The prison population was 9,798 prisoners as of September 2016. New Zealand has the second highest incarceration rate of all western industrialized countries: 208 prisoners per 100,000 inhabitants. The ccupancy rate was estimated at 106.1% as of June 2015 (latest figures available).
Prisoner numbers have tripled since 1985. A 10.36% increase was observed between 2015 and 2016. However, the Department of Corrections has acknowledged in the past that crime rates have been decreasing in the recent years.
The rise of the prison population is due to legislation such as the Bail Amendment Act, passed in 2013, the Three Strike Regime and changes to parole.
The Bail Amendment Act 2013 has been forcing more offenders to remain in remand custody. Pre-trial detention rates have gone from 21.6% in 2010 to 27.2% in 2016. The Salvation Army believes "[t]hese legislative reforms are quite intentional, and are consistently characterized by a specific ‘tough on crime’ narrative that portrays a ‘victim’ versus ‘offender’ dichotomy and assumes that prison is the pathway to public safety."1
There is a strict separation of pre-trial and sentenced detainees. There are five categories: remand accused, remand convicted, sentenced, voluntary segregated and youth. A parallel system takes into account security classification. The Sub-committee for the prevention of torture (SPT) of the United Nations (UN), considers that the complexity of this system was undermining prisoner’s rights: "the practical result is that detainees may be subjected to far greater restrictions in practice than their categorization would suggest, as staff struggles to find means of keeping them separate during the normal day to day running of detention facilities (including court cells, police stations and transport vehicles). The SPT is of the view that prolonged exposure to inappropriate regime conditions, such as those which it observed for remand prisoners and youth, can constitute ill-treatment."2
The prison system had 620 female inmates as of March 2016, an increase of 11% since September 2015, when the number of inmates was 585. The female incarceration rate is 13.3 per 100,00 of national population.
There are three women only prisons: Auckland Region Women’s Correctional Facility, Arohata Women’s Prison in Wellington, and Christchurch Women’s Prison. Auckland Women’s Corrections Facility is the biggest female prison. It was hosting 401 women as of December 2015. Arohata, the smallest one, was hosting 89 prisoners during that same period.
The Corrections Department announced, in June 2016, a construction plan that will double de operating capacity of the female Arohata Prison and will add a new high-security building.
The SPT noted on its 2014 report that young female offenders are not separated from adult ones.
Children aged 9 months to two years (depending on the prison) can stay with their mothers while they serve their sentences. The Corrections (Mothers and Babies) Amendment Act 2008 created "Self Care Units" and "Feeding and Bonding Facilities". The first are independent units that replicate a domestic space with a kitchenette and a sleeping room for the baby. The second are destined to mothers whose children are being cared by the community. Children can bond with their mothers for up to 12 hours a day in a space that replicates the lounge room of a regular house.
Juvenile offenders represented 3.8% of the prison population as of March 2016. They are held in four Youth Justice Residences, managed by the Ministry of Social Development. Keeping family ties can be difficult for families that live far from one of the four youth units where young offenders are held.
The age of criminal responsibility is set at 10 years old. At 17 years old, individuals who are charged with a criminal offence will appear in the District Court or High Court, not the young Court.
The Children Young Persons and Their Families Act regulates the two offending processes in the juvenile justice system: the child offending process (from 10 to 13 years) and the youth justice process (from 14 to 16 years old). Juveniles 10 to 13 can be imprisoned for murder or manslaughter; those 14 to 16 for murder, manslaughter and jury trial offences. Children aged 17 years old are considered adults and therefore are placed in regular prisons. However, they are separated from the general prison population in special youth units until they reach 21 years of age.
The SPT welcomes the fact that the juvenile justice department in New Zealand uses the imprisonment of a child as a last resort and only for the shortest appropriate period of time: 28% of offences committed by a minor end up in the Youth Court.
To address minor offences, the juvenile justice system implements Family Group Conferences (FGC) that hold accountable both the young person and the family. The FGC sets up a recommendation plan to prevent the minor from committing further offences.
The SPT has found Youth Justice Residences well structured and organized. Sentenced children, and sometimes also boys and girls, where intentionally mixed together in order to benefit their behaviour modification programs and activities.
