paper was something of a watershed: Jackson argued, on the basis of a Māori worldview, for greater recognition of the impacts of historical and cultural factors in Māori offending. He also noted that, within Māoridom, a communal rather than individualistic approach prevailed, and concluded that a parallel system was necessary to ensure justice for Māori. The potentially anti-empirical approach represented by Jackson illustrates what has become somewhat of a chasm, between advocates and researchers with a political or policy agenda, and researchers who endeavour to gather and analyse data, at times with insufficient regard to social or political context. Tensions also arise from methodological differences between research focused on individuals, and approaches which try to take into account collective and structural dimensions. There is however a good deal of statistically-based data now available which demonstrates correlations between ethnicity and outcomes. There is also much writing based on conceptual and socio-political perspectives (including of the effects of history and contemporary institutions), but there is very little synthesis between these approaches. 1.3 Cautionary comments about statistical data Youthfulness of Māori population Before discussing the range of possible explanations for different rates of Māori involvement, a simple source of disproportionality needs to be described. This is the younger age structure of the Māori population: Statistics New Zealand (SNZ) figures () indicate that around 25% of all Māori are aged between years, while just 2% of the non-māori population are. Given that most people caught up in the criminal justice system are in that age bracket, this demographic fact undoubtedly accounts for some of the disproportionality in numbers of Māori offenders; the likely relative contribution is discussed further below. This factor also underlies some of differences described in Section 3 of numbers of children of various ethnicities affected by risk factors in childhood Differences in definitions and attribution of ethnicity An issue creating added complexity within this field is the range of ways in which ethnicity is conceptualised, defined and measured. It has been suggested that ethnicity can be identified in three main ways 1 : on the basis of lineage, or whakapapa through descent because of some Māori ancestry self-identification, on the basis of cultural identification. 9 Jackson, M. (1988) The and the Criminal Justice System: He Whaipaanga Hou - A New Perspective, Part 2. Wellington: Department of Justice. 1 Fergusson, D, (c) Ethnicity and Interpersonal Violence in a New Zealand Birth Cohort in Violent Crime: Assessing Race and Ethnic Differences, (Ed.) Hawkins, DF, Cambridge University Press, pp In the criminal justice system another approach to definition is sometimes adopted - ethnicity as judged by the observer/recorder, based on the physical appearance of the subject. This approach occurs when information is recorded from victims or witnesses to crimes, and occasionally by police officers on patrol or making arrests. In practice, many situations arise where it is impossible, or impractical, to assess ethnicity according to statistically standard processes, and the field on t
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