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Losing the right to vote – racism in the criminal justice system

by Christine McCarthy
The release today of the Waitangi Tribunal’s report He Aha i Pērā Ai today is further endorsement of the ongoing challenges to section 80(1)(d) of the Electoral Act which denies all prisoners the right to vote. While many responding to He Aha i Pērā Ai will rightly zero-in on the significance of the Tribunal’s recommendation that section 80(1)(d) be repealed, the report has potentially greater significance for future criminal justice reform.

He Aha i Pērā Ai is clear that section 80(1)(d) disproportionately removes Māori from the electoral roll.

Since its introduction, there has been a significant rise in the number of Māori removed from the electoral roll. By 2018 Māori were 11.4 times more likely to be removed from the roll. It is apparent from this that section 80(1)(d) is one of the many instances of systemic racism in the criminal justice system. The Waitangi Tribunal heard of many others. A key expert witness was Associate Professor Khylee Quince. As the report states, Quince:

“explained that disparities emerge through a combination of over-policing, charging and conviction of Māori. Further, Māori are more likely to be remanded in custody pending disposition, and seven times more likely than non-Māori to be given a custodial sentence upon conviction. Meanwhile, Māori are less likely to be granted leave for home detention, or to receive a fiscal penalty. Once imprisoned, Māori are twice as likely as non-Māori to be denied parole and to serve out their entire sentence” (pp. 17-20).

On top of this any discrimination against, or maltreatment of, prisoners will always disproportionately impact on Māori prisoners because Māori are disproportionately incarcerated. It is not news that over 51% of prison population are Māori, a proportion which is grossly out of step with the statistic that Māori comprise only 15% of New Zealand’s population, and a fact which must be one of our country’s greatest embarrassments.

Underpinning the Tribunal’s findings is a comprehensive understanding that the treatment of prisoners is not narrowly confined to prisoners – nor to their time in prison. Instead it reverberates throughout society with significant ramifications for prisoners’ families and communities. This was clear from the revelation that removing people from the electoral roll while they are in prison becomes, for many, a permanent removal.

The Tribunal described this as “a de facto permanent disqualification” (p. 8) and they found that “disenfranchising Māori prisoners has continued to impact on the individual following release from prison and that impact extends beyond the individual to their whānau and their community” (p. 34). This disenfranchisment can also undermine the rehabilitation of ex-prisoners to wider NZ society. As Carmen Hetaraka, one of the claimants, put it:

“Expecting Māori prisoners to integrate into society upon their release, while excluding them from political participation while in prison, is foolish” (p. 24).

Parliamentarians may describe this “de facto permanent disqualification” as an unintended consequence, but this is not the first time legislation impacting on the criminal justice system has had significantly adverse effects. The Chief Scientist, Peter Gluckman, in his 2018 report on the criminal justice system, has identified “penal populism” as driving increases in the prison population. In this context he noted that

“Ministry calculations have shown that if no policy changes had been made since 2000, the estimated prisoner population would now be around 8,800, whereas the current prisoner population is around 10,600” (p. 9).

It is well known in penal reform circles that the legislation, such as the Bail Amendment Act 2013, have contributed to this increase. For example in 2017 JustSpeak calculated that the changes to the Bail Act were responsible for an increase of 1500 more people than anticipated in NZ prisons. Our current remand population – people innocent until proven guilty – is 3,474 people, over one third of the current prison population.

The 2010 amendment added prisoners serving three years or less to the prisoners denied voting. Other prisoners had previously lost the right to vote and this earlier disenfranchisement had a disproportionate impact on Māori prisoners. The significantly greater impact of the 2010 amendment on Māori was due to the fact that Māori are more likely to be serving shorter sentences.

As the Tribunal report states

“Māori are significantly more incarcerated than non-Māori for short periods of time and arguably, therefore, for less serious forms of offending” (p. 20).

You will recall Khlyee Quince’s statement from above: “Māori are less likely to be granted leave for home detention, or to receive a fiscal penalty.” This suggests that shorter sentences, where there might be greater scope for discretion in sentencing, are also an area where prejudice or systemic racial bias occurs. Earlier this year, in Britain, both the prisons minister (Rory Stewart) and the justice secretary (David Gauke) proposed abolishing short prison sentences. Short sentences increase reoffending compared with community sentences, are disproportionately expensive, and are extremely disruptive to prisoner’s lives. As UK’s chief executive of Women in Prison put it: short sentences “are enough to lose your home, children, and job and cause mental health [problems].”

In NZ, with the Tribunal’s reminder that Māori are disproportionately imprisoned for less serious forms of offending, perhaps we have added reason to be calling for the abolition of short sentences.

One of the persistent issues the Tribunal wrestled with was why prisoners were denied the vote in the first place. The Tribunal confessed:

“We have struggled to see any practical benefit to Māori, or the nation, from disenfranchising the prison population” (p. 30).

Seemingly, the only answer for this extra-judicial, punitive law is what is known as “penal populism.” This meant that the 2010 amendment, depriving all prisoners of a fundament right, was passed without an explicit reason justifying the amendment. As the Tribunal said:

“It seems unusual that an issue that would impact on such important matters as penal policy and electoral participation could be decided on this basis”.

He Aha i Pērā Ai is a welcome and strong statement in support of giving people in prison back their vote. Its careful and insightful report also sheds light on the disproportionate impact of prisons on Māori, the problems of penal populism as effecting illogical, unhelpful and discriminatory law, and the treatment of prisoners as impacting a much greater number of New Zealanders than just those who are incarcerated within Corrections real estate. The positive recognition of the Tribunal of the “measured and constructive” approach by the Crown in these proceedings (p. 33), departing from a history of adversial engagement, gives hope that positive steps might be achievable in the wider area of criminal justice and penal reform in the not too distant future.