Full time education is mandatory for minors aged 16 years old and younger. Young persons 16 to 19 years old may enrol voluntarily. The programs are usually completed via The Correspondence School.
The UN Working Group on Arbitrary Detention pointed a "growing trend" of juvenile offenders being held in police stations for long periods of time instead of being placed in Youth Justice Residences. There is no maximum time for pre-trial detention in the youth justice system.
The SPT received complaints of juveniles that had been locked up for long periods of times, sometimes up to 19 hours a day. General lock ups have been applied in the past "as a form of collective punishment following an infraction by a single individual."1.
Ethnic or religious minorities
Out of the 9,121 prisoners counted in December 2015, 50.6% were Māori, 32.5% were European, 11.4% were Pacific Peoples, and 3.5% were Asian1.
The UN Committee against Torture and the UN Working Group on Arbitrary Detention expressed concerns over the disproportionally high number of Māori imprisoned. They represent half of the entire prison population even though they make up 15% of the country’s general population. Māori women represent two thirds of the female prison population. It is important to note that only 1% of the Māori population are in jail.
Scholars point to multiple factors to explain the phenomenon of the Māori minority mass incarceration, such as socio-economic disadvantage dating back to colonial times, and systematic bias influencing court decisions.
There are five Māori Focus Units. These prison blocks, created in the early 2000s, address issues that are specific to the Māori minority. Offenders can approach their identity from a positive perspective, learn basic skills and prepare a life structure before their release (accommodation and whānau, family or community support)2. There are currently a few inmates in each prison with a Māori Focus Unit that can benefit from this program.
The SPT pointed out the lack of coherence between the programmes proposed in different Māori Focus Units: "[T]he SPT noted appreciatively that one residence was considering assisting young Maoris from distant geographical regions to maintain social and family bonds, whilst another had an initiative to draw on a Māori health provider". It also regretted the fact that there were no Māori Focus Units in Hastings and Rimutaka male prisons nor in any female prisons3.
The Homosexual Law Reform Act 1988 decriminalised consensual sex between men over 16. Sex between women was never criminalised. The Human Rights Act 1993 prohibits discrimination on the basis of sexual orientation (and implicitly) gender identity.
According to Rachel Leota, Corrections' deputy national commissioner, there were 20 transgender inmates as of October 7th, 2015.
The abolitionist group No Pride in Prisons defends the LGBTI community’s rights in prison.
The 2014 Transgender and Intersex Prisoner policy introduced the possibility for transgender women to demand a transfer to a female prison.
According to the Prisons Operation Manual, if the staff are not sure of the prisoner’s sex, the custodial system must decide if the person is placed in a male or female prison. If a birth certificate specifies the prisoner’s sex, the decision will depend on the gender specified on the birth certificate. It is possible to demand a review of the initial decision to the Corrections’ chief executive. According to rule M.03.05.02, the only reason why a person would be ineligible to a reassignment would be if the prisoner has being convicted for a serious sexual offence against a person of his/her nominated sex.
There are still cases in which transgender women are assigned to male prisons even though their security is at risk. For example, in February 2016, a transgender woman reported being raped by a prison guard on a gym stairwell at Whanganui prison. She also alleged that the prison staff did not investigate her previous complaints about sexual assault1.
The Department of Corrections deals with cases of transgender women being assigned to male prisons by placing them in solitary confinement for long periods of time2. This can take a serious toll on the inmates’ mental heath. Sociologist Ti Lamusse said: "I personally worked with a number of transgender prisoners who told me it was quite common to be put in 23-hour lockdown for safety. There are many resources that illustrate that when you are deprived of human contact for extended periods of time, you’re much more likely to become unwell and to commit suicide."3
In October 2015, a trans-woman inmate from South Auckland Correctional Facility, who had been placed in solitary confinement for security reasons, was forced to move into the main population area. She was beaten up by fellow inmates soon after. After a medical examination, a doctor decided she was no longer at risk of assault, and she was put into a cell with another prisoner that allegedly raped her. Police have opened an investigation into the case4.
New Zealand Law Society, "Policy changes on transgender prisoners: a step forward?", Nov 22nd 2013 ↩
"New Zealand's Transgender Prisoners Fear Double Bunking Will Lead to More Rape" in Vice, March 24th 2016 ↩