Christine McCarthy is president of the Wellington Howard League, which this year initiated a parliamentary petition asking Parliament to “repeal section 80(1)(d) of the Electoral Act 1993 to enable all NZ prisoners to be eligible to vote in NZ elections.” Over 2,000 people signed the petition – more than half were prisoners.

17 comments:

  1. Brendan, 12. August 2019, 11:02

    Shouldn’t you forfeit something for being convicted of a crime? There is too much emphasis on perpetrators of crime and too little on the victims.

     
  2. Marlon Drake, 12. August 2019, 16:40

    Denying someone in prison their ability to vote is to say you are worth less than everyone else. That is an inhumane way for a Government to treat anybody, and denial of voting rights is a dangerous tool for a society to allow its Government to have. [via twitter]

     
  3. Mike Mellor, 12. August 2019, 17:11

    Brendan, isn’t losing their liberty enough for you?

     
  4. Brendan, 12. August 2019, 18:23

    MM – Loss of liberty? What about the loss of liberty for murdered people? Can they ever vote again? Prisoners should lose the right to vote whilst they are incarcerated. Once they have served their sentence they can rejoin society, get a job, pay some taxes, enroll in an electorate and cast their vote. And which electorate should a prisoner be in? I can think of some electorates where prisoners would represent a reasonable share of the voting population. How fair would that be for law abiding citizens?

     
  5. TrevorH, 12. August 2019, 19:52

    How is it “racist”? Prisoners of all races forfeit the right to vote. [If you read the article, you will learn that Māori are 11.4 times more likely than non-Maori to be removed from the electoral roll.]

     
  6. Steven, 12. August 2019, 21:08

    Going to prison and losing your freedom is the penalty. To then lose the right to vote is a travesty. What next, you are a prisoner, you have no right to health care? No right to visitors? No right to communicate with friends and family? Where does it stop – with an electric chair as in the ever pernicious US?

     
  7. TrevorH, 13. August 2019, 8:54

    I did indeed read the article. The fact that Maori are over-represented in the prison system has nothing to do with the electoral law.

     
  8. fmacskasy, 13. August 2019, 10:40

    If we want prisoners reintegrated into society; to be a part of our community, we MUST start whilst they are in prison. Sharing the value of voting for our representatives is a damned good start. [via twitter]

     
  9. He Who Counts, 13. August 2019, 14:26

    Voting does nothing to reintegrate people into a “society” or into a “community”. People are never “not integrated” into a society. Even as outcasts they are “outcasts in society”. People may think they are separate but the prisoners (who are people) are still part of society labelled criminals and locked away.

     
  10. Mathew Biars, 13. August 2019, 14:57

    “If voting really mattered they wouldn’t let you do it.”
    …and another good quote:
    “I firmly believe that if you vote, you have no right to complain. Now, some people like to twist that around.”

     
  11. Mike Mellor, 13. August 2019, 17:11

    Dostoyevsky said “The degree of civilization in a society can be judged by entering its prisons”, and he was absolutely right.

     
  12. Neil Douglas, 13. August 2019, 18:04

    Dostoevsky also wrote: “I wanted to murder, for my own satisfaction … At that moment I did not care a damn whether I would spend the rest of my life like a spider catching them all in my web and sucking the living juices out of them.” Crime and Punishment, Part 5, Ch. 4

    “Crime? What crime? … That I killed a vile noxious insect, an old pawnbroker woman, of use to no one! … Killing her was atonement for forty sins. She was sucking the life out of poor people. Was that a crime?”
    Crime and Punishment, Part 6, Ch. 7

     
  13. Jane C, 13. August 2019, 18:41

    Mike: Rather by how it treats its vulnerable. Prisons are not civilized as the very nature of crime is uncivilized. Legalized crime is not civil. That’s not to say there are not some people who are criminally insane and psychopathic and should be kept locked up.

     
  14. Adam, 15. August 2019, 14:31

    Whoever edited the comment by TrevorH is missing the point. The law to take away voting rights of prisoners was not put in to ‘punish’ Maori, but to ‘punish’ all prisoners. The ethnic composition of the prisoner population should not enter the discussion of the rule. Stop looking for racism everywhere.
    (that said, the debate about the right to vote of prisoners is worth having – it is not that clear to me.)

     
  15. Christine McCarthy, 15. August 2019, 19:30

    Adam this is a useful piece. It examines exactly the point you are raising – “Is the criminal justice system biased, or is this bleak statistic a symptom of societal imbalances?” The Radio NZ article states: “Corrections’ own figures bear out what she and many others have observed: Māori get harsher treatment at every stage of the justice pipeline to prison.”

     
  16. Ross Clark, 16. August 2019, 3:07

    I’m missing something here. When we say that “Maori are 11.4 times as likely as non Maori to be removed from the electoral roll”, is that value comparing the overall Maori and Pakeha populations, or the specific prison population? (ie are Maori prisoners 11.4 times more likely to be excluded than Pakeha prisoners?) There is a direct correlation between poverty and incarceration, and Maori are far more likely to be poor than Pakeha are; and poverty is the underlying issue.

    What I don’t have a handle on, is what differences there are between how Maori in the prison system are handled, compared with pakeha in the prison system; and why. Aside from the data provided above, if anyone could shed any further light …

     
  17. Adam, 16. August 2019, 17:05

    Christine, I suspect you misunderstood my post. I am not commenting on the bias of the justice system. I am pointing out that laws are made not to punish a subset of the population, but to deter *everyone*. I do not buy the argument that the voting rule we are discussing was put into place specifically to punish Maori.

     

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